Instruments relating to COVID-19
42.One instrument relating to the COVID-19 pandemic, the Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 9) Regulations 2021 (SI 2021/223), is drawn to the special attention of the House in this report (see paragraphs 33 to 39 above).
Restrictions on businesses and public gatherings
Health Protection (Coronavirus) (Wearing of Face Coverings in a Relevant Place and Restrictions: All Tiers) (England) (Amendment) Regulations 2021 (SI 2021/247)
43.With effect from 8 March 2021, this instrument amended the All Tiers Regulations10 and the Face Coverings Regulations11 to facilitate voting and the counting of votes in the forthcoming elections, and to allow two people to gather for the associated campaigning and nominations activities. The Regulations add polling stations to the list of places where face coverings must be worn. Any non-exempt person who refuses to comply may be subject to a fixed penalty notice but may not be prevented from voting.
44.The Regulations also facilitate the 2021 Census (which will take place on 21 March) by providing that community centres, which must otherwise be closed, may open to provide access to computers for completing Census forms online.
45.The instrument also expands the permitted reasons to leave home in Tier 4 to include outdoor recreation with a linked household or one other person in a public outdoor place, and allows wrap-around childcare activities for all children whose parents are going to work or seeking work.
46.Finally, these Regulations amend the All Tiers Regulations to require all travellers leaving the Common Travel Area from a port or airport in England to complete a form declaring their reason for travelling, and to present that form for inspection when required (subject to a fixed penalty notice of £200 for failure to comply).
Changes to business regulations and practice
Draft Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021
47.This instrument proposes amendments to section 44 of the Employment Rights Act 1996 (“the Act”) to extend to so-called limb (b) workers the right to protection from detriment if they are in circumstances of danger which they reasonably believe to be serious and imminent and they leave or refuse to return to their place of work. The legislation as currently drafted limits this protection to workers who qualify as employees.
48.The Department for Business, Energy and Industrial Strategy (BEIS) explains that the changes are made following a judicial review brought by the Independent Workers’ Union for Great Britain (IWGB) against BEIS and the Department for Work and Pensions, in which the High Court found that the UK had failed to implement fully two EU Directives12 in domestic law, as protections were applied only to employees, while they should extend also to limb (b) workers.13 BEIS says that a further instrument will be required to extend the Personal Protective Equipment at Work Regulations14 to all workers.
49.According to BEIS, the term ‘limb (b) worker’ derives from the definition of these workers by section 230 (3)(b) of the Act. Limb (b) workers tend to have a more casual employment relationship than employees and include freelancers or contractors, but they are entitled to a basic set of rights, such as minimum wage and holiday pay. While they can be found in any sectors, according to the IWGB, they are particularly common in the ‘gig economy’.15 BEIS says that the changes will provide clarity to both workers and businesses and will protect workers’ rights through the challenges created by the pandemic.
Draft Warm Home Discount (Miscellaneous Amendments) Regulations 2021
50.This instrument extends the Warm Home Discount (WHD) scheme16 until 31 March 2022 which would otherwise expire on 31 March 2021. The instrument increases overall spending in line with inflation to £354 million and makes several operational changes to the scheme. This includes a £2,000 cap on individual debt write-off, in addition to maintaining the current £6 million total debt write-off cap, to enable energy suppliers to maximise the number of households they can support. The instrument also removes restrictions on providing financial assistance with energy bills, such as fuel vouchers, to domestic customers who are eligible for rebates. This is aimed at removing a barrier that prevented vulnerable households from accessing emergency support, particularly during the pandemic, for fear of later losing out on a rebate. The instrument also requires installations or repairs of boilers and central heating systems under the WHD scheme to be delivered by installers which are registered with the TrustMark scheme, so that they are subject to its auditing processes. According to the Department for Business, Energy and Industrial Strategy, this will provide better standards of installation and consumer protection, particularly for the most vulnerable customers and those living in high risk properties.
Travel
Mandatory Travel Concession (England) (Amendment) Regulations 2021 (SI 2021/205)
51.The reimbursement of concessionary fares, which allow those of State Pension Age or with a disability to travel at no cost, forms a significant revenue stream for bus operators. The legal requirement is that the sums paid by the Travel Concession Authorities (TCAs) do not result in the bus operator being better off. Since the beginning of the pandemic, the Department for Transport (DfT) has asked TCAs to carry on paying concessionary fare funding to bus operators at pre-COVID-19 levels, despite the fall in travel by concessionary pass holders. To avoid a legal anomaly, these Regulations suspend the “no better off” provision until the end of the 2021–22 financial year. DfT’s objective is that the bus operators will continue to break even despite the reduction in concessionary passenger numbers. A separate fund also provides financial support for lost revenue from other passengers during the pandemic period.
