31.As the UK’s Covid Alert Level has been downgraded from four to three, the Government are seeking to move away from national measures. These Regulations make provision for a local authority in England to give directions relating to premises, events and public outdoor places in its area. A direction may only be given if the local authority considers that there is a serious and imminent threat to public health, and the direction is necessary and proportionate to deal with it (regulation 2). The local authority must review any direction given under these Regulations at least once every seven days. Regulation 3 also gives the Secretary of State power to require a local authority to make or revoke a direction under these Regulations, but must consult the Chief Medical Officer or one of the Deputy Chief Medical Officers of the Department of Health and Social Care before doing so. A local authority designated officer or a constable (including a police community support officer) may take such action as is necessary to enforce a direction made under these Regulations and those who breach them may be liable to a fixed penalty notice of £100 for a first offence doubling on each repeat offence up to a maximum of £3,200. These Regulations expire at the end of 17 January 2021 (after six months).
32.The Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020 (“the original Regulations”), which came into effect on 4 July 2020, imposed stricter restrictions on Leicester than are in place in the rest of England because of higher risk of contracting COVID-19 in that area. The original Regulations are subject to fortnightly review and meetings between Government Ministers, Leicester leaders and officials took place on 16 July to consider a range of evidence including public health, health service and non-health metrics. As a result, with effect from 18 July, regulation 3 of these Regulations amends the geographic boundary of the special restrictions to the city of Leicester and the Borough of Oadby and Wigston, removing Blaby and Charnwood from the protected area. Regulations 4 to 7 of this instrument also amend the original Regulations to clarify that premises or places are covered by these restrictions, if any part of the premises or place is in the protected area.
33.This instrument has been made in part to correct errors in the Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020 which came into force on 4 July 2020 and was modified on 18 July to reduce the area covered by additional lockdown restrictions. These Regulations also lift some of the additional restrictions within the revised protected area of Leicester City and the Borough of Oadby and Wigston, where prevalence of the virus has been high. From 24 July, non-essential businesses in the protected area will be permitted to reopen (as listed in the instrument).
34.These Regulations amend the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 to permit the reopening of indoor swimming pools, including indoor facilities at water parks, indoor fitness and dance studios, indoor gyms and sports courts and facilities. They also correct some minor errors. The original Regulations will still expire at the end of six months beginning with 4 July 2020 (the day on which they came into force).
35.The Government state that while face coverings are not a substitute for distancing and hand hygiene, there is evidence to suggest that when used correctly they may have some benefit in reducing the likelihood of those with coronavirus passing it on to others, particularly if they are asymptomatic. These Regulations therefore require members of the public to wear face coverings whilst inside shops, shopping centres and transports hubs in England. The conditions, enforcement provisions and “reasonable excuses” for non-compliance broadly mirror the pre-existing legislation requiring masks to be worn on public transport.
36.We have received a letter questioning how those with a disability may be affected by these Regulations. The Explanatory Memorandum (EM), at paragraph 7.6, addresses this issue in the following way: “Nobody who has a reasonable excuse as set out in regulation 4 should be prevented from visiting a shop or supermarket or other setting covered by these Regulations.” Section 3 of the guidance to the public published on GOV.UKalso offers a link to an Exemption Card template, for those who would feel more comfortable having a document to show they do not have to wear a face covering.
37.Although enforcement is a matter for the police and specified officials, government guidance says: “Businesses should take reasonable steps to encourage customer compliance”. Regulation 3(2)(b), however, exempts shop managers and their employees from an obligation to wear a face covering. We can reasonably anticipate that this provision may present compliance and enforcement challenges where a shop worker, who is not wearing a mask, asks a member of the public to put one on.
We recognise that there are technical reasons for this difference in requirement between members of the public and shop workers, but, given the potential challenges, suggest the policy’s effectiveness and any sensitivities arising from it are kept under close scrutiny.
38.Finally, in our 19th Report of this session, we commented on the problems caused by instruments being made just before they come into effect. On this occasion, the Regulations were laid less than 12 hours before they came into effect. Whilst we acknowledge that the seriousness of the pandemic has necessitated urgent action, Parliament must also be given adequate opportunity to scrutinise these changes in law. The Committee might have wished to explore these issues in more depth had they been given more time.
