Clause 46 and Schedule 17: Powers to act for the protection of public health: Northern Ireland
371 This Schedule inserts various provisions as Part 1A into the Public Health Act (Northern Ireland) 1967. It provides a power for the Department of Health in Northern Ireland to make regulations to allow for measures to be introduced to help delay or prevent further transmission of covid-19, which presents or could present significant harm to human health. References below to "sections" are to the sections of the inserted Part 1A.
372 The Schedule provides powers that enable the Department of Health in Northern Ireland to make regulations for preventing danger to public health from conveyances (or the persons or articles on those conveyances) arriving at any place or for preventing the spread of covid-19 by conveyances leaving any place. It also provides a power for regulations to give effect to international agreements or arrangements, for example World Health Organisation recommendations. There is also a power to make regulations to prevent, protect against, control or provide a public health response to the incidence or spread of covid-19 in Northern Ireland.
373 Compulsory medical treatment, including vaccination is excluded from the ambit of the regulation-making powers.
374 Powers are also given to magistrates’ courts to order health measures in relation to people, things and premises. Provision is made in relation to the evidence the Department of Health must make available to the court.
375 Only the Public Health Agency may apply for an order but an affected person, in addition to the Public Health Agency or any other authority with the function of executing or enforcing the order in question, can apply for the order to be varied or revoked.
376 It is an offence to fail to comply, without reasonable excuse, with a restriction or requirement imposed by or under an order of a magistrates’ court or to wilfully obstruct anyone executing the order.
377 The Assembly procedures for making regulations under this Part in different circumstances are set out. Regulations of a kind to which draft affirmative procedure would normally apply may be made and brought into effect immediately if they contain a declaration that the Department of Health in Northern Ireland is of the opinion that it is necessary by reason of urgency for them to be made without a draft being approved under that procedure.
378 There are powers of entry for a person authorised by the Public Health Agency to carry out functions and it is an offence to wilfully obstruct an authorised officer in execution of such powers.
379 Offences are also created for bodies corporate. There is a special extended time limit of up to 3 years for prosecutions for these new offences when certain conditions are met.
380 The territorial extent and application of the clause and the schedule is Northern Ireland.
Clause 47 and Schedule 18: Health Protection Regulations: Scotland
381 The Schedule provides Scottish Ministers with a power to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland. The threat can come from inside or outside Scotland.
382 Paragraph 1(3) gives examples of particular provisions which might be made. For example, the regulations could impose restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health. This includes "special requirements", which are defined at paragraph 4 and include (amongst other things) requiring a person to submit to medical examination, be detained to a hospital or other suitable establishment and be kept in isolation or quarantine. The ability to make provision in relation to these types of measures is considered necessary in the context of a widespread covid-19 outbreak. Special requirements also include requirements relating to seizure and disinfection of things and the closing and disinfecting of premises.
383 The following measures are not regarded as special restrictions or requirements: a requirement to keep a child away from school; a restriction on the holding of an event; or a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies or the handling, transport or disposal of human remains.
384 Paragraphs 2 and 3 restrict how the power under paragraph 1 can be used. Paragraph 2 puts in place restrictions to ensure that any restrictions or requirements authorised by the regulations will be used proportionately. In particular, paragraph 2(3) prohibits regulations from enabling the imposition of a special restriction or requirement unless certain conditions are met. Those conditions are that there is a serious and imminent threat to public health when the regulations are made or the decision to impose the restrictions or requirements is expressed in the regulations to be contingent on there being such a threat at the time the decision to impose them is made. Paragraph 3 makes clear that the regulations could not be used to make a person undergo medical treatment (including vaccination).
385 Paragraph 5 makes further provision about the regulations. For example, it provides that the regulations can create offences and can provide for appeals and reviews of decisions taken under the regulations. It also sets out the maximum penalties which can be imposed if offences are created. Paragraphs 5(5) and 5(6) also set out particular requirements in relation to appeals and reviews of a decision which imposes a special restriction or requirement.
386 Paragraph 6 provides that the procedure for regulations made under paragraph 1 will be the affirmative procedure, unless Scottish Ministers consider that the regulations need to be made urgently. If they do, an emergency procedure applies. This is considered necessary to ensure that Scottish Ministers can make regulations quickly in response to a covid-19 outbreak.
387 The territorial extent and application of the clause and the schedule is Scotland.
Clause 48 and Schedule 19: Power to suspend port operations
388 These provisions give a power to the Secretary of State to give a direction to a person responsible for the management of an airport, seaport or an international rail terminal in the UK requiring them to suspend such operations that are specified in the direction.
389 In order to give such a direction, the Secretary of State must consider that there is real and significant risk that, due to the incidence or transmission of covid-19, there are, or will be, insufficient Border Force officers available to maintain adequate border security. The Secretary of State can only use this power if they have already taken all reasonably practicable measures to mitigate the risk.
390 There is a high threshold for the use of the power. This clause establishes the conditions which must exist before the Secretary of State may give a direction, namely that the Secretary of State must consider that there is real and significant risk that, due to the incidence or transmission of coronavirus disease, there is, or will be, insufficient Border Force resources available to maintain sufficient border control functions and that, before making a direction, the Secretary of State must have taken all reasonably practicable measures to mitigate the risk. This clause sets out the details which must be specified in any direction, namely the operator, the specific port operations which are to be suspended, the time at which the direction comes into effect and the duration of the suspension period and any incidental arrangements.
391 The initial suspension period may last for no longer than six hours. This can be extended by notice for 6 hours in the first instance, and for further periods of up to 12 hours each after this.
392 Where a suspension direction has been given, the Secretary of State may also give written direction to any person (specified in the direction) to make arrangements or take steps, which the Secretary of State considers appropriate in consequence of the primary direction. This could include requiring a person to take action to secure the safe arrival of a vessel, aircraft or train at an alternative port.
