Twenty Seventh Report Contents

Instruments relating to COVID-19

11.One instrument relating to the COVID-19 pandemic, the Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020 (SI 2020/953), is drawn to the special attention of the House in this report (see pages 2 to 4 above).

Restrictions on businesses and public gatherings: local restrictions

Health Protection (Coronavirus, Restrictions) (Blackburn With Darwen and Bradford, Leicester, and North of England) (Amendment) Regulations 2020 (SI 2020/954)

12.These Regulations amend the main “protected area” regulations4 to lift certain additional restrictions so that provisions applied to the rest of England could apply there too (with the exception of Bolton, which is subject to a discrete regime; see SI 2020/974 below).

13.After spending 15 paragraphs describing the accumulated SIs that have affected these areas since March 2020, the Explanatory Memorandum (EM) laid with this instrument concluded with the following description of what this particular SI does:

“7.16 The number of positive Covid-19 cases has continued to decline in Leicester, Blackburn and Darwen and North of England’s (with the exception of the area of Bolton Metropolitan Borough Council) protected areas. As a result, this instrument will apply easements made elsewhere in England on 25 July to the areas covered by the Blackburn and Bradford Regulations and Leicester Regulations. In addition, the instrument will apply the easements made elsewhere in England on 15 August to the areas covered by the Blackburn and Bradford Regulations and North of England Regulations, apart from the area of Bolton Metropolitan Borough Council.”

14.No clearer reference is given to which instruments of 25 July and 15 August are intended, or to what businesses may now operate. As different restrictions are eased in each area, we found the original EM vague and inadequate, and have requested the Department for Health and Social Care to revise it to include a much more specific explanation of the changes to the law which it makes. When law is imposed with immediate effect in this way it is even more important that the explanatory material provided is clear and fit for purpose.

Health Protection (Coronavirus, Restrictions) (Bolton) Regulations 2020 (SI 2020/974)

15.Bolton Metropolitan Borough Council was previously included in restrictions on the North of England5 but, because infection rates in the area have remained significantly higher than the average, these special measures were applied from 10 September.

16.The instrument retains the prohibition on mixing between households in private dwellings and gardens (except for linked households) and reduces gatherings in a public outdoor place to six people. As the highest infection rates are among young adults, the instrument requires certain venues, such as nightclubs, to stay closed. Restrictions on food and drink establishments limit them to takeaway services. The instrument also prevents listed businesses from operating between 22.00 and 5.00, with certain exemptions. These restrictions must be reviewed by the Secretary of State every 14 days, with the first review due by 24 September 2020.

Health Protection (Coronavirus, Restrictions) (No.2) (England) (Amendment) (No.4) Regulations 2020 (SI 2020/986)

17.Due to rising infection rates, these Regulations amend the original Regulations6 so that people may not participate in social gatherings, in any place, in groups of more than six, unless they are members of the same household, two linked households, or exceptions apply. This change applies throughout England, but, regulation 1(4ZA) is inserted into the original Regulations to provide that the tighter restrictions on gatherings in private dwellings in protected areas covered by more specific regulations such as Blackburn with Darwen, Bolton and Leicester remain in place.

Health Protection (Coronavirus, Restrictions) (Leicester) (No. 2) (Amendment) (No. 2) Regulations 2020 (SI 2020/987)

18.Due to falling levels of infection in the protected area of Leicester City Council, these Regulations amend the Health Protection (Coronavirus, Restrictions) (Leicester) (No. 2) Regulations 20207 to permit casinos, indoor skating rinks, indoor play areas (including soft play areas), bowling alleys, conference centres and exhibition halls to reopen in the area from 15 September 2020.

Health Protection (Coronavirus, Restrictions) (Birmingham, Sandwell and Solihull) Regulations 2020 (SI 2020/988)

19.Although a requirement in England limiting groups meeting in or outdoors to no more than six people came into effect on 14 September,8 data from the Joint Biosecurity Centre indicated that the incidence rates of COVID-19 around Birmingham were significantly above the national average and increasing. The data also indicated that a high proportion of the new cases were due to transmission either within or between households. These Regulations therefore impose tighter restrictions on those living within the “protected area” of Birmingham City Council, Sandwell Metropolitan Borough Council and Solihull Metropolitan Borough Council. They prohibit those living within the protected area from gatherings of two or more persons from different households in private dwellings either within or outside the protected area (except for linked households as defined.) The need for these restrictions must be reviewed by the Secretary of State every 14 days, with the first review taking place by 29 September 2020

20.Alongside these Regulations, care homes were also advised to only allow visits in exceptional circumstances.

Health Protection (Coronavirus, Restrictions) (North East of England) Regulations 2020 (SI 2020/1010)

Health Protection (Coronavirus, Restrictions) (North East of England) (Amendment) Regulations 2020 (SI 2020/1012)

21.Due to rising infection rates in the North East, SI 2020/1010 imposes tighter restrictions on the areas of Northumberland, North Tyneside, South Tyneside, Gateshead, Newcastle, Sunderland and Durham County. It prohibits people from inside those areas gathering with one or more people from a different household (apart from linked households) in a private dwelling whether inside or outside the protected area. The instrument requires certain venues to stay closed, such as nightclubs and does not allow the entertainment, leisure and hospitality businesses listed in the schedule to operate between 22:00 and 5:00. Additionally, listed businesses may only sell food or drink for consumption on the premises if it is served to customers sitting at a table.

