49.The Government have laid a large number of statutory instruments (SIs) in response to the Covid 19 emergency. To assist the House, the Committee has introduced two new sources of information:
(a)A numerical list of all SIs subject to this Committee’s scrutiny that directly or indirectly deal with the consequences of the pandemic on the SLSC website. We will endeavour to update this daily so that there is a central reference point for the House.
(b)Because there is likely to be a high level of interest in these instruments, we have added a dedicated section in the Committee’s Report. Contrary to our normal practice, this includes an information paragraph for every instrument, and is arranged thematically. We believe that grouping them in this way will be particularly helpful where, as illustrated below, later instruments have superseded SIs laid only a day or two earlier. The themes are:
The Committee has noticed the use of a wide variety of different sunset dates and provisions in the statutory instruments dealing with the pandemic. We have written to the Minister about this complexity and how it is monitored.
50.To prevent the further spread of Covid 19, this instrument required the closure of businesses in England selling food or drink for consumption on the premises, such as restaurants, pubs and cafes, and other businesses, including cinemas and theatres, betting shops, museums and galleries, as listed in the Schedule to the instrument. Canteens in hospitals, schools, care homes, prisons or in premises used by the Armed Forces were exempt from the closure. The Ministry of Housing, Communities and Local Government (MHCLG) laid the instrument under the made affirmative procedure, which meant it would not remain in force unless approved by both Houses within 28 days. However, the instrument has since been superseded by SI 2020/350.
51.This instrument allows the restaurants, cafes and pubs in England which were closed by SI 2020/327 to provide a takeaway or delivery service for hot or cold food for a limited period of 12 months until 23 March 2021. According to MHCLG, there is no application process for the new arrangements; businesses will only need to notify their local planning authority by e-mail or in writing if they decide to provide a takeaway food or delivery service. MHCLG states that this temporary permission will not impact on the original planning use which will be retained and to which premises will revert after the 12-month period.
52.This instrument superseded SI 2020/327 above by tightening the restrictions on businesses in England with immediate effect from 1pm on 26 March 2020. The Department for Health and Social Care (DHSC) states that this was in response to advice that, although compliance with social distancing measures was increasing, it was not increasing sufficiently quickly to have the necessary effect.
53.Regulation 4 required the immediate closure of all drinking establishments and entertainment venues, and food venues (except for collection or delivery of food for consumption off the premises). Regulation 5 stopped businesses offering goods for sale or rent except in response to orders received online, telephone or by mail order, and closed all hotels except those that cater for permanent residents. Regulations 5(5) to (8) placed restrictions on places of worship and crematoriums. As in SI 2020/327, Environmental Health, Trading Standards and police officers will monitor compliance with these regulations and businesses that breach them will be subject to prohibition notices, and potentially unlimited fines. The Explanatory Memorandum indicates that these closures will affect 13.1% of the UK’s business units.
54.This instrument also banned public gatherings of more than two people (regulation 7) and prohibited anyone from leaving the place where they are living without reasonable excuse, such as the need to provide care or assistance, to travel for the purposes of work and to access critical public services (regulation 6). These regulations are enforceable by a police constable and breach is subject to a fixed penalty notice fine of £60, reduced to £30 if paid within 14 days.
55.The instrument came into immediate effect and Parliament has 28 sitting days to approve it retrospectively. The instrument will lapse automatically six months after coming into force (regulation 12). However, regulation 3 requires the Secretary of State to review the need for the restrictions it imposes every 21 days, the first review must take place by 16 April 2020. When appropriate, any amendments to regulations or guidance may be made by a ministerial direction, which will be published on . The Committee has also written to the Minister about the alignment between the restrictions introduced by this instrument and the published guidance.