39.In response to the elevated number of positive COVID-19 tests in both Blackburn with Darwen and Luton, these Regulations apply stricter restrictions on those areas than currently apply in the rest of England. These Regulations require the closure of businesses listed in the Schedule (largely indoor sports and entertainment venues) and impose restrictions on gatherings both inside and outside, of more than 30 people. The closures and restrictions last until they are terminated by a direction given by the Secretary of State. The instrument will expire six months after coming into effect and the need for the restrictions in these Regulations must be reviewed by the Secretary of State every 14 days, with the first review taking place by 8 August 2020.
40.This Order applies company insolvency rescue legislation, as introduced by the Corporate Insolvency and Governance Act 2020 (“the 2020 Act”), to co-operative and community benefit societiesand credit unions. HM Treasury (HMT) says that the changes aim to provide these businesses with the flexibility and breathing space they need to continue trading during the pandemic. The provisions for a moratorium under Part A1 are applied to registered co-operative and community benefit societies, excluding societies which are providers of social housing and credit unions, while Part 26A for a restructuring plan is applied to co-operative and community benefit societies and credit unions, excluding societies which are providers of social housing. The Order also makes consequential amendments to secondary legislation on financial services and markets. HMT advises that, as of June 2020, there were approximately 8,000 co-operative and community benefit societies, and approximately 280 credit unions in Great Britain.
41.These Regulations amend the Health Protection (Coronavirus, International Travel) (England) Regulations 2020, which set out which people arriving in England are required to self-isolate. Based on the latest information from the Joint Biosecurity Centre, and Public Health England, these Regulations add Estonia, Latvia, Saint Vincent and the Grenadines, Slovakia and Slovenia to the list of exempt countries in Schedule A1 of the original Regulations. Therefore, any passengers arriving in England after 28 July from any of those countries will not be required to self-isolate on arrival.
42.The Joint Biosecurity Centre, with Public Health England, have reviewed the latest assessment of public health risk presented by arrivals to England and, in consequence, the Government are acting to re-impose self-isolation requirements on passengers arriving from Spain as a matter of urgency. These Regulations amend Schedule A1 of the Health Protection (Coronavirus, International Travel) (England) Regulations 2020 to require any passengers who arrived from Spain on or after 26 July to self-isolate for 14 days. The original Regulations must be reviewed every 28 days.
43.This instrument removes until 31 December 2020 the requirement on local planning authorities to make certain documents available for physical inspection by the public at local premises and to provide hard copies of those documents on request. Instead, the documents may be made available on the local planning authority’s website. The documents relate to the preparation of local development documents which deliver the spatial planning strategy for a local planning authority’s area. The Ministry of Housing, Communities and Local Government says that the temporary change is needed to ensure that progress of local development documents is not delayed due to difficulties during the pandemic in making these documents available for physical inspection or providing hard copies.
44.This instrument modifies temporarily until 31 December 2020 obligations on responsible authorities and the Secretary of State with respect to documents relating to strategic environmental assessments (SEA). Under the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”), responsible authorities at local, regional and national level and the Secretary of State are required to make available documents relating to SEA for physical inspection by the public at an address; for consultees to be informed of that address; and for a copy of those documents to be available to be obtained from that address. This instrument temporarily replaces this requirement with a duty to make the documents available for online inspection, and for consultees to be informed of the website address where the documents can be inspected. The temporary changes apply to all plans and programmes, and modifications to them, that are covered by the SEA Regulations. The Ministry of Housing, Communities and Local Government (MHCLG) says that while these changes could temporarily reduce access to documents for those without access to the internet at home, guidance will encourage responsible authorities to continue to provide physical copies for physical inspection where this is still possible during the pandemic. MHCLG also highlights that the instrument does not modify the obligation on responsible authorities or the Secretary of State to notify individuals who could be affected by any plans, programmes or modifications covered by the SEA Regulations.
45.These Regulations provide for reduced fees for applicants for a “Health and Care Visa” and their dependents to enter the UK and the Isle of Man. Health and Care Visas are available to qualified doctors, nurses and allied health and social care professionals working for an eligible organisation or business. The eligibility criteria are set out in “Tier 2 of the Points Based System—Policy Guidance” for the UK and in the “Confirmation of Employment Guidance” for the Isle of Man. Applicants for Health and Care Visas and their dependants are to be provided with fast-track entry and support of a dedicated team in processing visa applications and they will be exempt from paying the Immigration Health Surcharge.