22.SI 2020/1012 was made immediately after to correct some defects in the previous instrument “due to a system error”.

Changes to business practice and regulation

Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020 (SI 2020/1005)

23.This instrument requires designated hospitality and leisure venues to collect certain contact details from customers, visitors and staff and store them for 21 days. The information is to be shared with NHS Test and Trace or local public health officials, if requested, with the aim of breaking potential chains of transmission. Although this system has been in place on a voluntary basis for two months, the government has now made it a legal requirement due to non-compliance. Surveys show that, under the voluntary system, 67% and 69% of respondents (YouGov and BMG surveys respectively) were asked for their contact details some or all the time but only 43% of people said they were asked for contact details in all the places they visited. This instrument puts a legal duty on specified venues to ask all customers and visitors to provide contact details, and to display an official NHS QR code poster so that customers and visitors can alternatively scan the QR code using their NHS COVID-19 app. The Regulations also place a duty on the venue to deny entry to anyone who refuses to comply. Venues found to be in breach of these Regulations will be subject to a fixed penalty notice of £1,000 rising by £1,000 for each subsequent offence to a maximum of £4,000.

Health Protection (Coronavirus, Restrictions) (Obligations of Hospitality Undertakings) (England) Regulations 2020 (SI 2020/1008)

24.This instrument implements the “rule of six”9 in the hospitality sector by requiring pubs, restaurants, cafes and other businesses that provide food for consumption on the premises to take all reasonable measures to ensure that customers are limited to parties of six, different parties do not mingle and tables are set apart at an appropriate distance, defined as two metres, or at least one metre if certain measures are in place, such as barriers or screens. The Department for Business, Energy and Industrial Strategy says that designated local authority officers, police officers or persons designated by the Secretary of State may enforce the requirements. Fixed penalty notices of £1,000 may be issued for the first breach, £2,000 on the second occasion, rising to £4,000 for a third and any subsequent occasion. An arrest by a police officer may be made without warrant to maintain public health and public order. The Regulations will be in force for a year, with a requirement on the Secretary of State to review the measures within six months of coming into force.

Changes to business practice and regulation: travel

Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 12) Regulations 2020 (SI 2020/959)

Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 13) Regulations 2020 (SI 2020/980)

25.These two sets of regulations further amend the principal Regulations10 to add or remove specific countries from the lists in the Schedules that set out whether passengers arriving in England from those destinations will be required to self-isolate for 14 days. All changes are based on the latest assessment by the Joint Biosecurity Centre of COVID-19 infection rates in those countries:

Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 14) Regulations 2020 (SI 2020/1013)

26.Having reviewed the latest public health assessments provided by the Joint Biosecurity Centre, the Government has decided to remove Guadeloupe and Slovenia from the list of exempt countries (that is passengers arriving from those countries will now be required to self-isolate for 14 days). Conversely, Singapore and Thailand are added to the exempt list, so the self-isolation requirement is removed. All changes take effect from 19 September 2020.

Public services

Education (Information About Individual Pupils) (England) (Amendment) Regulations 2020 (SI 2020/965)

27.This instrument extends the range of data collected through the School Census to include all categories of individual pupils’ school attendance and non-attendance, rather than just absences, where this is recorded in the school’s electronic management information system. The additional data will include information on the recently introduced category of non-attendance in circumstances relating to coronavirus,11 such as whether a pupil is not attending school due to following public health guidance, for example on shielding, self-isolation or quarantining. The Department for Education (DfE) explains that the data collected through the School Census is used to produce statistics which help to gain a better understanding of the level of, and the reasons for, absence. According to DfE, bringing this instrument into force before the School Census takes place in January 2021 will provide a national view of the scale and distribution of non-attendance and enable the Department to report to the centre of government and the Office of National Statistics, Public Health England and the Scientific Advisory Group for Emergencies (SAGE) about school attendance and absence during the ongoing pandemic, thereby helping to inform policy and operational decisions. The additional insight will also support future policy development on tackling persistent absence and any changes that may be required ahead of the 2021–22 academic year. DfE says the changes do not place any additional burdens on schools, as they will be recording the new non-attendance categories already. This instrument will allow the early daily collection of data directly from school systems in October.