56.This instrument exempts the Covid Corporate Financing Facility (CCFF) from the general prohibition imposed by section 19 of the Financial Services and Markets Act 2000 (“the Act”), according to which no persons may carry on a regulated activity in the UK unless they are authorised by the Financial Conduct Authority (FCA) or exempt. HM Treasury (HMT) explains that as a response to the economic shock caused by the pandemic, the CCFF has been established to provide funding to large businesses that are material to the UK economy, by purchasing short-term corporate debt (so-called commercial paper) of up to one-year maturity. This is to support businesses in paying salaries, rents and suppliers at a time of severe disruption to cashflows. The Bank of England (“the Bank”) operates the CCFF as a wholly owned subsidiary. HMT explains that the CCFF’s function amounts to dealing in investments as principal, which is a regulated activity, and that the CCFF may also have to undertake other regulated activities. According to HMT, obtaining FCA authorisation, which typically takes several months, was not a viable option given the need to act swiftly to provide liquidity to companies. In addition, the FCA authorisation regime was established for commercial entities, and therefore its requirements and processes are not suitable in the context of the CCFF: the exemption of the CCFF from the general prohibition in section 19 of the Act mirrors the exemption of the Bank itself. The CCFF offers financing on terms comparable to those prevailing in markets before the pandemic. Businesses need to demonstrate that they were in sound financial health before the crisis, with eligibility based on their pre-crisis credit ratings. They do not need to have issued commercial paper before. HMT expects the CCFF to operate for at least 12 months and for as long as support is needed to relieve cash flow pressures. HMT told the Committee that, as of 10 April, the CCFF had purchased £5.9 billion in commercial paper, and that the Bank will be publishing updates on the funding provided by the CCFF in its weekly report.
57.This instrument suspends, for a period of six months, the obligation on retailers with 250 or more employees to charge a minimum of 5p for single-use carrier bags (SUCBs) where these are used for the home delivery of online grocery shopping. The Department for Environment, Food and Rural Affairs (Defra) explains that online groceries are predominantly delivered in re-usable crates which are unpacked on the doorstep and then returned to drivers. Defra says that with unprecedented demand for online grocery orders due to the spread of Covid 19, the temporary suspension of the 5p charge aims to encourage the use of SUCBs. This is to help to prevent the spread of the virus from crates being passed from customer to customer via drivers and to speed up delivery times as drivers can drop deliveries more easily at the doorstep using SUCBs.
58.This instrument amends the Working Time Regulations 1998 to ensure that workers for whom it is not reasonably practicable to take holiday due to the pandemic can carry their holiday into the following two leave years. The Department for Business, Energy and Industrial Strategy (BEIS) says that this will protect workers by ensuring they do not risk losing their holiday entitlement, while also ensuring that businesses have the flexibility and the staff needed to respond to the crisis. BEIS expects take-up mainly by businesses and public sector organisations that have experienced a significant increase in short-term demand as a result of the pandemic and the resulting restrictions on public life, such as manufacturers of essential goods, food retailers, healthcare and transport businesses and their respective supply chains. The instrument applies to Great Britain. With regard to enforcement, BEIS told us that “[w]here the exemption applies but an employer does not permit a worker to carry their holiday forwards, they must instead facilitate the worker taking their holiday in the leave year to which it relates. Workers who feel their rights are being denied may complain to an employment tribunal or contact ACAS for free and confidential advice”.
59.These three Orders temporarily lift prohibitions of certain types of anti-competitive activity and agreements, as set out in Chapter 1 of the Competition Act 1998 (“the 1998 Act”), in three sectors: private and public healthcare providers in England, UK supermarkets and their logistic service providers and ferry services to and from the Isle of Wight. BEIS says that the aim is to enable private healthcare providers to support an expansion of NHS capacity in England, to secure the continued supply of groceries across the UK and to maintain the transport of essential goods and personnel, including medical staff, to and from the Isle of Wight during the pandemic. The Orders specify the types of activities and agreements between the different providers that are temporarily excluded from the prohibitions under the 1998 Act, such as sharing information about capacity, coordinating staff deployment or the joint purchasing of goods, facilities or services. The exemptions apply retrospectively from 1 March (health services and groceries) and 14 March (ferry services in the Solent). According to BEIS, the direct sharing of sensitive information relating to costs or prices or future business planning is not exempt, to ensure that competition law is disapplied only where this is necessary to deal with the current crisis. BEIS expects the exemptions to be in place for less than 12 months. The Orders enable the Secretary of State to end the exemptions once health services, the supply of groceries and ferry services in the Solent are no longer disrupted. The Secretary of State will have to give a minimum of 28 days’ notice to allow for the orderly winding down of any temporary arrangements.
