Law in the Time of COVID-19: the Coronavirus Act 2020

The Coronavirus Bill ("the Bill") was published on Thursday 19 March, accompanied by 58 pages of Explanatory Notes and a 76-page Impact Assessment.  As introduced to the Commons, its 329 pages contained a raft of emergency powers in 5 main areas:

(1) increasing the available health and social care workforce: this included powers to facilitate the emergency registration of health professionals (clauses 2-4) and social care workers (clauses 5-6) as well as leave and compensation for emergency volunteers (clauses 7-8), the indemnification of clinical negligence liabilities arising from NHS activities related to the coronavirus outbreak (clauses 10-12) and the suspension of pension rules for recently retired healthcare professionals who return to work (clauses 43-45);

(2) easing the burden on frontline staff: this included provision for the streamlining of procedures for mental health assessments (clause 9) and discharge procedures of those leaving acute hospital settings with social care needs (clauses 13-16), powers to vary the appointment process for and increase the number of Judicial Commissioners overseeing the Investigatory Powers Act 2016 (clause 21) and extend the lifespan of urgent warrant pending judicial approval (clause 22), powers to vary the vetting requirements for social and health care workers in Scotland and Wales (clauses 31-33), powers allowing vaccines to be administered by a wider range of health professionals in Scotland (clause 34), powers to direct the suspension of ports or diversion of arrivals (clause 48), powers to expand the availability of video or audio link in court proceedings while making provision for public participation (clauses 51-55) and flexibility in relation to the number of Treasury Commissioner signatures required for the Treasury to transact business (clause 67);

(3) containing and slowing the virus: this included powers to temporarily close, require provision or make directions in relation to educational institutions or registered childcare provider (clauses 35-36), powers to screen and isolate persons who have or may have coronavirus (clause 49), powers to prohibit or restrict events and to close premises to prevent, protect against or control the incidence or transmission of coronavirus or facilitate deployment of medical or emergency personnel and resources (clause 50) and powers to postpone the local, mayoral and other elections and recall petitions (clauses 57-66);

(4) managing the deceased with respect and dignity: this included provision for the streamlining of the registration of deaths and still-births, for example enabling doctors who have not seen the deceased to certify cause of death without referral to a coroner and allowing cremations to take place without additional medical practitioner oversight (clauses 17-20), the disapplication of the need for coroners to conduct an inquest with a jury for deaths where COVID-19 is the suspected cause (clauses 28-30), powers for local authorities in relation to the storage, transport and disposal of deceased bodies (clause 56); and

(5) supporting people: this included powers to sanction a member of the food industry refusing to comply with voluntary requests for information (clauses 23-27), powers in relation to Statutory Sick Pay including permitting its payment on the first three days of absence from work and enabling small businesses to reclaim it for coronavirus-related sickness absences (clauses 37-41) and the streamlining of procedures around changes to the system of national insurance contributions (clauses 69-70).

Prior to the publication of the Bill, the Joint Committee on Human Rights (“JCHR”) published a Briefing Note summarising the key human rights issues that were likely to arise from the Government’s response to COVID-19.[2] Secretary of State for Health Matt Hancock certified the provisions of the Bill as compatible with ECHR rights pursuant to section 19(1)(a) of the Human Rights 1998.[3] This is in keeping with the approach taken in most Council of Europe Member States, notwithstanding Latvia’s derogation from Articles 8 and 11 ECHR, Article 2 of Protocol 1 and Article 2 of Protocol 4 to the ECHR on 15 March 2020.  The Memorandum from the Department of Health and Social Care to the Joint Committee and Human Rights which responds to some of the issues foreseen by the JCHR runs to some 31 pages. It is replete with references to potential breaches of provisions of the ECHR, in particular, Articles 2, 3, 5, 6, 8 9, 11 and 14 ECHR.  

It is not difficult to conceive of some of the scenarios in which human rights issues might arise, for example:

• interferences with the rights protected by Articles 2, 3 and 8 ECHR by reason of changes to the procedures for mental health assessments and/or those in need of care and support assessments and provision;

• interferences with the right to liberty protected by Article 5 ECHR by reason of orders given to compulsorily isolate certain persons;

• interferences with the right to a fair trial protected by Article 6 ECHR by reason of decisions to press ahead with remote hearings in inapt circumstances and/or lengthy adjournments; 

• interferences with the right to religion protected by Article 9 ECHR by reason of interventions affecting the ability to hold funerals; and

• interferences with the rights to freedom of assembly and association protected by Article 11 ECHR by reason of prohibitions/restrictions on large gatherings.

Accordingly, it is important that the legislation contains as many safeguards against abuse and excess as possible, while enabling it to respond effectively to the public health emergency.