393 The Secretary of State must notify the Devolved Administrations when a suspension direction or notice is issued.
394 The schedule establishes a summary-only offence of failing to comply with a direction under this schedule without reasonable excuse. There are different maximum sentences established in each jurisdiction.
395 The provisions of the schedule bind the Crown.
396 The territorial extent and application of this clause is England and Wales, Scotland and Northern Ireland.
Clause 49 and Schedule 20: Powers relating to potentially infectious persons
397 The clause and Schedule confer certain powers on public health officers, constables and immigration officers for the purposes of protecting the public from the health risks associated with the covid-19.
398 The provisions will apply in relation to England, Scotland, Wales and Northern Ireland, respectively, where the relevant authority for that territory is of the view that there is a serious and imminent threat to public health due to the incidence or transmission of the covid-19, and that the exercise of the powers will be an effective means of delaying or preventing significant further transmission of the virus; and has made a declaration to that effect. The relevant authorities are: for England, the Secretary of State; for Scotland, the Scottish Ministers; for Wales, the Welsh Ministers; and for Northern Ireland, the Department of Health.
399 The provisions confer powers on public health officers to require persons to go to suitable place to undergo screening and assessment where they reasonably suspect the person has or may have covid-19, or has been in an infected area within the 14 days preceding that time. Such persons are referred to in the provisions as "potentially infectious" persons. There are additional powers for public health officers to impose other appropriate restrictions and requirements upon potentially infectious persons where they are necessary and proportionate, such as a requirement to remain in isolation, restrictions on travel, activities and contact with other people. The provisions also confer powers on public health officers and constables to enforce the restrictions and requirements imposed under the schedule.
400 The clause and schedule also confer certain powers on immigration officers and constables in relation to persons whom they have reasonable grounds to suspect as being potentially infectious. An immigration officer or a constable may direct such a person to go to a place suitable for screening and assessment, or may remove a person to such a place to undergo screening and assessment, or to keep that person there for a time-limited period to be handed over to a public health officer for the same purpose. In exercising their powers under these provisions, immigration officers and constables will be obliged to consult a public health officer, so far as practicable to do so.
401 The Bill will revoke The Health Protection (Coronavirus) Regulations 2020.
402 The territorial extent of these provisions is England and Wales, Scotland and Northern Ireland. The application of Part 1 of the schedule is England and Wales, Scotland and Northern Ireland. The application of Part 2 of the schedule is England. The application of Part 3 of the schedule is Scotland. The application of Part 4 of the schedule is Wales. The application of Part 5 of the schedule is Northern Ireland.
Clause 50 and Schedule 21: Powers to issue directions relating to events, gatherings and premises
403 The clause and Schedule enables the Secretary of State, Scottish Ministers, Welsh Ministers and Executive Office in Northern Ireland to restrict or prohibit gatherings or events and to close and restrict access to premises during a public health response period (which is determined by Ministers based on criteria defined in the Schedule).
404 The Secretary of State, the Scottish Ministers, the Welsh Ministers and the Executive Office in Northern Ireland should respectively consult: the Chief Medical Officer or a Deputy Chief Medical Officer; the Chief Medical Officer of the Scottish Administration; the Chief Medical Officer or one of the Deputy Chief Medical Officers for Wales; and the Chief Medical Officer or any of the Deputy Chief Medical Officers of the Department of Health in Northern Ireland before making a declaration that starts a public health response period (or revoking any such declaration).
405 Part 2 of the Schedule makes provision for England. The rest of the Schedule makes similar provisions for Scotland, Wales and Northern Ireland.
406 The power to restrict or prohibit gatherings or events may be directed towards the owner or occupier of the premises or anyone involved in holding such an event or gathering. The power to close or restrict access to premises may be directed towards the owner or occupier of the premises, or anyone involved in managing access to and within the premises.
407 The Schedule provides that the Secretary of State, the Scottish Ministers, the Welsh Ministers and the Executive Office in Northern Ireland should respectively have regard to: the advice of the Chief Medical Officer or one of the Deputy Chief Medical Officers; the Chief Medical Officer of the Scottish Administration; the Chief Medical Officer or one of the Deputy Chief Medical Officers for Wales; and the Chief Medical Officer or any of the Deputy Chief Medical Officers of the Department of Health in Northern Ireland, before issuing a direction under this power. The Executive Office in Northern Ireland is also required to consult with one of the specified persons before issuing a direction.
408 The territorial extent and application of the clause and part 1 of the Schedule is the UK, the territorial extent of part 2 of the Schedule is England and Wales and applies in England, the territorial extent and application of part 3 of the Schedule is Scotland, the territorial extent of part 4 of the Schedule is England and Wales and applies in Wales and the territorial extent and application of part 5 of the Schedule is Northern Ireland.
Clause 51 and Schedule 22 Expansion of availability of live links in criminal proceedings
409 The Schedule amends the Criminal Justice Act 2003 ("CJA 2003") in order to extend the circumstances in which a criminal court can use audio and live links during hearings.
410 It expands the courts’ powers to use technology across a wider range of hearings, and participants. The court may direct that a person (but not a jury member) take part in eligible criminal proceedings through the use of a live audio link or a live video link. The court must be satisfied that a live link direction is in the interests of justice before making one. By way of an additional safeguard, it also provides for the parties, and the relevant youth offending team in youth cases, to be given the opportunity to make representations to the court before the court determines whether to make a live link direction.
411 The amendments made by paragraph 2(5) of the schedule provide that the court may direct the use of live link to multiple, or all persons participating in particular proceedings, and may also give a direction which only applies to certain aspects of the proceedings, for example the giving of evidence. A person directed to give evidence in proceedings by live link must only give evidence in accordance with the direction. Persons outside of England and Wales may participate through a live link if the court so directs. These powers are subject to the restrictions set out in new Schedule 3A to the CJA 2003.