46.Section 93(1) of the Scotland Act 1998 enables a Minister of the Crown to make agency arrangements for any of that Minister’s specified functions to be exercised on that Minister’s behalf by Scottish Ministers and vice versa. Under section 93(3) the functions must be specified in an Order in Council. These provisions are simply enabling and the extent to which those functions are exercised is dependent on Scottish Ministers and the Secretary of State for Health and Social Care electing to enter into subsequent arrangements.
47.The first of these Orders (SI 2020/776) would allow the use of an application software (an “app”) developed by, or on behalf of, the Secretary of State, in Scotland, designed to notify users where they may have been exposed to coronavirus and the provision of advice on what to do next. It will also enable users to report that they appear to have developed symptoms of COVID-19 and to request a test. The second (SI 2002/777) relates to the operation of the Joint Biosecurity Centre (JBC), established on 1 June 2020, including arrangements for the gathering and analysing of data concerning rates of coronavirus infection in Scotland. This will inform decision-makers’ choices in acting to prevent or mitigate the effects of further outbreaks in Scotland, and will allow the JBC to set, and to communicate to the public of Scotland (and the rest of the UK), the level of the risk of coronavirus infection on a scale of 1 (low) to 5 (critical).
48.Practice Direction 51Z was introduced on a pilot basis on 27 March to protect renters and homeowners in England and Wales from eviction during the pandemic, and was later extended until 22 August 2020. This instrument implements a new, temporary, Practice Direction 55C, drawn up by a working group composed of government agencies, the judiciary, legal representatives, and members of the advice sector, to put appropriate arrangements in place for the resumption of proceedings on 24 August. As well as managing how the courts handle the backlog, it aims to make sure that all parties’ interests are properly protected: tenants, landlords, lenders, local authorities, and other court users, particularly where people are vulnerable. These arrangements will be temporary until 28 March 2021, with a facility to review them in the meantime.
49.In anticipation of disruption to the MOT testing regime, the Motor Vehicles (Tests) (Amendment) (Coronavirus) Regulations 2020 introduced a six-month exclusion to the test certificate requirement for light vehicles due to be tested between 30 March 2020 and 29 March 2021. The Department for Transport (DfT) states that as COVID-19 related restrictions are now being eased when safe to do so, and a majority of garages are now open and conducting testing, the final date on which a six-month exclusion can begin is being brought forward. The test certificate requirement will again apply to vehicles due to be tested on or after 1 August 2020. The Explanatory Memorandum states that DfT considers that the public announcement of this policy on 29 June has provided adequate notice to interested persons, but we note that the instrument arrived nearly a month later and after the Commons had risen for the Summer—thus preventing scrutiny before the legislation came into effect.
50.The immigration health charge is payable by non-European Economic Area nationals who enter the UK for more than six months, subject to certain exemptions listed in Schedule 2 of the Immigration (Health Charge) Order 2015. Those who pay the immigration health charge can access NHS services for free (apart from any standard charges UK residents must also pay, such as for prescriptions and dental treatment in England). In our 11th Report of this session we particularly noted that the version of this instrument laid on 19 March 2020 proposed to bring the health charge up to the level of the average cost of use (“full cost recovery”), which is normal practice for all government fees and charges.
51.On 21 July, the draft instrument was withdrawn and replaced by a new version which, in addition, exempts NHS and care workers who apply for a Tier 2 (General) Health and Care Visa from this charge. (This links with SI 2020/736 described [above in the Report].) However, the Home Office failed to inform Parliament adequately in the Explanatory Memorandum of how and why the text of the instrument had been changed; in the interests of transparency, we have therefore asked for it to be revised.
52.The Ministry of Justice has undertaken a review of civil and family fees using volume and cost data for 2018–19 and then applying inflation rates to uprate them to anticipate costs for 2020–21. This mapping exercise has identified a number of fees which have recovered above cost without the necessary Parliamentary approval. This instrument therefore regularises the position for items including certain fees for Non-contentious Probate, Family Proceedings, Civil Proceedings and Magistrates’ Courts set out in Annex A to the Explanatory Memorandum (EM). Resetting these fees to full cost recovery level is expected to reduce HM Courts and Tribunal Service’s fee income by around £1.3–1.6 million per annum.