60.These Regulations enable the NHS Board, with the agreement of DHSC, to suspend certain services normally required by GP, pharmacy and dental contracts in England and to prioritise delivery of other more essential services during a pandemic. The House should be aware that these are permanent provisions that may also be applied to future situations where there is serious risk to health. In particular, these Regulations enable arrangements for the delivery of medicines to patients under isolation or the ‘shielding’ strategy who have been advised to stay at home. They also make provision for GP practices to work on Good Friday and bank holidays, if need be. Suspension of any contract terms will be implemented by the NHSE/I as a formal “trigger” letter which will include an end date on which the arrangement will lapse. These letters will be widely distributed to commissioners, practices and other stakeholders. It would be for DHSC to consider notifying Parliament. ,
61.In response to the Covid 19 pandemic, the Government announced on 20 March 2020 that they were asking retired health and social care practitioners to consider returning to work. Such individuals can only be re-engaged by the NHS or other employers if they have been registered with the relevant professional body, and that in turn requires a criminal record check to ensure that the applicant is not barred from working with children or adults in a regulated activity. This instrument will allow for the appropriate checks to be undertaken free of charge for emergency volunteers, health professionals subject to temporary emergency registration, and those applying to provide NHS health services or social care services in England and Wales, whether they are providing direct care or covering for staff who are ill. The intention is to avoid placing cost burdens on the employer or applicant at a time when the focus is on filling roles safely and quickly.
62.This instrument is being made in order to allow the Nursing and Midwifery Council (NMC) to adapt its current operating procedures to respond to the Covid 19 emergency, particularly in the light of its new temporary powers under the Coronavirus Act 2020 to register volunteers it decides are fit, proper and suitably experienced. The amended Rules allow more flexibility in the time limits for professionals to renew their registration. They also adapt NMC’s panel hearing process, including fitness to practice hearings, during the emergency by changing the rules for panel member terms, panel constitution, and by providing for remote hearings, and for notices to be sent by e-mail rather than post. These amendments will cease to have effect when the Secretary of State notifies the Registrar that the emergency has ended or when the relevant section of the Coronavirus Act 2020 is no longer in operation.
63.Normally medical practitioners cannot provide general medical practitioner services for the NHS unless they are registered on the specific “medical performers list” maintained by the NHS Commissioning Board. To respond to the Covid 19 emergency, these Regulations allow the NHS to deploy medical practitioners in primary care in a more flexible way. This instrument sits alongside powers in the Medical Act 1983 to carry out the emergency registration of medical practitioners. However, these Regulations do not cover non-GPs returning to join the General Medical Council’s temporary register as they will not be considered eligible to work in primary care.
64.This instrument temporarily removes statutory requirements for local authorities to hold annual meetings and allows such meetings to be held remotely using video or telephone conferencing or live web streaming. The instrument also allows local authorities to provide access for the public and press to any meetings and associated documents through remote means, such as the local authority website. As annual meetings are typically used to make appointments, the instrument allows current appointments to continue until the next annual meeting. The instrument also enables Police and Crime Panels in England and Wales, which advise and scrutinise the work of Police and Crime Commissioners, to hold meetings remotely and to give the public and press remote access to these meetings. MHCLG says that the measures are time limited and apply only to meetings taking place before 7 May 2021. The Department may bring forward this date through further regulations if social distancing rules are relaxed or removed. According to MHCLG, the measures will help local authorities redeploy their resources to deal with the pandemic and ensure essential business continues whilst upholding democratic principles and protecting the health and safety of members, officers and the public in line with official public health guidance. MHCLG says that the instrument has been drafted following engagement with local government representatives, including the Local Government Association.
65.This instrument extends the deadlines for certain public and local bodies to publish, and make available for public inspection, their annual accounts and supporting documents. The changes apply only in relation to annual accounts for the 2019/20 financial year. The deadline for making the annual accounts available for public inspection is extended from the first 10 working days of June or July (depending on the category of local body) to the first working day of September 2020, while the deadline for publishing the statement of accounts (together with any certificate or opinion of the local auditor) is extended from 31 July or 30 September (depending on the category of local body) to 30 November 2020. MHCLG says that the new deadlines will help authorities to better manage any staff shortages resulting from the pandemic and also provide audit firms with more time to audit the accounts this year. While the territorial extent of the instrument includes Wales, MHCLG explains that there are also separate regulations covering Welsh authorities and that officials have consulted with the Devolved Administrations to make them aware of this instrument, so that they may consider making similar arrangements.