412 The court may rescind a live link direction at any time, but only if this is in the interests of justice, and only after having considered representations from the parties or relevant youth offending team in youth cases.
413 The schedule amends section 53 of the CJA 2003 (magistrates’ courts permitted to sit at other locations) to accommodate any participation through live link, rather than just the giving of evidence.
414 Participation in eligible criminal proceedings through a live audio or video link as directed by the court will be treated as complying with any requirement to attend or appear before court, or to surrender to the custody of the court, and such persons will be treated as present in court for the purposes of the proceedings.
415 The schedule also amends section 54 of the CJA 2003 (warning to jury) in accordance with the expanded power to use live links and section 55 of the CJA 2003 (rules of court) in accordance with the expanded power to use live links, and to enable the Criminal Procedure Rules to provide for contested as well as uncontested live link applications to be determined without a hearing. Paragraph 8 of the schedule creates a new Schedule 3A to the CJA 2003, which introduces additional prohibitions and limitations on use of live links in certain circumstances.
416 Part 2 of the schedule amends the Criminal Appeal Act 1968 in accordance with the expanded powers to use live links under section 51 of the CJA 2003 in relation to appeals to the criminal division of the Court of Appeal. It also provides for a single judge of the Court of Appeal and the Registrar of Criminal Appeals to be able to exercise these powers.
417 The territorial extent and application of this clause and schedule is England and Wales.
Clause 52 and Schedule 23: Expansion of availability of live links in other criminal hearings
418 Part 1 of the schedule expands the use of live links in Part 3A of the Crime and Disorder Act 1998 ("CDA 1998") beyond the attendance of the accused at certain preliminary, sentencing and enforcement hearings to all participants in preliminary, sentencing and enforcement hearings.
419 Paragraph 3 of the schedule amends section 57B of the CDA 1998 to expand the availability of live links at preliminary hearings in a magistrates’ court or the Crown Court to include live video and audio links and all persons participating in the hearing, not solely live video links for the accused when in custody. Safeguards are introduced such that the court in making any live link direction in a preliminary hearing must be satisfied that it is in the interests of justice to do so. The parties or the relevant youth offending team must also have been given the opportunity to make representations.
420 The schedule makes similar provision in relation to live links in preliminary hearings as paragraph 2(5) of Schedule 22 does in relation to live links in ‘eligible criminal proceedings’. The amendments sets out the factors that the court must consider when deciding whether to give, vary or rescind a live link direction.
421 The schedule allows for the expansion of the use of live links in sentencing hearings and enforcement hearings in a similar way to preliminary hearings.
422 A court may not impose imprisonment or detention in default of payment of a sum at an enforcement hearing where proceedings are being conducted with participation via live audio link (other than for the purpose of giving evidence).
423 Paragraph 6 inserts new section 57G of the CDA 1998 (requirement to attend court, perjury) which makes identical provision in relation to hearings conducted in accordance with a direction under section 57B, 57E or 57F as paragraph 4 of Schedule 22 does in relation to "eligible criminal proceedings" conducted in accordance with a live link direction.
424 The schedule creates a new Schedule 3A to the CDA 1998, which introduces additional prohibitions and limitations on use of live links.
425 Part 2 of the schedule makes amendments to the Police and Criminal Evidence Act 1984 in accordance with the expanded powers to use live links under section 57B of the CDA 1998. It also amends section 22 of the Prosecution of Offences Act 1985 to reflect the fact that a jury no longer determines whether a defendant is unfit to plead. It omits section 32 of the Criminal Justice Act 1988 (evidence given by persons abroad through television links) as it is no longer required.
426 The territorial extent and application of this clause and schedule is England and Wales.
Clause 53 and Schedule 24: Public participation in proceedings conducted by video or audio
427 The Schedule inserts new sections 85A, 85B, 85C and 85D to the Courts Act 2003, making provisions for the live streaming of wholly audio or video hearings.
428 The new sections of the Act provide that proceedings which are conducted as wholly video proceedings or wholly audio proceedings (a ‘fully virtual’ hearing) can be broadcast so members of the public can observe proceedings or to be made for record-keeping purposes (section 85A). It is an offence to make, or attempt to make, an unauthorised recording or transmission which relates to the broadcasting of such proceedings. The maximum penalty for being found guilty of such an offence is a fine not exceeding level 3 on the standard scale (currently £1000) (section 85B). It is also an offence to make, or attempt to make an unauthorised recording or transmission of an image or sound which is being transmitted through a live audio or video link including in relation to a person’s participation in court proceedings through a live link. This includes a recording or transmission of the person’s own participation. The maximum penalty for being found guilty of such an offence is a fine not exceeding level 3 on the standard scale (currently £1000) (section 85C).
429 The Schedule also inserts new sections 29A, 29B, 29C and 29D to the Tribunals Courts and Enforcement Act 2007, making provisions for the live streaming of wholly audio or wholly video hearings. New sections 29A to 29D to that Act make identical provision as that in s85A to 85D of the Courts Act 2003 for wholly video or wholly audio proceedings in First‐tier Tribunals and Upper Tribunals.
430 The provisions extend and apply to England and Wales only in relation to court proceedings; but to the United Kingdom in so far as proceedings in the First-tier Tribunal and Upper Tribunal are concerned. Paragraph 2 of Schedule 24 amends the Tribunals, Courts and Enforcement Act 2007 and so extends and applies to the United Kingdom.