Draft Apprenticeships (Alternative English Completion Conditions and Miscellaneous Provisions) (Amendment) (Coronavirus) Regulations 2020

28.This instrument proposes changes to enable apprentices to complete their training without an apprenticeship agreement if they have completed at least 75% of their apprenticeship when they are made redundant. The Department for Education (DfE) explains that, at present, the Education and Skills Funding Agency continues to fund the apprenticeship to completion if an apprentice is made redundant within six months of their final day of training. This is to ensure that apprentices who are close to the end of their apprenticeship can continue their training while they look for another employer or complete their training without an employer if they are unable to find one. DfE expects an increase in the number of apprentices being made redundant as a result of the pandemic at a time when there may be fewer new training opportunities available. In addition, the average duration of apprenticeships has increased from around 16 months in 2015–16 to around 20 months in 2018–19, so that there are a growing number of apprentices who may have completed most of their apprenticeship when they are made redundant but who are still six months or more from completion. This instrument proposes to extend the current scheme, so that all apprentices are funded to completion if they are at least 75% of their way through their training when they are made redundant. This change is to be permanent. DfE says that the new 75% threshold has been chosen as “it will not generally be practicable [for apprentices] to attain occupational competence if more than a quarter of their apprenticeship is still to be completed at the point of redundancy. This is because access to on-the-job training and experience is a crucial element of an apprenticeship.” We asked DfE whether any support will be available for apprentices who have not completed 75% of their training at the point of redundancy and are unable to find a new employer. DfE told us that:

“Where an apprentice has been made redundant, our funding rules require the provider to make reasonable efforts to find the apprentice a new employer. We have launched a support service to make sure that apprentices who have lost their jobs can get the help they need to access financial, legal, health and wellbeing support, as well as careers advice. In addition we have introduced a new vacancy sharing service to put redundant apprentices in touch with employers offering new apprenticeship opportunities. For those unable to secure new employment, DWP has introduced the Kickstart programme and increased the capacity of sector based work academies. Kickstart will offer a subsidised six-month work placement for 16 to 24 year olds who otherwise might not have got into work or be ready for an apprenticeship. We have also made three times more funding available to providers in 2020-21 to support 30,000 new traineeship places, and introduced payments of £1,000 per trainee for employers who offer new or additional work placements (up to 10 trainees).”

Law and order

Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 (SI 2020/952)

29.This Order amends section 9 of the Wills Act 1837 to allow the witnessing of wills to take place via videoconferencing or other visual transmission during the pandemic. This requires a multi-step process which is described in Ministry of Justice (MOJ) Guidance.12 In the event of suspected fraud or mistakes being made in this process, all existing mechanisms and safeguards for challenging a will using the contentious probate route apply. The Order only permits the use of video witnessing for wills made between 31 January 2020 and 31 January 2022 and as long as probate has not been granted before this instrument comes into force. MOJ explained that this does not make the legislation “retrospective” because the validity of any will is not considered until it is submitted for probate or tested in a UK court, which is the point at which any rights become crystallised. MOJ stressed that this video witnessing system has been designed as a COVID-19 response measure for the exceptional circumstances prevailing, their guidance remains that where a will can be made in the conventional way (with testator and both witnesses physically present) it should be.

Coronavirus (Retention of Fingerprints and DNA Profiles in the Interests of National Security) (No. 2) Regulations 2020 (SI 2020/973)

30.Biometric samples, such as fingerprints or DNA, taken in relation to the Police and Criminal Evidence Act 1984 can normally only be kept for a maximum of three years. Samples are automatically destroyed unless a specific exemption is agreed on the grounds of national security. However, the Counter-Terrorism Policing Command has confirmed that, due to the ongoing impact of coronavirus, it is unable to conduct the necessary reviews within the normal timescales.

31.Section 24 of the Coronavirus Act 2020 allowed the deadline for retention of fingerprints and DNA profiles that are relevant to national security to be extended by a maximum of 12 months. A previous instrument13 extended the deadline up to 1 October 2020, this instrument further extends it up to the limit allowed by the Act, 24 March 2021. The independent Biometrics Commissioner has confirmed that in his view the extension is reasonable and proportionate. The police estimate that SI 2020/391 has prevented the destruction of 870 biometric samples with national security determinations. Such samples have in the past linked individuals to unidentified crime stains, provided evidence of potential terrorist offences and resulted in individuals being refused entry to the UK.

4 Health Protection (Coronavirus, Restrictions) (Leicester) (No.2) Regulations 2020 (SI 2020/824), Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) Regulations 2020 (SI 2020/822) and the Health Protection (Coronavirus, Restrictions) (North of England) Regulations 2020 (SI 2020/828).

5 See Health Protection (Coronavirus, Restrictions on Gatherings) (North of England) Regulations 2020 (SI 2020/828).

6 Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020/684).

7 Health Protection (Coronavirus, Restrictions) (Leicester) (No. 2) Regulations 2020 (SI 2020/824).

8 Health Protection (Coronavirus, Restrictions) (No.2) (England) (Amendment) (No.4) Regulations 2020 (SI 2020/986).

9 Health Protection (Coronavirus, Restrictions) (No.2) (England) (Amendment) (No.4) Regulations 2020 (SI 2020/986), see paragraph 17.

10 Health Protection (Coronavirus, International Travel) (England) Regulations 2020 (SI 2020/568).

11 Education (Pupil Registration) (England) (Coronavirus) (Amendment) (No. 2) Regulations 2020 (SI 2020/816); 25th Report, Session 2019-21 (HL 123).

12 MoJ, ‘Guidance on making wills using video-conferencing’ (20 August 2020): [accessed 17 September 2020].

13 Coronavirus (Retention of fingerprints and DNA profiles in the interests of national security) Regulations 2020 (SI 2020/391).

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