66.To support the response to the pandemic, this Order allows local authorities and health service bodies in England to temporarily develop and change the use of facilities without having to submit a planning application. The instrument amends the Town and Country Planning (General Permitted Development) (England) Order 2015 to introduce a new time-limited national “permitted development right”. This allows local authorities and health service bodies to bring forward additional facilities and new uses for existing buildings until 31 December 2020, for example for use as hospitals, testing centres, coroner facilities, mortuaries and accommodation or for parking, storage and distribution. MHCLG says that the temporary permitted development right will avoid any delays caused by having to make, submit and process planning applications, and that it will give the NHS and local authorities time to determine their needs. If necessary, they will be able to apply for planning permission for longer term use which would then be considered in the usual way. Any extension of the temporary period beyond 31 December 2020 will require a further instrument. With regard to private property rights, MHCLG told the Committee that the Permitted Development Right can be used “where there is a pre-existing contract and also where the NHS/public body wish to arrange a contract now or in the future”. MHCLG added that the “right does not override any existing arrangements with landlords” and that for new contracts it “would be up to the council or NHS body to reach an agreement with the private owner”.
67.This instrument mainly amends regulations on tax credits, Child Benefit, Guardian’s Allowance and Childcare Payments to give effect to the Fiscal Framework Agreement with Scotland, so that any new benefits or discretionary payments do not result in UK benefits being reduced. The instrument also includes provisions to ensure that payments made by the National Emergencies Trust (NET) are disregarded as income for tax credits purposes. The NET was established as a charity in March 2019 to support victims of a national domestic disaster, allowing the public to donate to a single organisation which then distributes the funds to frontline charities. The NET has launched an appeal for donations to help with the Covid 19 pandemic which raised £12.5 million in its first week.
68.These instruments make provision for both those who are making a new claim because of the pandemic or were already in receipt of Universal Credit (UC), Jobseeker’s Allowance or Housing Benefit to cope with the financial impacts arising from the Covid 19 outbreak. Benefit rates are increased by approximately £20 per week and the requirement to seek employment has been suspended initially for three months. Rules that would normally affect those who are self-isolating, sick or caring for a sick family member are suspended, as are certain rules affecting the self-employed. It is estimated that 2.5 million households will benefit from the increase to the UC Standard Allowance, as well as new claimants who become unemployed or whose earnings or work hours decrease because of the outbreak. The main provisions will lapse eight months after 13 March 2020.
69.Statutory Sick Pay (SSP) is paid by employers to employees who are incapable of work due to sickness at a flat rate of £94.25 for up to 28 weeks (uprated to £95.85 on 6 April). In relation to coronavirus these instruments suspend the normal rules so someone may receive SSP when not actually sick but self-isolating and remove the requirement to serve three unpaid “waiting days”. This will apply retrospectively from 13 March 2020 to align with previous regulations, the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 (SI 2020/287) which from that date provided that employees isolating themselves in accordance with government guidance on coronavirus should be treated as incapable of work, and therefore potentially entitled to SSP, with the objective of encouraging people to stay at home if they had been in contact with the disease.
70.These instruments make changes to the Social Security (Coronavirus) (Further Measures) Regulations 2020 (SI 2020/371) and equivalent regulations for Northern Ireland (SR 2020/53) mentioned above, to change the assessment period in which the temporary increase of the Universal Credit standard allowance and increased Local Housing Allowance rates will take effect for each award of Universal Credit. This is intended to make the additional support provided available to claimants more quickly.
71.Social Fund Funeral Expenses Payments help eligible claimants with the cost of arranging a funeral. The Payment meets the full, necessary costs of a cremation or burial, including documentation and transport of the deceased. An additional discretionary element can be used to help pay for items such as flowers, car hire, the funeral ceremony and funeral director charges for making the arrangements. This instrument increases the cap on the discretionary element from £700 to £1,000 to provide additional support to claimants in order to help them manage the economic impacts of the coronavirus pandemic.