Clause 54 and Schedule 25: Live links in magistrates’ court appeals against requirements or restrictions imposed on a potentially infectious person
431 The Schedule inserts sections 57ZA to 57ZF into the Magistrates’ Courts Act 1980.
432 It provides that appeals against decisions by the Secretary of State or an authorised public health official to impose restrictions under clause 49, be heard by telephone or video in civil proceedings in the Magistrates Court, subject to the court’s power to direct different arrangement be made. The court may, if it is in the interests of justice, direct that one or more persons should not participate in the appeal by video; or that they should participate by telephone. Such a direction may be made by a single justice or authorised court officer (as defined in subsection (5)).
433 Sections 57ZD and 57ZE create new criminal offences in relation to (i) the unauthorised recording or transmission of a broadcast of a live video or audio hearing and (ii) the unauthorised recording and transmission in relation to a person’s participation in proceedings through live video or audio links. These sections create the same criminal offences and make identical provisions to those in clause 53 and Schedule 24.
434 These provisions extend and apply to England and Wales.
Clause 55 and Schedule 26: Use of live links in legal proceedings: Northern Ireland
435 The clause and Schedule ensures all courts and devolved tribunals in Northern Ireland can require some or all of the participants in a case to take part in proceedings via audio or video live link. The Schedule also makes provisions for the live streaming of wholly audio or wholly video hearings by courts and devolved tribunals in Northern Ireland. Provision is also made for offences of recording or transmission in relation to broadcasts and in relation to participation through live link. Specific provision is also made for public health applications via live links to the Magistrates’ Courts.
436 The territorial extent and application of this clause and schedule is Northern Ireland.
Clause 56 and Schedule 27: Powers in relation to transportation, storage and disposal of dead bodies etc.
437 Part 1 ensures that local authorities and national authorities have the powers to require persons (and in the case of national authorities, to require local authorities) to provide information to enable local and national authorities to ascertain capacity in areas to effectively manage the transportation, storage and disposal of dead bodies and other human remains. This may include information from private companies (such as private funeral homes or crematoria) on their capacity and operational status. They may direct that this information is shared with other actors who require this information (for example neighbouring local authorities who are searching for spare capacity in the region).
438 Paragraph 1 outlines that information shared under these information-sharing powers must be used only for the purpose of ascertaining capacity to manage the transportation, storage and disposal of dead bodies and other human remains.
439 This information sharing provision is needed to inform decisions to designate a local authority so that directions can be made to enable changes in the death management system where there is or is likely to be insufficient capacity in that area as a result of excess deaths from Covid-19. It will give visibility of the system and help to prevent the system from becoming overwhelmed. The death management system is highly fragmented, involving many different organisations in the public and private sector as well as faith and other groups.
440 Restrictions are placed on use and disclosure of the information provided and offences are created in relation to failing to comply with a requirement to provide information, using or disclosing information in contravention of provisions, or knowingly or recklessly providing false information. These provisions are there to ensure compliance with the information sharing provisions.
441 Part 2 allows national authorities to designate a local authority area where, as a result of coronavirus disease, there is likely to be insufficient capacity within that area to transport, store or dispose of dead bodies or other human remains. Once an area is designated a local authority can give directions to companies or corporations. In addition a national authority can give the same directions where a regional or national response is more appropriate. The trigger point of this will be a ministerial decision in the relevant nation. The flexibility to direct locally, regionally or nationally provides that powers are only used where necessary, but also used most effectively and in a proportionate way.
442 The directions that can be given are broadly defined, as flexibility as to what may be required to deal with the situation is necessary. However it is expected the following directions may be required: direction to a private company to, for example, extend crematoria operating hours or use their vehicle to transport deceased bodies. The power to direct also includes a power to make directions in relation to a body within an area to be moved to another area.
443 Personal choice for body disposal will be respected as far as possible, however, only where there is no suitable alternative (for example if safe storage limits were likely to be breached and out of area alternatives were not available), the power to direct may be used to direct whether a body is buried or cremated. In this respect it has been necessary to disapply section 46(3) of the Public Health (Control of Disease) Act 1984 which prohibits cremation against the wishes of the deceased. Similar provisions are disapplied in Northern Ireland. Scotland’s legislation only requires due regard to be had to the deceased’s wishes so no equivalent dis-application is needed.
444 There is a step in power for the appropriate national authority to make a direction in place of a local authority where the local authority has failed to exercise its functions properly.
445 To the extent that any local authority directions conflict with a national authority direction, the national authority direction prevails.
446 Part 3 confers powers on national authorities to give directions to local authorities as to the exercise of their functions where they have failed to exercise functions in relation to dead bodies generally. This allows for central government to intervene if the local authority is not effectively managing the excess deaths in their area.
447 The Schedule comes into effect on Royal Assent, meaning the information powers are available immediately; however, the Direction making powers in Part 2 only are exercisable on designation by a national authority.
448 A devolved minister can activate the powers in their country without needing the approval of the other nations.
449 The territorial extent and application of this provision is England, Wales, Scotland and Northern Ireland. The powers will be activated within each nation by their respective Ministers if required. The ministers who can activate the powers in the provision are set out in paragraph 14.
Clause 57: Postponement of elections due to be held on 7 May 2020
450 This clause postpones a series of scheduled elections due to take place on 7 May 2020 by a year - until "the ordinary day of election" in 2021, which is Thursday 6 May. The polls covered by this clause are:
a. Polls for the election of councillors for any local government area in England;
b. The poll for the election of the Mayor of London and London Assembly;
c. Polls for the election of mayors of local or combined authorities; and
d. Polls for the election of Police and Crime Commissioners.
451 This clause extends the term of office for local government councillors who were due to retire after the scheduled elections in 2020 until after the postponed election in 2021. This clause then reduces the term of office for councillors returned at the postponed election in 2021 to three years, with a retirement date after the election in 2024. This is to ensure that their term aligns with the local government existing election cycle of electing by thirds and for two tier authorities. Maintaining the previous electoral rhythm provides for an election in each year in many two-tier areas, with clarity in each year over the proportion of local government being elected.