To this end, while in draft, the legislation was stated to be temporary and time-limited, necessary and proportionate and subject to appropriate scrutiny:

(1) The original Explanatory Notes stated that “the Bill contains temporary measures designed to either amend existing legislative provisions or introduce new statutory powers” which are designed to mitigate the effects of a COVID-19 pandemic.[4] Recognising that each part of the UK has its own set of laws, and that some of the powers needed to tackle the pandemic exist already in statute or do so in some parts of the UK, the Explanatory Notes referred to the need to “level up across the UK, so that the actions to tackle this threat can be carried out effectively across all four nations”.[5] Some of these existing powers are found in the Public Health (Control of Disease) Act 1984 which applies to notifiable diseases (which COVID-19 became on 5 March 2020) and pursuant to which the Health Protection Coronavirus Regulations 2020 were approved on 9 March 2020 (and will lapse after 2 years).  This Act applies only to England and Wales; the Bill therefore extends similar powers to Scotland and Northern Ireland (clauses 46-47).  Other such powers are found in the Civil Contingencies Act 2004 which permits the making of emergency regulations which are compatible with the ECHR, appropriate and proportionate to an emergency and would lapse after 30 days (to which the JCHR accepts the current situation amounts).  No such regulations have yet been made. [6]

(2) The Explanatory Notes also stated that “it is neither necessary nor appropriate for all of these measures to come into force immediately” [7] but many of the powers enabling them to do so will.  These include the provisions on the emergency registration of health professionals and social workers, indemnities for, changes in relation to judicial commissioners and changes to inquests with juries, vetting requirements, the closure of educational institutions and childcare premises, SSP, pensions and court proceedings to give a few examples (clauses 73(1)-(2)).

(3) The Government described the measures as “proportionate to the threat we face”, to “only be used when strictly necessary”. [8] This language of necessity and proportionality therefore featured in various places in the Bill, for example in relation to the giving of temporary closure directions in England and Wales in relation to the education (Schedule 15, paragraph 1(4)(b) and (5)(b)) and childcare (Schedule 15, paragraph 2(4)(b) and (5)(b)) sector and the powers in England to direct or remove people to places for screening and assessment (Schedule 20, paragraphs 6(3) and 7(3)) and keep them there (Schedule 20, paragraphs 13(6), 14(2) and 15(2)(b), (5)(b) and (9)(b)).  However, the language did not feature throughout the Bill. 

(4) The Explanatory Notes emphasised that “the legislation will be time-limited for two years”, moreover “the lifetime of the Act can itself be ended early, if the best available scientific evidence supports a policy decision that these powers are no longer needed.  It is also possible to extend the timeframe of the Act for a further temporary period, again if it is prudent to do so”. [9]  Accordingly, the sunset clause (clause 75) provided that many of the provisions in the legislation, but by no means all, would expire 2 years after it was passed, subject to the power to amend this date by secondary legislation making it earlier or later, the latter by up to a maximum of 6 months by an affirmative procedure which permits 40 day extensions without Parliamentary scrutiny (clauses 76 and 79). There were concerns that 2 years was too long given the time limit in the Civil Contingencies Act 2004 and other legislation [10] and that the affirmative resolution procedure was not symmetric vis-à-vis truncation and extension of the 2-year period and therefore open to abuse (see further below). [11]

(5) The Bill provided for two-monthly status reports to Parliament on the non-devolved provisions in Part 1 addressing whether the provision is in force and whether regulations have been made to bring it into force, suspend it or alter its expiry date (clause 83) and a debate about the on-year status report in both Houses one-year after operation (clause 84).  Again, there were concerns that this is insufficient debate insufficient frequently (see further below). [12]

The Explanatory Notes also identified that the Bill was emergency legislation and that the government intended to ask Parliament to expedite its parliamentary progress and pass it before recess on 31 March 2020. [13] Notwithstanding this, various amendments were tabled. [14] One such amendment sought to restrict the time span of the Bill with a sunset clause after 6 months which can be amended by affirmative resolution of each House.  It was unclear how this amendment would interact with section 76 of the Bill.  Another set of amendments sought to grant the powers only on a 6-monthly renewal basis and would do away with section 76. A third invited Parliamentary consideration of specified provisions, including those relating to the suspension of port operations, infectious persons and events, gatherings and persons, following the two-monthly status report.  A group of constitutional lawyers wrote separately to the Joint Committee for Human Rights proposing an amendment that seeks to make the language of necessity more central to the Bill, at least in the context of judging the interference with fundamental or ECHR rights by certain clauses, to require written reasons for any decision to use a power to interfere with a fundamental or ECHR right and a right of access to the courts without charge of court fees and unaffordable adverse costs. [15]

