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Twenty Eighth Report Contents

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Instruments relating to COVID-19

Restrictions on businesses and public gatherings

Health Protection (Coronavirus, Restrictions) (Protected Areas and Linked Childcare Households) (Amendment) Regulations 2020 (SI 2020/1019)

3.The latest data from the Joint Biosecurity Centre indicated that rates of COVID-19 in the protected areas defined by previous regulations3 were still significantly above the national average, and increasing. These Regulations therefore reimpose tighter restrictions on those areas and extend the “protected area” to some places that have previously had restrictions lifted; for example, they restrict household mixing in private dwellings and gardens in Oadby and Wigston, and all the wards in Bradford, Kirklees and Calderdale councils. New protected areas are also designated in Wolverhampton, Warrington, Halton, Burnley, Chorley, Fylde, Hyndburn, Lancaster, Pendle, Preston, South Ribble, Ribble Valley, West Lancashire, Liverpool, Sefton, Knowsley, St Helens, Wirral, and Wyre. In these areas varying levels of restrictions are imposed, for example on businesses or requirements that food service must be takeaway or table service only if served on the premises, and pubs and places of entertainment must close between 22:00 and 05:00. Blackburn with Darwen is integrated into the general regulations and the dedicated Regulations are revoked.

4.On 14 September 2020 regulations came into force4 across England that prohibit people who are not in the same household (or a linked household) from meeting in a group larger than six. Regulation 3 enables “informal childcare” for children aged 13 or under in private dwellings between members of two households that have agreed to be linked childcare households.

Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 2) Regulations 2020 (SI 2020/1021)

Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No.3) Regulations 2020 (SI 2020/1026)

Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No.3) Regulations 2020 (SI 2020/1028)

5.SI 2020/1021 amends previous requirements by extending the requirement to wear face coverings on public transport to those travelling in taxis and private hire vehicles. The Explanatory Memorandum states that emerging data has demonstrated that taxi and private hire vehicle drivers are more likely to be vulnerable to COVID-19 due to being male (98% of drivers) or from an ethnic minority (53% of drivers). The Office for National Statistics has designated drivers of taxis and private hire vehicles as at high-risk, having higher rates of death involving COVID-19 (65.3 per 100,000) than bus and coach drivers (44.2) and van drivers (26.7). This instrument also corrects errors in three previous instruments5 to provide greater clarity.

6.SI 2020/1026 further extends the requirements for the public to wear masks to include theatres, restaurants, bars and public houses except when seated to eat or drink. The Regulations also require employees and other persons providing services “in public facing areas” of supermarkets, shops, cafes, restaurants, bars, pubs, museums and tourist attractions to wear face coverings unless they are exempt.

7.The instrument also amends the fixed penalty notice provisions to double the fixed penalty fines that are payable for any breaches of the face coverings requirements whether in a “relevant place” or on public transport. A first offence will attract a fine of £200 rising to a maximum of £6,400.

8.SI 2020/1028 corrects an omission in SI 2020/1026, Schedule 3, so that employees in pubs will be required to wear face coverings. This illustrates why the Committee is concerned about the current levels of correcting instruments (see ‘Current level of corrections in statutory instruments’ on page 1 of the Report).

9.We also note that this change has required three statutory instruments within the space of 24 hours and are surprised that the Government is not doing more to coordinate such changes in a more structured way. It is not helpful to have the law scattered between so many instruments.

Health Protection (Coronavirus, Restrictions) (No.2) (England) (Amendment) (No.5) Regulations 2020 (SI 2020/1029)

10.Due to the transmission rate continuing to increase, and the Chief Medical Officers upgrading the UK’s COVID-19 Alert Level from three to four, these Regulations impose restrictions on businesses and social gatherings in England. The Government state that the requirement for table service and the closure of businesses selling food and drink from 22:00 to 05:00 (subject to exemptions) will reduce the likelihood of people failing to adhere to social distancing rules due to alcohol consumption. The Regulations also make changes to the restrictions on gatherings in England: from 28 September, support groups and weddings are limited to 15 people (funerals remain limited to 30) and exemptions for other religious and “life cycle” events, and sports gatherings are removed. To underline the need for compliance, regulation 9 doubles the amount of Fixed Penalty Notices for breaches of these requirements so that the initial fine level starts at £200, rising to a maximum of £6,400.

Local restrictions

Health Protection (Coronavirus, Restrictions) (Protected Areas and Restriction on Businesses) (Amendment) Regulations 2020 (SI 2020/1041)

11.These Regulations extend the restrictions that currently apply in the protected areas of the North of England6 to Blackpool, Wigan, Stockport and Leeds, because data from the Joint Biosecurity Centre indicated that the incidence rates of COVID-19 there were significantly above the national average, and increasing. The seven-day incidence rates per 100,000 population for the period from 13 September to 19 September were: 98.5 in Leeds; 105.5 in Wigan; 74 in Stockport; and 68.2 in Blackpool.

12.The restrictions that these Regulations apply prohibit gatherings of two or more people from different households in private dwellings in the protected area, and prohibit people living in the protected area from participating in a gathering in a private dwelling outside the protected area (unless those meeting are from linked households).

13.These Regulations also amend the Health Protection (Coronavirus, Restrictions) (Bolton) Regulations 20207 to require businesses in Bolton selling food or drink prepared on the premises for immediate consumption off the premises to close from 22:00 to 05:00.