452 This clause provides for an exclusion from provisions in the Local Government Act 1972 that determine how councillors are selected for retirement (for example, those who have been councillors for the longest period since re-election). This subsection states that where a councillor has had their term extended until after the postponed election in 2021, these provisions should not apply.
453 This clause ensures that the subsequent term for 7 May 2020 elections for the Mayor of London/London Assembly, elected mayors of local authorities, elected mayors of combined authorities and Police and Crime Commissioners will be three years. This is to maintain the existing elections cycle, as above, and to ensure that the future cycle does not conflict with borough elections in London.
454 The territorial extent and application of this clause is England and Wales.
Clause 58: Power to postpone certain other elections and referendums
455 This clause provides a power for the Secretary of State or Minister for the Cabinet Office to postpone, by regulations, other "relevant" elections and referendums (not covered in clause 57) that cannot currently be anticipated. Such elections would include, for example, by-elections which are required by statute to be held within a specified period after the triggering event.
456 The Prime Minister has taken the decision that the scheduled elections due to take place on 7 May 2020 should be postponed by a year. It follows that it may be desirable and necessary to postpone other elections (such as by-elections and local referendums) that arise during the Covid-19 outbreak. This clause provides the necessary power to enable this.
457 This clause sets out that the Secretary of State or Minister for the Cabinet Office may make regulations to postpone the date of a "relevant" election or referendum, so long as the election or referendum is held on the date or within the period specified in the regulations (and is not later than 6 May 2021). Where appropriate, this power can be exercised more than once. This clause also confers power by regulations to delay the holding of any relevant election or referendum that falls within a period specified in the regulations until a later date or period specified in the regulations (which again cannot be or end later than 6 May 2021).
458 This clause states that a "relevant" election or referendum is one for which the poll falls in the period between the day on which this Act is passed and ending with 5 May 2021 and which is within one of the categories of election or referendum set out in the clause. These categories include elections to fill a "casual vacancy" (by-elections) in local government in either England or Northern Ireland; the Greater London Assembly; in the office of the London Mayor or in the office of an elected mayor; or in the office of a police and crime commission in England. They also include referendums under section 9MC of the Local Government Act 2000 (referendums following petition); under section 52ZN of the Local Government Finance Act 1992 (in relation to council tax); and referendums under Schedule 4B to the Town and Country Planning Act 1990 (on neighbourhood development plans).
459 This clause makes clear that the power can be applied to specified descriptions of elections or referendums. So, for example, regulations under subsection made under this clause could make provision by reference to a group of elections in a specific area, of a specific nature, or falling within a specific time period.
460 This clause allows regulations under this clause to amend legislation e.g. where a date set out in primary or secondary legislation needs to be amended
461 This clause provides for regulations under the power to be subject to the negative procedure. This is to enable the elections set out above to be postponed in situations where either Parliament is not sitting or is unavailable.
462 The territorial extent and application of this clause is England and Wales and Northern Ireland.
Clause 59: Power to postpone a recall petition under the Recall of MPs Act 2015
463 A recall procedure for Members of Parliament is set out in the Recall of MPs Act 2015. MPs can be recalled in certain circumstances, for example, if they are convicted in the UK of an offence, or if they are suspended from the House of Commons for a specified period. The recall procedure includes a petition being made available for signing for 6 weeks for registered electors to sign. To be successful, 10% of eligible registered voters need to sign the petition. If the 10% threshold is reached, the Speaker of the House of Commons is notified, the MP’s seat becomes vacant and a by-election is required.
464 This clause does two things. First, it relaxes the duty on the petition officer under section 7(4) of the 2015 Act in relation to the designation of the first day of the 6-week petition period. Instead of being required to designate the 10th working day after the day on which the officer receives a Speaker’s notice that one of the recall conditions has been met, or the nearest reasonably practicable working day after that day, the petition officer is required to designate a working day falling no later than 6 May 2021 (or, if that is not reasonably practicable, the nearest reasonably practicable working day after that day). This therefore relaxes the timetable for cases where a Speaker’s notice has been given but the beginning of the 6-week petition period has not yet been designated.
465 Secondly, this clause then deals with the case of a recall petition where the petition officer has designated a day for the beginning of the petition period, and that day falls between Royal Assent of this Act and 5 May 2021. In such a case, the Secretary of State or the Minister for the Cabinet Office may by regulations provide that the designated day is postponed until a date specified in the regulations (falling no later than 6 May 2021).
466 This clause provides that the Secretary of State or the Minister for the Cabinet Office’s power may be exercised more than once in respect of a single recall petition. This clause also provides that a statutory instrument containing such regulations is subject to negative procedure in Parliament.
467 The territorial extent and application of this clause is England and Wales, Scotland and Northern Ireland.
Clause 60: Power to make supplementary etc provision
468 This clause provides the Secretary of State or the Minister for the Cabinet Office with the power to make, by regulations, supplementary provision in connection with the postponement of polls under either clause 57 or 58. Such regulations would be subject to the negative procedure.
469 Regulations made under this clause could deal with a variety of matters, including, for example:
a. the handling of nominations of candidates
b. the handling of postal ballots
c. the terms of office of incumbent office holders, which might need to be extended in the event of an election being postponed
d. the handling of expenses of persons other than local authorities (e.g. candidate expenses)
e. compensation of local authorities or candidates incurring additional expenditure as a result of the Act.
470 Regulations made under this clause will be able to make retrospective provision, to deal with situations where an election timetable has automatically been triggered. This would, for example, enable provision to be made disapplying (after the event) certain statutory steps that should have been taken in the run-up to the original poll date.
471 This clause allows regulations under this clause to amend, repeal or revoke statutory provisions (including primary legislation).