In the event, the Bill passed in the House of Commons on 23 March 2020 with its 2 year sunset clause and the asymmetric powers to extend or reduce that intact (now clauses 89-90 and 93) but with the inclusion – as a result of a Government concession –of a six-month Parliamentary review in the form of a debate on whether the provisions of the legislation should expire (now clause 98).  Other amendments made “on the voices” included powers to extend time periods for the retention of fingerprints and DNA profiles (clause 24), the disapplication of limits on financial assistance to business (clause 75), provision for an expansion of HMRC functions (clause 76), provision for the up-rating of Working Tax Credit (clause 77), protection from eviction from business tenancies (clauses 82-83) and powers to postpone Church of England General Synod elections (clause 84).

The Bill was introduced to the House of Lords on 24 March 2020 [16], where Lord Bethell of Romford has certified its provisions as compatible with ECHR rights pursuant to section 19(1)(a) of the Human Rights 1998. [17] Various amendments were tabled but ultimately either withdrawn or not moved, including amendments that would have truncated the period before the sunset clause to 3 months, that would have required three-month Parliamentary reviews and that would have stated that all powers under the Act were to be exercised in accordance with the Human Rights Act 1998, Equality Act 2020 and especially the principles of necessity, proportionality and non-discrimination.  The Bill was therefore passed unamended the following day and received Royal Assent the same day.  

Despite the rapid passage of the legislation through Parliament, the Coronavirus Act 2020 was not the principal basis for the Health Protection (Coronavirus Restrictions) Regulations (“the Regulations”) made on 26 March 2020 to give effect to the recently announced “lockdown”.  The UK and Welsh Governments made the Regulations under the Public Health (Control of Disease) Act 1984 while the Northern Ireland Regulations were made under the Public Health (Northern Ireland) Act 1967.  The relevant provisions of these Acts were then replicated in Schedule 19 of the Act to enable the Scottish Regulations to be made.  However, the Coronavirus Act 2020 remains the basis for a number of other measures, including the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020, the Investigatory Powers (Temporary Judicial Commissioners and Modification of Time Limits) Regulations 2020 and the Coronavirus (Retention of Fingerprints and DNA Profiles in the Interests of National Security) Regulations 2020.  No doubt it will grow in importance in the weeks and months ahead.

This article was first published on 23 March 2020 and updated on 24 March 2020; the most recent update to produce this version took place on 10 April 2020.

This article was written by Naina Patel.

References

[1] See Coronavirus Act 2020 available here: http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted/data.htm

[2] See Joint Committee on Human Rights Briefing Note (19 March 2020).

[3] See Coronavirus Bill (19 March 2020) p. 1. available here: https://publications.parliament.uk/pa/bills/cbill/58-01/0122/20122.pdf

[4] See Explanatory Notes, §§7-8.

[5] See Explanatory Notes, §§ 5-6.

[6] See Joint Committee on Human Rights Briefing Note, §§ 8-27.

[7]  See Explanatory Notes, §7.

[8] See https://www.gov.uk/government/publications/coronavirus-bill-what-it-will-do/what-the-coronavirus-bill-will-do

[9] See Explanatory Notes, §§7-8.

[10] See Rule of Law Monitoring of Legislation – Coronavirus Bill, Bingham Centre for the Rule of Law, available here: https://binghamcentre.biicl.org/documents/83_coronavirus_bill_rule_of_law_scrutiny_final.pdf

[11] See The Coronavirus Bill 2020: Public Law Project Briefing For House of Commons Second Reading, Chapter 2 available here: https://publiclawproject.org.uk/wp-content/uploads/2020/03/Public-Law-Project-Coronavirus-Bill-2020-Briefing_.pdf

[12] See also Rule of Law Monitoring of Legislation – Coronavirus Bill, Chapter 3 referred to above. 

[13] See Explanatory Notes, pp.19-20.

[14] See the House of Commons Committee of the Whole House Amendments on the Coronavirus Bill (23 March 2020) available here: https://publications.parliament.uk/pa/bills/cbill/58-01/0122/amend/coronavirus_daily_cwh_0320rev.pdf

[15] See, for example, https://www.opendemocracy.net/en/openjustice/democracy-autocracy-covid-19-exposing-crisis-uk-constitution/

[16] See Coronavirus Bill (24 March 2020) available here: https://publications.parliament.uk/pa/bills/lbill/58-01/110/5801110.pdf

[17] See Coronavirus Bill Explanatory Notes (24 March 2020) available here: https://publications.parliament.uk/pa/bills/lbill/58-01/110/5801110en.pdf