72.This instrument makes provision for the approximately 4,000 individuals on temporary release from a prison in England and Wales and Northern Ireland during the Covid 19 outbreak (see SIs 400 and 401 below) to access means tested benefits during the period of that release. These instruments will expire at the same time as the main social security variation set out in SIs 289 and 371 and SRs33 and 53 respectively. (In Scotland the policy is the same, but prisoners are being released under devolved powers, which means that they can be paid these means tested benefits without a need to amend legislation.)
73.The Investigatory Powers Act 2016 regulates the intelligence and law enforcement agencies, by requiring them to use warrants approved by a Judicial Commissioner when deploying certain techniques to investigate national security issues and serious crime. These Regulations vary the warrant procedure to extend the timelines for after the event approval by a Judicial Commissioner from three working days to nine working days and the lifespan of the urgent warrant from five working days to 12 working days. As many of the Judicial Commissioners are in the at-risk demographic for Covid 19, this instrument also allows the Investigatory Powers Commissioner to directly appoint temporary Judicial Commissioners to alleviate the strain Covid 19 has placed on the process. The instrument will lapse after 12 months but may be repealed earlier if the Home Office and the Investigatory Powers Commissioner deem it appropriate.
74.The Coronavirus Act 2020 postpones the local elections that were to be held on 7 May 2020 elections by a year to 6 May 2021. It also extends the term of office of current incumbents for a year and reduces by a year the term of office of those elected in the postponed elections from four to three years to avoid further disruption to the electoral cycle. Amongst other changes, this instrument postpones local by-elections, local advisory polls and governance and neighbourhood planning referendums in England that had already been scheduled and any local electoral events that would otherwise be required to be held by 5 May 2021 until 6 May 2021. The instrument also postpones by-elections for Police and Crime Commissioners (PCCs) in England and Wales until 6 May 2021. MHCLG says the changes will give local authorities greater flexibility as to how they deploy their resources in response to the pandemic, as they will not have to support electoral events, and that further regulations will be laid to deal with related issues, such as the treatment of postal votes that have already been received for elections that have been postponed. MHCLG told the Committee that the practice of co-opting councillors to fill vacancies would continue in the absence of local by-elections and that this would help to prevent meetings of parish councils from becoming inquorate.
75.For the duration of the coronavirus transmission control period (as determined by the Coronavirus Act 2020) the Government have been advised by Public Health England of the need to put in place mechanisms to allow Her Majesty’s Prison and Probation Service to release prisoners within clearly prescribed limits. This needs to balance protecting the public and maintaining law and order, with protecting the health and safety of those working and detained in prison. The first instrument gives the prison governor, on behalf of the Secretary of State, the power to direct temporary releases, specifies which prisoners may be released and which prisoners may not be released (for example those serving life sentences, terrorists and sex offenders). It also gives the power to add conditions to the release. The second instrument provides that prisoners so released may be accommodated in Approved Premises. (See also SI 409 and SR 63 which provide for the payment of benefits to prisoners on temporary release.)
76.These Rules amend normal proceedings so that Tribunal cases can be conducted more safely during the pandemic. The Employment Appeal Tribunal (“the Appeal Tribunal”) may be conducted by means of electronic communication, but only if the Appeal Tribunal considers that it would be just and equitable to do so. SI 2020/415 also provides that the parties and members of the public are able to hear what the Appeal Tribunal hears and see any witness as seen by the Appeal Tribunal. SI 2020/416 introduces more flexibility for a range of other First-tier and Upper Tribunal hearings either by extending time limits, allowing certain urgent decisions to be decided only on papers, allowing for remote hearings or for a private hearing where suitable technology for broadcasting is not available (though in such cases a recording must be made of proceedings). These amendments will expire on the same day as section 55 of the Coronavirus Act 2020.
77.These Rules make temporary amendments to the Criminal Procedure Rules 2015, to apply the modifications to legislation made by the Coronavirus Act 2020 (“the 2020 Act”). These Rules make practical changes so that the greater use of live links for hearings and trials will work appropriately, in particular in relation to extradition hearings. They also make amendments to the relevant Criminal Procedure Rules so that the modification made by the 2020 Act, allowing detention under the Mental Health Act 1983 on the advice of only one doctor where necessary, can be applied. Most of these amendments will expire automatically when the relevant sections of the Coronavirus Act 2020 expire.