53.Many of the fees are reduced by more than half and the reduction is often £60–£70. We note that, according to the EM, at paragraph 7.5, “a refund scheme will not be launched in respect of the fees that are reduced in this instrument”—the reason given being “because they were at or below a reasonable predictive estimate of costs, based on the information available at that time”. The House may wish to ask the Minister for further information about the decision not to refund those who had paid fees above cost, and what estimate MoJ has made of the number of people affected who have paid fees above cost and what the total cost would have been had a decision been taken to allow refunds.
54.The Northern Ireland (Executive Formation etc) Act 2019 imposed duties on the Secretary of State to make regulations on marriage and civil partnership in the absence of a restored Northern Ireland Executive by 21 October 2019. The first stage of implementation was for civil unions; these Regulations set out the arrangements for same-sex religious marriage under Northern Ireland Law. The Regulations also provide protections for those religious bodies and officiants who do not wish to perform same-sex religious marriages, or otherwise celebrate same-sex marriages or civil partnerships. This includes amending the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 to provide that it is not unlawful discrimination for organisations relating to religion or belief to impose sexual orientation restrictions in connection with the solemnisation of marriage. The Explanatory Memorandum (EM) states those protections are broadly similar to those in England and Wales. The proposals were subject to extensive consultation and the EM states they received strong support from a large number of individuals and organisations.
55.These Rules amend the Family Procedure Rules 2010 and supporting Practice Directions by substituting a new Part 37 that streamlines and simplifies the process for proceedings for contempt of court. This mirrors the changes made by the Civil Procedure (Amendment No. 3) Rules 2020. Stimulated by issues arising in the case of R v Stephen Yaxley-Lennon (aka Tommy Robinson) in 2018, the Civil Procedure Rule Committee ran a public consultation from 9 March 2020 to 11 May 2020 on the codification and simplification of contempt rules in civil cases. We regard the reviewing and updating of procedure in this way as improving transparency and as illustrating best practice.
56.The rules for the conduct of criminal cases in the courts are regularly updated to reflect new legislation, relevant judgments and best practice. To aid clarity, the Criminal Procedure Rules Committee has decided to issue a consolidated version every five years. This is the latest such consolidation. It includes the various temporary measures put forward for the pandemic period. It also removes duplications and clarifies certain issues that have been identified during the compilation process and makes further revisions that have arisen during the last six months (see full list in the Explanatory Memorandum). In between these five-yearly reviews an informal consolidated text is available to the public free of charge on the Ministry of Justice website. We regard both these actions as best practice as they ensure that the Rules are clear, up to date and accessible to all.
11 as modified by Health Protection (Coronavirus, Restrictions) (Leicester) (Amendment) Regulations 2020 ().
12 Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 ().
13 Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 ().
14 From Dr M Reynolds, dated 17 July 2020 and published on our website: .
15 Cabinet Office, ‘Face coverings: when to wear one and how to make your own’ (last updated 23 July 2020): [accessed 24 July 2020].
16 HM Government, Keeping workers and customers safe during COVID-19 in shops and branches (23 July 2020): [accessed 27 July 2020].
17 Businesses already have legal obligations under existing employment law to protect their staff by taking appropriate steps to provide a safe working environment. See GOV.UK Guidance for Shops and branches above.
18 (Session 2019–21, HL Paper 84).
19 A co-operative society is a business owned and run by, and for the benefit of, its members. A community benefit society must satisfy the same cooperative principles as a co-operative society and must be operated for the benefit of the community in which it works.
20 Health Protection (Coronavirus, International Travel) (England) Regulations 2020 () which are due to expire on 7 June 2021.
21 , as above.
22 SEA involves an assessment of the wider environmental, social and economic impacts of alternative proposals at the beginning of a project.
23 Motor Vehicles (Tests) (Amendment) (Coronavirus) Regulations 2020 ().
24 , (Session 2019–21, HL Paper 49).
25 Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (), see our (Session 2019–2021, HL Paper 6).
26 Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 ().
27 HM Government, Same-sex religious marriage in Northern Ireland: UK Government consultation responses (16 July 2020): [accessed 22 July 2020].
28 Family Procedure Rules 2010 ().
29 Civil Procedure (Amendment No. 3) Rules 2020 () (rule 15 and Schedule);also considered this week.
30 Court of Appeal (Criminal Division), R v Stephen Yaxley-Lennon (aka Tommy Robinson), .
31 Presently at Ministry of Justice, Rules and Practice Directions (last updated 14 July 2020): [accessed 22 July 2020].