The Prime Minister has stated that he will allow all remaining temporary provisions of the Coronavirus Act to expire on 25 March 2022 as is written into the Coronavirus Act. I welcome this announcement.
There has been a great deal of confusion about the Coronavirus Act and how the Government has used it. The Coronavirus Act did give the Government sweeping powers to introduce measures in response to the Covid-19 pandemic such as closing businesses, schools, and restricting gatherings. However, these powers in the Coronavirus Act were not used by Government to implement lockdowns and restrictions. Furthermore, the powers to do these things under the Coronavirus Act were removed by Government last year.
Overwhelmingly, significant restrictions introduced in response to Covid-19, including lockdowns, restrictions on social gatherings, the closing of businesses and mandatory mask wearing, have been implemented under the Public Health Act 1984.
That is why I have been campaigning for a new Public Health Act. You can learn about the proposals here:
You can find out more about the pieces of legislation used during the pandemic through the Hansard Society’s Coronavirus Dashboard:
Some parts of the Coronavirus Act are permanent. Permanent provisions remain law unless and until they are repealed by primary legislation. Many of the permanent provisions are not particularly objectionable or are time limited (times that have already passed). They include the ability to temporarily register health professionals and the ability to postpone the May 2020 elections. A table can be found at the end of this blog post that details the permanent provisions of the Coronavirus Act.
All of the Coronavirus Act’s provisions that are not permanent are temporary provisions. All temporary provisions expire on 25 March 2022. The Government does have the power to extend provisions by up to six months at a time and so it is possible for a temporary provision to never actually expire. However, the Prime Minister has indicted that the Government will not extend any of the temporary provisions. Many of the temporary provisions that remain in the Coronavirus Act seem unnecessary to me but, again, they are not significantly objectionable.
The Temporary Provisions That Will Expire On 25 March 2022 as Things Stand
|What is it about?
|NHS continuing assessments – allows the NHS the option not to comply with the requirement to carry out Continuing Healthcare (CHC) assessments before discharge from hospital.
|Registration of deaths and still-births – reduces the burdens placed on frontline services and assist in the managing of the deceased with respect and dignity. Without this, deaths would have to be registered in person by informants and additional natural deaths would need to be referred to the coroner.
|Medical certificates and cremations – removes the requirement for provision of a confirmatory medical certificate from a second medical practitioner, independent of the first, to accompany an application for cremation.
|Subsection 11 is permanent – this relates to those who died during the period the section is in place but is not yet cremated when the section expires.
|Appointment of temporary Judicial Commissioners – allows the Secretary of State, on a request from the Investigatory Powers Commissioner, to make Regulations to provide for temporary judicial commissioners (JCs) to be appointed by the Investigatory Powers Commissioner, in the event that there are insufficient JCs available to effectively fulfil their functions under the Investigatory Powers Act 2016.
|Suspended – there is a temporary freeze on this provision. It can still be “revived” unless and until it has “expired”.
|Suspension of requirement to hold inquests – allows the majority of inquests where Covid-19 is suspected as the cause of death to take place without a jury.
|Section 38/Schedule 17
|Continuity of education/training/childcare – schedule 17 confers two main powers: a power to make a temporary continuity direction, and a power to issue a notice disapplying or modifying one or more of a set of enactments listed in the Schedule.
|Partly expired – the ability to disapply or modify 19 out of 29 provisions in other legislation, has been expired.
|Statutory sick pay: employers’ liabilities – allows small and medium employers with fewer than 250 employees to claim back the costs of two weeks’ SSP for absences related to coronavirus. The rebate scheme is an important part of the Governments wider package of support to employers.
|Statutory sick pay: disapplying waiting period limit – allows for the suspension of the waiting days’ rule for absences related to COVID-19 and regulations were introduced under these powers to disapply waiting days for coronavirus related sickness absences. It means that SSP is payable from day one for employees who are unable to work as a result of COVID-19 and therefore provides additional support for impacted employees.
|Statutory sick pay: modifying regulation powers – allows for regulations which provide for employees to be treated as incapable of work (and therefore eligible for SSP) to do so by reference to the latest guidance issued by the UK health authorities. This ensures that regulations can keep in step with the latest guidance, for example with new categories of employees who are required to self-isolate and as a result of being considered incapable of work.
|Provision facilitating retired NHS staff to work – allows retired and partially retired staff to do more work for the NHS without having their pension benefits suspended.
|In September 2021 DHSC confirmed to the NHS that the measure will not be up for extension when the Coronavirus Act expires. This effectively created a 6-month notice period to allow for staff and employers to adjust to the return to business as usual.
|Section 50/Schedule 20
|Powers to suspend port operations – allows the Secretary of State to direct a port operator in the UK to suspend relevant operations and to issue consequential directions to other parties if the Secretary of State considers it appropriate in connection with the primary direction.
|Section 53/Schedule 23
|Expansion of “live links” in criminal proceedings.
|Section 54/Schedule 24
|Expansion of “live links” in criminal hearings.
|Section 55/Schedule 25
|Public participation in court proceedings by video link.
