Written evidence from the Department of Health and Social Care (TYO 10)

 

Public Administration and Constitutional Affairs Committee

Coronavirus Act 2020 Two Years On inquiry

 

Executive Summary

 

 

Introduction and reason for submitting evidence

 

1.      The Department of Health and Social Care (DHSC) is the lead department for the Coronavirus Act 2020.

 

2.      DHSC has submitted this written evidence to address the points of interest emphasised by the committee, including:

 

The operational effectiveness of the Coronavirus Act 2020 and its interaction with other emergency legislation, including the Public Health Act 1984 and the Civil Contingencies Act 2004.

 

 

Operational Effectiveness

 

3.      The Coronavirus Act 2020 (“the Act”) gained Royal Assent on 25 March 2022 and contained a total of 84 provisions, 50 of which are non-devolved, which aimed to support the Government’s response to the Covid-19 pandemic. The Act was designed to help maintain critical public services and societal functions, support individuals and businesses and protect public health. The Act achieves this through five key areas:

4.      During the passing of the Act, the Government agreed to build in measures which facilitate accountability and transparency over the use of the powers. This includes two-monthly status reports on the non-devolved provisions, six-monthly reviews, debates, and renewal votes and a one-year review.

 

5.      Since the inception of the Act, the Government has published ten two-monthly reports[1], which have highlighted the impact the non-devolved powers have made in the fight against Covid-19, whilst highlighting the status of each provision and whether they have been expired or continue to remain necessary. and provide extensive detailed evidence of how the Government has met its obligations under the Act. The reports complement this written submission and will therefore be of assistance to the Committee as it considers the points identified in the Call for Evidence.

 

6.      The Act includes powers that have helped bolster the NHS by removing barriers to allow suitably experience people, such as recently retired NHS staff and social workers, to return to the workforce. As of 31 December, there were nearly 15,000 registrants on the NMC register, and as of 12 January, over 10,000 on the HCPC emergency register. There are also around 6,500 temporary social workers registered. The Act has also reduced the number of administrative tasks frontline staff have to perform, such as easing the regulations relating to the registration and certification of deaths and still-births. The Act has provided an invaluable level of support to people and businesses by making Statutory Sick Pay (SSP) payable from day 1 of a claim for those isolating and by facilitating the Coronavirus Job Retention (CJRS) and Self-Employment Income Support (SEISS) schemes. The CJRS has succeeded in supporting 11.7 million jobs and 1.3 million employers across the UK with employer claims totalling £70 billion, aiding businesses, and protecting livelihoods. The SEISS has paid out over £28 billion, across all five grants, to nearly 3 million self-employed individuals and has been one of the most generous schemes for the self-employed in the world. 

 

Relationship to other Emergency Legislation

7.      The Government’s response to the pandemic has required the use of existing tools, such as the Public Health (Control of Disease) Act 1984 (PHA) and the rapid development of new legislation, particularly the Act. This has given the Government the ability to tackle the public health threat and develop a broader package of support for people, businesses, and public services.

 

8.      The PHA is long-standing legislation, which provides powers to tackle disease outbreaks. Since the start of the pandemic all health protection regulations, including national restrictions, All Tiers Regulations, and the Roadmap Regulations, have been made under the PHA.

 

9.      However, the PHA does not provide the ability to mount the full-scale response required for this pandemic. As well as efforts to tackle the health impacts of the virus, it was critical that action was taken to support individuals, businesses, the economy, and public services. The capacity and resilience of the health and care systems needed to be shored up and the continued delivery of essential public services had to be protected. The Act has allowed the Government to deliver these goals.

 

10.  In addition, certain powers were introduced under the Act to complement powers made under the PHA, such as those under Schedule 22 (section 52), which gave powers to issue directions relating to events gatherings and premises. The intention was for the PHA to be generally used, with Schedule 22 only being used when the situation was out of the scope of these regulations, for example in relation to critical national infrastructure. This approach reflected the fact that the Act was drafted at a time of considerable uncertainty over the likely course of pandemic. In practice, the powers under Schedule 22 never needed to be used during the first 18 months of the pandemic, so were expired in December 2021, following the third six-monthly review of the Act.  

 

11.  Part 2 of the Civil Contingencies Act 2004 (CCA) allows for the making of temporary special legislation (emergency regulations) to help deal with the most serious of emergencies, without prior engagement in Parliament. It is intended only for use in the most urgent, necessary, and appropriate circumstances and where there is no other alternative means of legislating. Although the measures in the Act were urgent on this occasion, the Government believed it was both important and possible, within the timeframe, to provide an opportunity for prior Parliamentary scrutiny for the Act. This was considered preferable to making regulations under the CCA, where Parliamentary debate would take place after the legislation had come into force.