472 This clause provides for regulations under the power to be subject to the negative procedure.
473 The territorial extent and application of this clause is England and Wales and Northern Ireland.
Clause 61: Northern Ireland: timing of the canvass and Assembly by-elections
474 This clause amends the timing of the canvass in Northern Ireland, moving it from 2020 to 2021.
475 The electoral register lists the names and addresses of everyone who is registered to vote in public elections. The register is used for electoral purposes, such as making sure only eligible people can vote, and other limited purposes (such as calling people for jury service). The canvass is one method of gathering information on potential additions to, changes to, and deletions from, the register.
476 In Northern Ireland the register is maintained through a process of continuous registration and cross matching of data with the addition of a canvass which must take place at least every ten years from 2010. It was last conducted in 2013. There are 1.3 million individuals on the 2019 register and the canvass exercise is hugely resource intensive, requiring postal delivery of significant amounts of printed material and large numbers of processing staff. Covid-19 presents significant risks to canvass being completed successfully in Northern Ireland in 2020 and as a result of this clause, the canvass will be moved from 2020 to 2021.
477 With the exception of delaying the 2020 canvass by a year, the clause retains the timing of the previously established schedule of statutory canvass years, specifying 2030 and every tenth year thereafter as years on which canvass must be conducted.
478 The clause also provides that if, at any time during the relevant period, the Chief Electoral Officer for Northern Ireland is required to set a date for a by-election for the Northern Ireland Assembly, the Chief Electoral Officer must consult the Secretary of State before setting the date. For this purpose the "relevant period" is the period beginning with the day on which this Act is passed and ending with 1 February 2021.
479 The territorial extent and application of this clause is Northern Ireland.
Clause 62: Postponement of National Assembly for Wales elections for constituency vacancies
480 This clause provides that where, before 6 May 2021 an election under section 10 of the Government of Wales Act 2006 to fill a vacant constituency seat would otherwise be required to be held the Presiding Officer of the National Assembly for Wales may fix a later date for that poll. This power may be exercised more than once but before the Presiding Officer exercises it, the Presiding Officer must consult with the Welsh Ministers and the Electoral Commission.
481 The territorial extent of this clause is England and Wales and the application is to Wales only.
Clause 63: Power to postpone local authority elections in Wales for casual vacancies
482 This clause will enable any casual vacancies which may arise in local authorities in Wales (also known as by-elections) where the date of the poll for the election would otherwise fall between the period beginning with the day on which this Act is passed and ending with 5 May 2021, to be postponed by regulations made by the Welsh Ministers.
483 The territorial extent of this clause is England and Wales and the application is to Wales only.
Clause 64: Power to make supplementary etc provision
484 Regulations under this clause will enable the Welsh Ministers to make by regulations consequential, supplementary, incidental, transitional or saving provision in connection with clauses 62 and 63. The provision which may be made includes provision about electoral activity prior to the postponement of a poll, the conduct of elections, the manner of voting in elections that have been postponed, the terms of office of incumbent officer holders, nominations of candidates, expenses incurred in relation to the election by those other than local authorities, and compensation for local authorities or candidates as a result of the provisions within the Act.
485 The territorial extent of this clause is England and Wales and the application is to Wales only.
Clause 65: Postponement of Scottish Parliament elections for constituency vacancies
486 This clause enables the Presiding Officer ("PO") of the Scottish Parliament to postpone constituency by-elections. The power enables the PO to fix a later date for the poll where a date has been fixed or, where no date has been fixed, to fix a date that is outside the period required by section 9(3) of the Scotland Act 1998. The PO must fix a new date as soon as reasonably practicable. This power can be exercised more than once and this clause specifies who the PO must consult before exercising the power. The power cannot be exercised to fix a by-election after 6 May 2021
487 The territorial extent and application of this clause is Scotland.
Clause 66: Postponement of local authority elections for casual vacancies
488 This clause enables the relevant Returning Officer ("RO") to postpone a by-election to fill a councillor vacancy in a local authority. The power enables the RO to fix a later date for the poll where a date has been fixed or, where no date has been fixed, to fix a date which is outside the period required by section 37(1) of the Local Government (Scotland) Act 1973. The RO must fix a new date as soon as reasonably practicable. This power can be exercised more than once and this clause specifies who the RO must consult before exercising the power. The power cannot be exercised to fix a by-election after 6 May 2021.
489 The territorial extent and application of this clause is Scotland.
Clause 67: Signatures of Treasury Commissioners
490 This clause modifies section 1 of the Treasury Instruments (Signature) Act 1849 so that, during a ccovid-19 outbreak, the reference in that section to two or more of the Commissioners has effect – (a) as if it were a reference to one or more of the Commissioners, and (b) as if a Minister of the Crown in the Treasury (who is not also a Commissioner) were a Commissioner. "Minister of the Crown" for these purposes means the holder of an office in Her Majesty’s Government in the United Kingdom.
491 The territorial extent and application of this clause is England and Wales, Scotland and Northern Ireland.
Clause 68: Exercise of section 143 of the Social Security Administration Act 1992
492 This clause modifies the operation of section 143 of the Act by temporarily altering the procedure for making orders under it.
493 The clause applies to an order made under section 143 of the Social Security
494 Administration Act 1992 made on or after the day the bill is introduced but within 2 years of the Act having passed.
495 But it only applies to an order if that order doesn’t increase contribution rates above the level of those rates on 6 April 2020.
496 Subsection (2) modifies section 143(1) of that Act in order that the level of the National Insurance Fund, and the sums expected to be paid from it, does not have to be taken into account in relation to orders made under this section for a temporary period.
497 Subsection (3) provides that the limit on increases to the rates of NICs of 0.25% in section 143(4) of the Act does not apply to orders made under the Act. This will enable rates to return to their 6 April 2020 baseline once any reduction is no longer needed.