|Section 58/Schedule 28
|Powers related to the transportation, storage and disposal of dead bodies – allows national or local governments to take control of a component or components of the death management process.
|Suspended – this is a temporary freeze on a provision. It can still be “revived” unless and until it has “expired”.
|Financial support limits under the Industrial Development Act 1982 – facilitates the provision of financial support to business affected by Covid-19.
|Subsection 1 is permanent – an explanation of subsection 1 can be found in the permanent provisions table.
|Section 81/Schedule 29
|Residential tenancies: protection from eviction – gives tenants more time before the landlord is able to bring possession proceedings and thus delays the point at which the tenant may be required to leave their home.
|Schedule partially suspended – an SI was laid on 8 September which returned notice periods in England to pre-Covid lengths from 1 October 2021 whilst retaining the ability to reapply longer notice periods until 25 March 2022 as a backstop, should the future public health situation warrant a further extension.
|Business tenancies: protection from forfeiture – prevents landlords of commercial properties from being able to evict tenants for the non-payment of rent.
The Permanent Provisions of the Coronavirus Act
|What is it about?
|Meaning of the term “coronavirus”.
|Section 2 and Schedule 1 (so far as they— (i)make provision about a person who has been registered in any register by virtue of that Schedule, or (ii)make provision for or in connection with the revocation of a person’s registration)
|Temporarily registering health professionals – provides the power to Registrars of the Nursing and Midwifery Council and Health and Care Professions Council to temporarily register professionals to their registers on the grounds of an emergency involving loss of human life or human illness as advised by the Secretary of State.
|Section 5 and Schedule 4 (so far as they— (i)make provision about a person who has been registered in any register by virtue of that Schedule, or (ii)make provision for or in connection with the revocation of a person’s registration)
|Temporarily registering health professionals – provides the power of temporary registration to the Pharmaceutical Society of Northern Ireland who may have been prevented from doing so by The Pharmacy (Northern Ireland) Order 1976 (such as recently retired pharmacists), when the Department of Health for Northern Ireland directs them that an emergency has occurred or is occurring.
|Section 6 and Schedule 5 (so far as they— (i)make provision about a person who has been registered in any register by virtue of that Schedule, or (ii)make provision for or in connection with the revocation of a person’s registration)
|Temporarily registering social workers – the same power of temporary registration as Section 2 and Schedule 1 in lieu of emergencies involving loss of human life or human illness with respect to social workers registration to Social Work England.
|Sections 11, 12 and 13
|Protections for health workers – Relevant authorities in all parts of the UK can provide indemnities to health service workers in connection with potential liabilities that arise from caring, treating or diagnosing those with coronavirus.
|Powers for Scottish Ministers to issue guidance – gives Scottish Ministers the power to give guidance to Scottish local authorities on exercising duties and functions regarding the assessment and provision of health and social care in consequence of Section 16 of the Coronavirus Act.
|Section 19 (11)
|Medical certificates for cremation – extends the permission of Section 19, which removes the requirement of a medical certificate for cremation, so that it applies after the section is repealed to anyone who died while Section 19 was enacted.
|Has the same effect as Section 19(11) for those who live in Northern Ireland.
|Section 59 to 70
|Postponing elections – provided the power to postpone elections and recall petitions that were due to be held from 16 March 2020 to 5 May 2021 such as the May 2020 Local Elections.
|Section 72 to 74
|Temporarily modifies the procedure surrounding the introduction of changes to National Insurance contributions.
|Financial support for industries – Removes the spending limitations on providing financial support to industries from the Industrial Development Act 1982 if that assistance is to prevent, reduce or compensate for actual or anticipated effects of coronavirus.
|Grants the Treasury power of direction over functions for Her Majesty’s Revenue and Customs in relation to coronavirus.
|Parts 2 to 5 of Schedule 7, and section 8
|Provides for the employment rights for any individual who takes emergency volunteering leave.
|Part 3 of Schedule 8, and section 10(1) and Part 1 of that Schedule
|Deals with the transitional provision of alterations to the Mental Health Act 1983 made by the Coronavirus Act 2020.
|Parts 3 and 4 of Schedule 10, and section 10(3) and Part 1 of that Schedule
|Deals with the transitional provisions of alterations to the Mental Health (Northern Ireland) Order 1986 made by the Coronavirus Act 2020.
|Parts 3 and 4 of Schedule 11, and section 10(4) and Part 1 of that Schedule
|Deals with the transitional provisions of alterations to the Mental Capacity Act (Northern Ireland) 2016 made by the Coronavirus Act 2020.
|Paragraphs 3(2) and (3), 10, 13, 18, 30, 33 and 35 of Schedule 12, and section 15 and paragraphs 1 and 19 of that Schedule so far as relating to those paragraphs
|Provision of care for local authorities – provisions modifying the powers and duties of local authorities in England and Wales in relation to the provision of care and support during emergency periods. The Secretary of State may issue guidance about how local authorities are to exercise functions under these powers.
|Paragraphs 8, 9, 15, 16 and 30 of Schedule 13, and section 18 and paragraphs 1, 10 and 17 of that Schedule so far as relating to those paragraphs.
|Provisions relating to the registration of deaths and still-births.