 

12.  This approach also provided greater legal certainty for the Government and other agencies who were responding to the pandemic, as well as to businesses and the general public. The CCA regulations would have required Parliamentary approval within seven days (if Parliament was still sitting or the regulations could have lapsed) and could have been amended at that point; could have been struck down in the Court as secondary legislation; and would have had to be renewed every 30 days. Further regulations would have been needed in April 2020, and every 30 days thereafter. After passing the Coronavirus Bill, the House agreed to a Government motion to bring Easter Recess forward, as a safety measure to mitigate the risks in both Houses. Whilst efforts were underway to find alternative ways of working, reviewing the regulations during this time would have required recalling Parliament, which would have been very challenging, given the public health position at the time. If Parliamentary approval could not be secured due to the restrictions of the pandemic, then the regulations would have lapsed. The CCA was, therefore, not an appropriate or straightforward stop-gap approach.

 

13.  The Government firmly believes the right approach was taken. Parliament went into recess shortly after the Act was passed and then changed its business arrangements in order to protect Parliamentarians and their staff, thereby limiting the opportunity for retrospective debate and repeat approvals.

 

The evidence and procedures underpinning the six-monthly and annual renewal processes for the Coronavirus Act 2020 since its entry into force in March 2020.

 

14.  When the Act was introduced, Government assured Parliament that the powers would only be in force for as long as they were necessary and deemed proportionate to respond to the pandemic. As such, the temporary provisions within the Act were given a two-year lifespan and are due to automatically expire as of 25 March 2022.

 

15.  Powers were included, in Part 2 of the Act, which allow for the suspension and revival of powers (section 88) and for powers to be permanently expired (section 90 (1)), before the two-year automatic expiry date, or extended beyond the sunset date (section 90(2)).

 

16.  Part 2 also includes powers to facilitate accountability and transparency over the use of the powers. There is a legal obligation for the Government to report on the non-devolved provisions of the Act to Parliament. However, there is not the same obligation for devolved matters. Each Devolved Administration (DA) has its own arrangements for reporting on these, and on other pandemic-related powers within their legislative competence, so the Government would not be held accountable for reporting on the devolved provisions. This approach has been agreed with the DAs and the Territorial Offices.

 

17.  The Secretary of State for Health and Social Care is required to prepare and publish a report on the status of the main non-devolved provisions in the Act relating to every two-month period during the operation of the Act. To date, ten such reports have been published. As per section 98 of the Act, the non-devolved, temporary provisions are subject to six-monthly reviews, debates, and renewal vote. Section 99 also provides for a review to be held at the one-year point. To date, three such six-monthly reviews have taken place during which Government has passed the motion that “the temporary provisions should not yet expire”. The one-year review and accompanying report was published in March 2021, which was also approved by Parliament.

 

18.  During each of these reviews, the Government has sought to balance the need to continue to respond effectively to the changeable course of the pandemic, whilst adhering to the commitment that only powers that remain necessary and proportionate will remain in force. A thorough, cross-Government, assessment of each temporary provision is undertaken to ensure each power that will remain in force is warranted, considering the current and likely future public health situation. Collective agreement is also obtained prior to finalising any decisions made to either expire powers early or to suspend them.

 

19.  Since the Acts inception, the Government has remained steadfast in its commitment to suspend and expire provisions no longer appropriate for the current status of the pandemic, exemplified by the robust challenge within government to maintaining temporary restrictions at each and every specified review point. As a result, to date, 50% of all non-devolved temporary provisions have been expired early (prior to automatic sunset on 25 March 2022). The first power to be expired on 10 December 2020[2], following the first six-monthly review, was section 10, which gave powers relating to mental health and mental capacity. In April 2021, 12 more provisions were expired[3] following the in-depth, one-year review. This included several provisions which had not been used (such as those around food supply). As part of the most recent review, a further seven provisions and parts of an eighth were expired as of 9 December 2021[4], bringing the total number of expired provisions to 20.

 

20.  Currently, there are 3 powers which have been suspended. In April 2021, section 22, which gives the power to appoint temporary Judicial Commissioners, and parts 2 and 3 of schedule 28 (section 58), which contains powers relating to the transportation, storage, and disposal of dead bodies, were suspended following the one-year review[5]. During the third six-monthly review, the other 3 parts under schedule 28 were suspended[6] as was section 81, which gave powers relating to residential tenancies[7]. In the case of provisions which have been suspended, the Government has determined that, although these powers are not currently needed, they could be required in certain public health scenarios. The sudden emergence of the Omicron variant has justified this precautionary approach. Whilst fortunately it appears that, thanks to the vaccination programme, Covid-19 deaths have not increased to levels which could overwhelm the death management system, the ability to revive section 58 powers rapidly is a vital contingency.