Health Protection (Coronavirus, International Travel and Information for Passengers) (England) (Amendment) Regulations 2021 (SI 2021/252)
52.To complement SI 2021/247 above, these Regulations amend the Passenger Information Regulations17 to impose a new requirement on the operators of commercial transport services departing from England to inform passengers about the current restrictions on movement before their departure from England — namely before online booking and at least 24 hours prior to the scheduled departure time of the service. The information to be provided is specified in the amended Schedule to the Passenger Information Regulations.
53.These Regulations also amend the International Travel Regulations18 to ensure a consistent definition of aircraft crew is applied across the self-isolation and pre-departure testing exemption regimes and to ensure specialist crew rely on the correct exemption for their profession. They also update the list of specified competitions in Schedule 3, which is relevant to the exemptions for sportspersons.
Public services
School Discipline (Pupil Exclusions and Reviews) (England) (Coronavirus) (Amendment) Regulations 2021 (SI 2021/204)
54.This instrument deals with arrangements for the exclusion of pupils from school during the pandemic. The instrument extends temporary measures introduced by two earlier instruments, so that they apply to exclusions occurring between 25 March and 24 September 2021.19 Without the extension the temporary measures would expire on 24 March.
55.The extension will have the effect that meetings of responsible bodies20 and independent review panels (IRP) can continue to take place virtually to consider exclusions, if it is not reasonably practicable for the meeting to take place in person because of the pandemic, if participants agree to meet remotely and if certain conditions are met to ensure procedural fairness. Where the conditions for a virtual meeting have not been met, the timescale for the meeting will be extended by “such longer period as is reasonably necessary for a reason related to the incidence or transmission of coronavirus”. The instrument also keeps a longer application window within which a parent or adult pupil can apply for an independent review (25 rather than 15 school days).
56.The Department for Education says that it has considered scientific advice and views of stakeholders from across the education sector, including the Office of the Children’s Commissioner for England, who have been broadly supportive of the policy, with some stakeholders asking whether virtual IRPs could become a permanent option.
Early Years Foundation Stage (Learning and Development Requirements) (Coronavirus) (Amendment) Order 2021 (SI 2021/234)
57.This instrument modifies temporarily the requirements in the Statutory Framework for the Early Years Foundation Stage for early years providers in England, so that it will not be a statutory requirement for them to complete the Early Years Foundation Stage Profile (EYFSP) in the academic year 2020/21. Instead they will be required to use “their best endeavours” to complete the EYFSP and to provide the information to Year 1 teachers and parents if they are able to do so in the summer term. The Department for Education (DfE) says that this modification aims to reduce pressure on teachers and early years practitioners during the pandemic and aligns with temporary changes made to other statutory primary assessments in 2020/21. The instrument also removes a requirement to submit data to the local authority and ensures that providers which are able to complete the EYFSP in 2020/21 will not be subject to statutory moderation by the local authority. According to DfE, the modifications build on the removal of the statutory requirement to complete the EYFSP for the 2019/20 academic year, while recognising that the EYFSP is a valued teacher-observed assessment and tool in supporting children’s development and the transition from reception to Year 1.
10 Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (SI 2020/1374 as amended).
11 Health Protection (Coronavirus) (Wearing of Face Coverings in a Relevant place) Regulations 2020 (SI 2020/791 as amended).
12 Health and Safety Framework Directive (89/391/EEC) and Personal Protective Equipment Directive (89/656/EEC).
13 High Court, R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another, [2020] EWHC 3039 (QB) (Admin).
15 Independent Workers’ Union of Great Britain, IWGB wins groundbreaking health and safety legal challenge against the Government on 13 November 2020: https://iwgb.org.uk/post/iwgb-wins-groundbreaking-health-and-safety-legal-challenge-against-the-government.
16 The WHD scheme was launched in 2011 and is a key part of the Government’s strategy to tackle fuel poverty. It supports over 2.2 million low income and vulnerable households in Great Britain every year with their energy costs.
17 Health Protection (Coronavirus, Public Health Information for Passengers Travelling to England) Regulations 2020 (SI 2020/567). As this instrument widens their scope to include passengers travelling from England, it also alters the title to the Health Protection (Coronavirus, Public Health Information for International Passengers) (England) Regulations 2020.
18 Health Protection (Coronavirus, International Travel) (England) Regulations 2020 (SI 2020/568) as amended.
19 School Discipline (England) (Coronavirus) (Pupil Exclusions and Reviews) (Amendment) Regulations 2020 (SI 2020/543) and School Discipline (England) (Coronavirus) (Pupil Exclusions and Reviews) (Amendment) (No. 2) Regulations 2020 (SI 2020/908).
20 The ‘responsible body’ is the governing body in the case of a maintained school, the management committee in the case of a pupil referral unit, and the proprietor (Academy Trust) in the case of an Academy.