78.This Order expands the capacity for monitoring tagged individuals by adding another provider to the approved list. This is necessary because of the number of prisoners being temporarily released from jails and Young Offenders institutions to reduce infection during the pandemic period. (See SIs 400 and 401 above.)
79.We recently published information about the Street and Road Works (Amendments Relating to Electronic Communications) (England) Regulations 2020 (SI 2020/122). Those Regulations mandated the use in England of Street Manager, a new digital service developed by the Department of Transport (DfT) which aims to transform the planning, management and communication of street and road works. As a result of the impact of Covid 19 on their resources, many representatives from local authorities and utility companies have asked DfT to delay the coming into force date of Street Manager from 1 April 2020 to 1 July 2020 so that the staff who are available can focus on delivery of front-line services. This instrument implements that delay.
80.These Regulations revoke SI 2020/195 which was to increase the General Levy paid by occupational and personal pension schemes by 10% from 1 April 2020. The General Levy recovers the core running costs of the Pensions Regulator, the Pensions Ombudsman and parts of the Money and Pensions Service and is currently running at a deficit. The revocation means that the levy will remain at the lower levels set in SI 2005/626 as amended, with the aims of preventing additional cash flow pressures for businesses in view of the economic uncertainties posed by the pandemic.
81.This instrument gives small-scale renewable electricity generators extra time to apply for accreditation under the Feed-In Tariffs (FIT) scheme. BEIS explains that the FIT scheme, the main programme to encourage the deployment of small-scale low-carbon electricity generation in Great Britain, closed to new applications on 31 March 2019, subject to several time-limited extensions which had a deadline of 31 March 2020. According to BEIS, up to 250 projects, mostly community energy installations, were close to completion but were facing delays beyond their control due to the pandemic, so that they were unable to complete construction, commission the projects and submit their application for accreditation by 31 March 2020. This instrument extends the deadline to 30 September 2020 for most schemes to prevent the loss of investment. The Department says that it will consider whether further extensions are necessary if the consequences of the pandemic continue in the longer term.
82.This instrument exempts light vehicles (cars, vans, motorcycles, etc.) in Great Britain that are due for an MOT test from 30 March 2020 to 29 March 2021 from that requirement for six months, although the duty to ensure vehicles are in good working order remains unchanged. This also allows for the testing of the estimated 16.6 million relevant MOTs affected, to be staggered as their six-month period ends. Without this exemption vehicles could not be taxed, and their insurance cover might be invalidated. The provisions of this instrument do not apply to public service vehicles or goods vehicles. DfT states that this instrument will lapse on 30 September 2020 but may be revoked earlier if it no longer serves a useful purpose.
83.This instrument extends the retention deadlines for fingerprints and DNA profiles held by Counter-Terrorism Policing Command, Police Service of Northern Ireland (PSNI), and Police Scotland that would otherwise automatically be destroyed during the six-month period from 2 April 2020. An exception in the Protection of Freedoms Act 2012 allows, where there is a national security interest, the Police to apply to retain such samples for a further two years (renewable), but due to the impact of Covid 19, the resources to conduct the necessary reviews have been diverted to other tasks. If the statutory retention periods were left to operate as normal, the biometrics of up to 150 individuals per month would be deleted without review. The Home Office has sought the extension to ensure that the records of potential subjects and of some already identified as of national security interest due for review, are not accidentally lost.
14 Secondary Legislation Scrutiny Committee, ‘Scrutiny of secondary legislation laid to tackle coronavirus pandemic’ (27 March 2020): [accessed 21 April 2020].
15 The instrument refers to the NHS Commissioning Board as the key agent whereas the EM refers to NHS England and Improvement (NHSE/I): they are the same organisation – the NHS Commissioning Board is the formal name for NHSE/I.
16 Or SR 2020/32 in Northern Ireland.
17 By-elections are scheduled to fill casual vacancies that occur when an individual is no longer able to fill their elected seat as a result of death, resignation, incapacity or disqualification.
18 Criminal Procedure Rules 2015 ().
19 See , Session 2019-21 (HL Paper25) on Street and Road Works (Amendments Relating to Electronic Communications) (England) Regulations 2020 ().
20 Occupational and Personal Pension Schemes (General Levy) (Amendment) Regulations 2020 ().
21 Occupational and Personal Pension Schemes (General Levy) Regulations 2005 ().