 

21.  It has been assessed that the temporary, non-devolved, provisions that remain in force continue to enable action in the five key areas outlined in paragraph 3 and continue to assist in achieving the balance between the Government’s social and economic priorities whilst preserving the health and safety of the country. A status table has been published and provides up to date information on the status of all provisions, including devolved provisions, in the Act. This is updated regularly, reflecting if any of the provisions have been suspended or repealed before reaching the automatic sunset of the temporary provisions in the Act, and is available on Gov.uk.

 

The transparency surrounding the use of data (including behavioural insights) in decision-making relating to the renewals of the Coronavirus Act 2020.

 

22.  The Government recognises the vital importance of Parliamentary scrutiny and, as noted in paragraph 17, has built in checks and balances on the use of the provisions within the Act. Every two months, the Government is required to publish a report on the status of the non-devolved powers in the Act. These reports have been able to act as a mechanism to provide transparency on the reasoning behind decisions made on retention or early-expiry of provisions, and the rationale around the timing of each decision.

 

23.  The reports must set out for each of the provisions: (a) whether it is in force at the end of each two-month period, and (b) whether Ministers have, during that period, exercised powers under the Act to change the status of any provisions. Since the inception of the Act, DHSC has improved the level of detail contained within these reports to include a comprehensive account of the impact that the provisions have had during each two-month period. DHSC works with the Other Government Department policy leads and their analysts, to collate evidence systematically and routinely on usage and impact of every provision within the Act, including both quantitative and qualitative data, for each required reporting period. This ensures all information is verified by both departmental experts and DHSC leads prior to final publication into the public domain.

 

24.  Similarly, the requirement to hold six-monthly debates means that Ministers are required to regularly debate and gain fresh permission from Parliament to maintain the temporary provisions. This ensures transparency and strong justifications for decisions made ahead of voting for the Act to remain in force.

 

The circumstances and process under which Section 90 of the Coronavirus Act 2020 can and/or should be used to extend measures beyond their sunset clause.

 

25.  As noted above, part 2 of the Act contains the powers to alter the expiry date of provisions. This also includes the powers for provisions to be extended beyond their automatic sunset date, under section 90(2), by way of Statutory Instrument (SI). As per section 93(2) and (5), should an extension be required, regulations can be made under either the draft affirmative or the made affirmative procedure to achieve this outcome. The requirement to provide two-monthly reports and the six-monthly renewal vote (outlined in paragraph 17) will continue, so long as there is at least one temporary, non-devolved provision in place beyond 25 March 2022.

 

26.  The Government has identified several provisions which have been of great public benefit and have the potential to improve people's lives in the long term and should therefore be retained. Such measures are being pursued through alternative legislative vehicles. This includes section 30 of the Act, which allows the suspension of inquests without a jury where Covid-19 is suspected as the cause of death, which the Government is seeking to make permanent through the Judicial Review and Courts Bill; and sections 53-55 enabling virtual court hearings, which have been incorporated into the Police, Crime, Sentencing and Courts Bill.
 

27.  Throughout the lifespan of the Act, Parliament has rightfully challenged the Government to adhere to their commitment for the Act to remain as temporary legislation and to be expired in March 2022 as originally agreed, if not earlier. Within the Covid-19 Response: Autumn and Winter Plan 2021, the Government committed to reviewing the Act and other remaining regulations and measures in Spring 2022 The Government will review the Act over the coming months, in the context of the current public health situation and latest epidemiological data, to decide whether any provisions need to remain in place after the automatic sunset date, such as those highlighted in paragraph 26. Any such decision will receive Collective agreement and will be subject to the approval of Parliament.

 

January 2022

 

 


[1] Coronavirus Act reports - GOV.UK (www.gov.uk)

[2] The Coronavirus Act 2020 (Expiry of Mental Health Provisions) (England and Wales) Regulations 2020 (legislation.gov.uk)

[3] The Coronavirus Act 2020 (Early Expiry) Regulations 2021 (legislation.gov.uk)

[4] The Coronavirus Act 2020 (Early Expiry) (No. 2) Regulations 2021 (legislation.gov.uk)

[5] The Coronavirus Act 2020 (Suspension: Transportation, Storage and Disposal of Dead Bodies etc) (Wales) Regulations 2021 (legislation.gov.uk)

[6] The Coronavirus Act 2020 (Suspension: Disposal of Bodies) (England) Regulations 2021 (legislation.gov.uk)

[7] The Coronavirus Act 2020 (Residential Tenancies and Notices) (Amendment and Suspension) (England) Regulations 2021 (legislation.gov.uk)