Legal footing for national unlocking in England

England’s government has set out regulations paving the way to the easing of all restrictions from 21 June, along with proposals to maintain support for the most vulnerable, businesses and public services.

Government support packages such as the Coronavirus Job Retention Scheme and Self-Employed Income Support Scheme have been rapidly rolled out under the Coronavirus Act.

The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 mean that from 29 March outdoor gatherings of either 6 people or 2 households will be allowed including in private gardens.

Review

The government has been clear that the roadmap out of lockdown is cautious, but irreversible. It sets out which measures must continue in order to protect the hard-won progress and ensure the nation can meet the four tests which will allow further unlocking to take place. A full review will be conducted in advance of moving to step 2 of the roadmap which will be 12 April.

Health Secretary Matt Hancock said: “We are setting out the legal foundations which deliver the roadmap out of lockdown.

“These measures have been vital to reducing infections, hospital admissions and deaths across the country, and thanks to people’s commitment and support, we have made strong progress.

“We are rightly ending as many national measures as safely as possible, while maintaining those which remain necessary and proportionate to help reduce and control infections further as we cautiously but irreversibly ease restrictions and our historic vaccination programme continues apace.”

The regulations replace the ‘all tiers’ regulations which were made to enact the tier system at the end of last year.

Background

A total of 12 provisions will be removed completely from the Coronavirus Act. This is in addition to the mental health powers that were removed in December for England:

• Sections 8 to 9 (applies to UK): emergency volunteers. These provisions were intended to come into force should the delivery of health services be at risk as a result of the pandemic. Despite the significant workforce pressure in health and social care, other measures such as NHS Professionals, other agency and bank staff and the Bring Back Staff (BBS) scheme have been more appropriate to address the need for trained clinical staff. As such, these powers have not yet come into force
• Section 15 (applies to England and Wales and will be expired for England): Care Act easements (DHSC). Some duties to local authorities are relaxed under this section, allowing them to streamline assessment and charge for care retrospectively. There is strong stakeholder support to remove this provision. Eight local authorities in England have used the powers but the power has not been used since 29 June 2020
• Section 24 (applies to UK) (Home Office): extension of time limits for retention of fingerprints and DNA profiles, allowing them to be held for an additional 6 months beyond normal deadlines. This power cannot be extended beyond the point the regulations expire in March without primary legislation
• Sections 25 to 29 (applies to UK) (Defra): requiring information from businesses and persons involved in the food supply chain. Gives the power to require information such as food supply disruption if there is refusal to provide it voluntarily. The information has been provided voluntarily and is not needed
• Section 71 (applies to UK) (HMT): signatures of Treasury Commissioners; allows a single Commissioner of HMT to sign instruments and act on behalf of Commissioners, instead of requiring a signature from all Commissioners
• Section 79 (applies to England) (MHCLG): extension of Business Improvement Districts (BID) arrangements. BIDs, local business partnerships established by voting, have now successfully completed ballots and 43 are due to introduce ballots before the expiry in March 2021
• Section 84 (applies to England) (MHCLG): postponement of General Synod elections. Allows the Queen to postpone the dissolution of the General Synod of the Church of England and so to postpone elections to the General Synod.

In addition, the following 3 provisions will also be suspended:

• Section 22 (applies to UK): appointment of temporary Judicial Commissioners (JCs)
• Section 23 (applies to UK): time limits in relation to, for example, urgent warrants under Investigatory Powers Act
• Section 58/schedule 2, part 2 (applies to UK and will be suspended in England): allows directions to be issued under part 2 if it was believed death management was not being organised correctly.

Vote

On 25 March, MPs have voted to extend the emergency coronavirus laws for another six months. A total of 484 MPs were for the motion, with 76 against giving a majority of 408.

This is valid as of 29th March 2021.

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