498 Subsection (4) provides that Section 144 of the Act does not apply to an order made under section 143 of the Act. This removes the requirement to lay a report by the Government Actuary when changing rates, and provides greater flexibility to determine the period for which rates are to apply.
499 Subsection (5) provides that the affirmative procedure does not apply to orders made under section 143 of the Act. The negative procedure will apply.
500 The territorial extent and application of this clause is England and Wales and Scotland.
Clause 69: Exercise of section 145 of the Social Security Administration Act 1992
501 This clause modifies the operation of section 145 of the Social Security Administration Act by temporarily altering the procedure for making orders under it.
502 Subsection (1) provides that the clause only applies to an order made between introduction of the bill and 2 years after the passing of the Act, if that order does not increase rates above the 6 April 2020 baseline.
503 Subsection (2) provides that the limit on increases to the rates of NICs of 0.25% in section 145(3) of the Act does not apply to orders made under the Act (but increases above the 6 April 2020 baseline are not allowed).
504 Subsection (3) provides subsections (2) to (5) of section 147 of the Act does not apply to an order made under section 145 of the Act. This will allow greater flexibility on the application of rate changes, and removes the requirement to lay a report by the Government Actuary.
505 Subsection (4) provides that the affirmative procedure does not apply to orders made under section 145 of the Act. The negative procedure will apply.
506 The territorial extent and application of this clause is England and Wales and Scotland.
Clause 70: Exercise of section 5 of the National Insurance Contributions Act 2014
507 This clause modifies the operation of section 5 of the National Insurance Act 2014 by temporarily altering the Parliamentary procedure for making regulations under it.
508 Subsection (1) provides for the modifications to apply to regulations made on or after the day the bill is introduced and before the end of the period of two years from the date the act is passed.
509 Subsection (2) provides for the negative Parliamentary procedure will apply to regulations made under section 5 during that period instead of the affirmative procedures specified in that section.
510 Subsection (3) provides that subsection (2) does not apply to regulations which decrease the value of the Employment Allowance below £4,000 (so the affirmative Parliamentary procedure will continue to apply).
511 The territorial extent and application of this clause is England and Wales, Scotland and Northern Ireland
Part 2: Final Provisions
Clause 71: Interpretation
512 This provision is self-explanatory.
Clause 72: Financial provision
513 This clause is necessary to enable expenditure to be incurred properly under and by virtue of the Bill, and for purposes related to the covid-19 outbreak, in accordance with established conventions.
514 Subsection (1) provides that there is to be paid out of money provided by Parliament expenditure falling into three categories-
a. expenditure by a Minister of the Crown, government department or other public authority (including the devolved administrations) which is incurred by virtue of the bill;
b. any increase in sums payable under other legislation which it attributable to the bill’ and
c. any other expenditure which a Minister of the Crown, government department or other public authority (including the devolved administrations) in connection with making payments or giving financial assistance (directly or indirectly) to a person (including an individual or a business) as a result of coronavirus or coronavirus disease.
515 Subsection (2) provides that the above references to expenditure include expenditure incurred whether before or after the passage of the bill; and defines "financial assistance" for the above purposes to include grants, loans, guarantees, indemnities, and any other kind of financial assistance, whether actual or contingent.
Clause 73: Commencement
516 Subsection (1) sets out the provisions of the Bill - other than those listed in subsection (2) will commence on Royal Assent.
517 Subsection (2) sets out the provisions which will instead come into force using regulations made by a Minister of the UK Government. The Minister may do so in relation to devolved matters only with the consent of the relevant Devolved Administration. The devolved administrations can exercise the power in so far as the provision being commenced is within the legislative competence of the relevant devolved legislature.
518 Subsection (10) allows these provisions to be commenced on different days in different areas. The course of the outbreak is unpredictable and the response must be accordingly flexible.
519 Subsection (11) is a power to allow Ministers to make transitional provisions in relation to provisions in the Bill coming into force. Subsections (12), (13), (14) and (15) relate to how this power can be used in respect of devolved areas.
Clause 74: Power to suspend and revive provisions of this Act
520 This clause allows measures in the Bill to be suspended if no longer needed. It also allows for measures to be revived if needed again. The method of achieving suspension and revival will be by way of a regulation made by a Minister. Subsection 2 provides that a "suspension" of a provision should be treated in the same way as a repeal for the purposes of applying the general savings provisions that apply to repeals contained in section 16(1) of the Interpretation Act 1978. Suspension and revival can be done more than once (subsection 4). To provide for flexibility subsection 5 allows Ministers to make the regulations for different purposes, on different days in different areas; and to make technical transitional, transitory and savings provisions in regulations made under the clause.
521 There are some provisions in the Bill where it would not be appropriate to suspend/revive and so subsection 6 sets out the provisions that the power to suspend/revive will not apply to. As with other clauses within in the Final Provision section of the Bill, the clause includes provisions which deal with how the powers should operate in respect of devolved matters. In particular, consent of the relevant devolved administration is required where a Minister of the Crown exercises the power in relation to devolved matters. The devolved administrations are also given the same powers in so far as the provision being suspended or revived is within the legislative competence of the relevant devolved legislature.
Clause 75: Expiry
522 This Bill has been introduced to support public bodies, and wider society, in responding to the covid-19 outbreak and so is time limited. This clause provides that the Act expires at the end of the period of 2 years beginning with the day on which it is passed. Two qualifications to that basic principle are set out in Subsection 2 (which lists the provisions that will not expire) and clause 76 which allows for the period to be extended (or shortened) in relation to all other provisions).