Changes to business regulation and practice

Business Tenancies (Protection from Forfeiture: Relevant Period) (Coronavirus) (England) (No. 2) Regulations 2020 (SI 2020/994)

14.This instrument extends the moratorium during which landlords of commercial properties may not evict tenants due to non-payment of rent, until 31 December 2020. This follows an initial three-month moratorium until 30 June 2020, introduced by the Coronavirus Act 2020, and a three-month extension until 30 September 2020.8 The Ministry of Housing, Communities and Local Government (MHCLG) says that while trade restrictions have been lifted for most sectors, turnover has not yet recovered fully, particularly in vulnerable sectors such as hospitality, where at the end of July revenue was only at 30-40% of pre-lockdown rates, and businesses continue to struggle to pay their rent. MHCLG says that there is a risk that without extension of the moratorium beyond September, businesses that would otherwise be viable would be unable to pay their rent and be evicted, leading to further business closures and job losses. Changes made by SI 2020/1002 (see paragraph 15 below) to Commercial Rent Arrears Recovery (CRAR) add additional protection for business tenants. MHCLG emphasises that the moratorium is not a rent holiday and that tenants remain liable for payment of any rent arrears. MHCLG has worked with the sector to develop a Code of Practice9 which is to help ensure that the impact of the moratorium is mitigated and landlords are treated fairly, for example by encouraging businesses that can pay rent to do so. MHCLG also says that the Government have been working with lenders to ensure that flexibility is shown to commercial landlords and that programmes that support business lending through grants and government-backed loans, such as the Coronavirus Business Interruption Loan Scheme, the Coronavirus Large Business Interruption Loan Scheme and the Coronavirus Corporate Financing Facility, are available to landlords in distress. While we note the measures taken by MHCLG to support commercial landlords, we expect that many will be unable to recover rent that has not been paid during the moratorium, and that the longer-term impact on the retail sector and high streets could be significant.

Taking Control of Goods (Amendment) (Coronavirus) Regulations 2020 (SI 2020/1002)

15.The purpose of these Regulations is to increase the minimum amount of net unpaid rent that must be outstanding before commercial rent arrears recovery may take place. This is to extend the protection for tenants of commercial leases who have accumulated arrears during the pandemic period, set out in section 82 of the Coronavirus Act 2020, which introduced a moratorium on the ability of landlords of commercial properties to evict tenants by forfeiting the lease due to non-payment of rent in England and Wales. Regulation 2(3) provides that, the minimum amount of net unpaid rent before an enforcement action can take is 276 days’ rent where it takes place on or before 24 December 2020 and 366 days’ rent, where it takes place on or after 25 December 2020. The Explanatory Memorandum (EM) adds that the Government recognises that the impact of reduced rental income is causing some financial distress among commercial landlords, and that mitigation measures the Government are taking are set out in the EM accompanying SI 2020/994 from the Ministry of Housing, Communities and Local Government; the observations made above apply here equally.

Travel

Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 15) Regulations 2020 (SI 2020/1039)

16.This instrument further amends the original International Travel Regulations10 to remove Curaçao, Denmark, Iceland and Slovakia from the list of exempt countries so that passengers arriving in England from 26 September will be required to self-isolate for 14 days.

17.Following the fourth statutory review of the International Travel Regulations, which was completed on 21 September 2020, they are amended to make exemptions from the requirement to self-isolate under Schedule 2: for people involved in the 4th National Lottery Licence Competition; elite sportspersons travelling to the UK for medical examinations that must be completed before they can be signed by a professional sporting body or club, and certain advertising production professionals. The instrument also amends the exemption for elite sportspersons so that it applies to domestic elite sportspersons who have been to non-exempt countries or territories for the purposes of training.

Law and order

Civil Legal Aid (Remuneration) (Amendment) (No. 2) (Coronavirus) Regulations 2020 (SI 2020/1001)

18.Due to delays in legal process because of the pandemic, legal aid providers were struggling with the normal payment arrangements which allow barristers to claim payments at 12, 24 or 36-month intervals from the legal aid authorisation certificate being granted. This instrument makes it easier for barristers to claim payments on account for certain legal services three months from the date of the legal aid certificate and every three months thereafter, up to a total of 80% of the total sum.

19.This instrument also revokes SI 2020/515, which introduced two new standard fees for asylum and immigration (non-asylum) appeals to the First-tier Tribunal (Immigration and Asylum Chamber) which use the new online procedure. Because of the pandemic, Her Majesty’s Courts and Tribunal Service has accelerated its digitisation of such appeals and these cases are now only dealt with online. We commented adversely on the original Regulations because the required consultation process had only begun on the day the instrument was laid. This instrument revokes that fee scheme “following litigation”.

Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (SI 2020/1003)

20.This instrument makes a range of administrative changes to enable an “improved, more proportionate case management of claims” at Employment Tribunals. Amongst other changes, the instrument allows: greater flexibility to accept claims where there are errors on the claim form; two or more claimants to make their claim on the same form; a response form to include the response of more than one respondent or the response to more than one claim; Employment Tribunals to list cases for a hearing on receipt of the claim form; judgments to be issued without a hearing even when a preliminary hearing has taken place, to allow for faster disposal of cases where a response has not been received; and for witness statements to be inspected outside a hearing to address technical challenges posed by online hearings. The Department for Business, Energy and Industrial Strategy (BEIS) explains that Employment Tribunals are facing significant pressures from the impact of both the pandemic and an increase in claims following the abolition of fees in 2017, while social distancing measures have affected the ability of the system to manage claims, adding further delays. The changes are permanent and aim to resolve disputes more quickly and avoid costly litigation over technical procedural matters. To provide more flexibility and boost judicial capacity, the instrument also allows legal officers to carry out specified delegated administrative judicial tasks, subject to a decision by the Senior President of Tribunals. In addition, relevant judges will be able to act as Employment Judges to assist Employment Tribunals, subject to appropriate senior judicial consent, and Employment Judges appointed to the England and Wales panel will be able to sit in the Scotland panel, and vice versa, subject to consent of the Presidents of the Employment Tribunals in Scotland and in England and Wales.

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