523 Subsection 3 allows Ministers to make technical transitional, transitory and savings provisions in regulations made under this clause. Subsection 4 specifies when consent of the relevant devolved administration is required in respect of this regulation-making power. The clause also provides the same powers to the relevant devolved administration in so far as the provision relates to an area within the relevant devolved legislature’s legislative competence.
Clause 76: Power to alter expiry date
524 The Bill provisions should apply when they are needed. Therefore, subsections 1 and 2 enable Ministers to extend or terminate a particular provision through regulations. Subsection 3 stipulates that an extension may not be for more than six months at a time. To provide flexibility these regulations can be made for different purposes, on different days in different areas. Subsection 5 enables a Minister of the UK Government to exercise these powers. Consent of the relevant devolved administration will be required in relation to devolved matters. The clause also provides powers to the devolved administrations in so far as the relevant provision for which the expiry date is being altered is within the legislative competence of the devolved legislature.
525 The draft affirmative procedure must be followed when the power is being used to sunset a provision early, where the power is being used to delay the sunset of a provisions either the made affirmative or the draft affirmative procedure can be used (this is set out in clauses 79(Procedure for certain regulations made by a Minister of the Crown – 82 (Procedure for certain orders made by a Northern Ireland Department)).
Clause 77: Power to amend Act in consequence of amendments to subordinate legislation
526 Many of the provisions in this Bill operate by modifying the effect of pieces of secondary legislation. If underlying secondary legislation that the Bill modifies changes during the life of the Bill the modifications would no longer work properly. This clause therefore allows for the update of the modifications contained in the Bill in the event that the underlying legislation is changed. This ensure the measures in the Bill will still have the intended effect.
527 Subsections 1 and 2 set out that parts of the Bill that modify secondary legislation may be updated in consequence of other amendments to secondary legislation.
528 Regulations may be made by a UK Government Minister. Consent of the relevant devolved administration will be required in relation to devolved matters. The clause also provides the same power to the devolved administrations so far as amendments would be within the legislative competence of the relevant devolved legislature.
529 A choice of made affirmative or draft affirmative procedure can be used to make regulations under this power (this is set out in clauses 79 (Procedure for certain regulations made by a Minister of the Crown – 82 (Procedure for certain orders made by a Northern Ireland Department).
Clause 78: Power to make consequential modifications
530 This clause provides a power to make consequential modifications to other legislation so that it aligns with this Bill. The power can also be used to revoke the consequential modification regulations made under this power when the relevant provisions of the Bill which the consequential modifications relate to are sunset or suspended. Ministers may make technical transitional, transitory and savings provisions in relation to the consequential modifications made under this section.
531 The regulations may be made by a UK Government Minister though consent of the relevant devolved administration will be required if the regulations contain modifications that would be within devolved legislative competence. The clause also provides the same power to the devolved administrations in respect of consequential modifications which are within their legislative competence.
532 Where consequential modifications only modify secondary legislation regulations can be made under the negative procedure, where consequential modifications modify primary legislation either the made affirmative or draft affirmative procedures can be used (this is set out in clauses 79(Procedure for certain regulations made by a Minister of the Crown – 82 Procedure for certain orders made by a Northern Ireland Department).
Clause 79: Procedure for certain regulations made by a Minister of the Crown
533 This clause sets out how the procedures for regulations made under the powers to alter the expiry date, the power to amend the Act in consequence of amendment to secondary legislation and the power to make consequential modifications.
Clause 80: Procedure for certain regulations made by the Welsh Ministers
534 This Clause mirrors the provisions made in clause 79 for regulations made by Ministers of the Crown but for equivalent procedures in the Welsh Assembly.
Clause 81: Procedure for certain regulations made by the Scottish Ministers
535 This Clause mirrors the provisions made in clause 79 for regulations made by Ministers of the Crown but for equivalent procedures in the Scottish Parliament.
Clause 82: Procedure for certain orders made by a Northern Ireland department
536 This Clause mirrors the provisions made in clause 79 for regulations made by Ministers of the Crown but for equivalent procedures in the Northern Ireland Assembly.
Clause 83: Report by Secretary of State on status of non-devolved provisions of this Act
537 This clause sets out the procedure for the Secretary of State to report to Parliament every 8 week on the use of the powers in this Bill. If Parliament is not sitting on the day a report is due, then the Secretary of State can publish it (on the Department of Health and Social Care’s website, for example) and lay it before Parliament on the next sitting day. Subsection 5 of the clause obliges the Secretary of State to present the report to Parliament, and if the Secretary of State does not do so then subsection 6 obliges the Secretary of State to explain why.
Clause 84: Parliamentary consideration of status of non-devolved provisions of this Act
538 This clause requires a debate to be held in both houses about the status report that will be produced in accordance with clause 83 one-year after Royal Assent. This debate will need to be held if the substantive operational period of this Act which is defined in clause 82 is on-going. This means that if any of the non-devolved clauses that are due to be sunset under clause 75 are still in force after one-year the debate will go ahead.
539 This will provide both Houses the opportunity to scrutinise the matters covered in the status report including whether the Houses think that measures in the Bill have been suspended or sunset appropriately in response to changing events.
540 In the event that Parliament is not sitting for any reason at the time of the one year report the debates will have to be scheduled within 14 sitting days from Parliament returning.
Clause 85: Extent
541 This clause sets out the bill provisions which extend to the legal jurisdictions of England and Wales, Scotland and Northern Ireland, the provisions which extend to the legal jurisdictions of England and Wales and Scotland only, the provisions which extend to the legal jurisdiction of England and Wales only, the provisions which extend to the legal jurisdiction of Scotland only, the provisions which extend to the legal jurisdiction of Northern Ireland and the provisions which have the same extent as the enactments they amend.
Clause 86: Extension to the Isle of Man
542 This provision is self-explanatory.
Clause 87: Short title
543 This provision is self-explanatory.