COVID-19 and delegated legislation
Marc Bloomfield
COVID-19 serves to highlight the existing fault lines in the UK’s political system and the difficulties in striking the balance between executive action and parliamentary oversight. The powers that the Coronavirus Act 2020 (CvA) gives the executive are genuinely unprecedented but the extent to which the government relies on powers in the new legislation or pre-existing powers to enable its response to the crisis will, of course, depend on how events unfold.
The CvA became law on 25 March 2020; however, delegated legislation to combat the coronavirus had been laid since January of this year. Nine coronavirus- or COVID-19-related statutory instruments were laid prior to the Act becoming law, using other powers.
For example, the Health Protection (Coronavirus) Regulations 2020 SI No 129 were laid as made on 10 February 2020 under urgent procedures in Public Health (Control of Disease) Act (PH(CD)A) 1984 s45R. These regulations allowed police constables to detain individuals and impose restrictions on travel and other activities where they had reasonable grounds to believe an individual had coronavirus and posed a risk to others. They were revoked on 25 March by the CvA, which now supplements some of the existing police powers under the PH(CD)A 1984.
The PH(CD)A 1984 was also used in early March to lay a statutory instrument requiring all doctors to notify Public Health England if a patient was recorded as having COVID-19 (Health Protection (Notification) (Amendment) Regulations 2020 SI No 237). Other regulations laid before the Coronavirus Bill included delegated legislation laid under the Social Security and Welfare Reform Acts to allow people with COVID-19 to claim for universal credit and other benefits without having to meet officials face to face (Employment and Support Allowance and Universal Credit (Coronavirus Disease) Regulations 2020 SI No 289), and an exemption for overseas visitors from NHS healthcare charges, if they were being treated in the UK for coronavirus (National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2020 SI No 59).
The high-profile Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 SI No 327, which shut many UK businesses including pubs and cafés, were laid using powers under the PH(CD)A 1984 on 23 March.
The Coronavirus Bill was laid in parliament on 19 March and was law by 25 March. It covers a wide array of topics related to the virus. These include, among many others, emergency registration of healthcare professionals, maintenance of food supply, provision for additional statutory sick pay, and powers to close airports and detain suspected sick persons. The Act has 102 sections and 29 Schedules. The Delegated Powers and Regulatory Reform Committee noted that some of the powers in the bill, including the powers to postpone referendums and elections and disapply certain primary legislation, are not, on their face, expressly linked to the coronavirus outbreak or any other health emergency (Coronavirus Bill; Fisheries Bill [HL]: government response. 9th report of session 2019–21, HL Paper 42, 23 March 2020).
The bill attracted criticism because, as initially drafted, the powers remained in force for two years. This is in sharp contrast to similar emergency legislation such as the Civil Contingencies Act (CCA) 2004, which mandates the renewal of emergency powers every 28 days. The bill initially allowed the powers to be extended beyond two years in six-month increments using the made affirmative procedure. This would have brought any six-month extension into effect immediately but would have lapsed if not debated within 40 days.
In response to concern about the length of these powers and reports by both the Constitution Committee (Coronavirus Bill. 4th report of session 2019–21, HL Paper 44, 24 March 2020) and the Delegated Powers and Regulatory Reform Committee (HL Paper 42, see above), the government introduced clause 19 as an amendment to the bill in the House of Commons. Clause 19 states that the powers in the bill are initially in force for six months. At the end of that six-month period, a motion will be put to the House of Commons, which will vote on whether to renew the powers for a further six months. This provision appears to give a much greater role to parliament in terms of approving the continuation of such sweeping powers.
However, there is one outstanding concern. Clause 19 allows for the motion for the six-month extension of powers to be laid within a period of seven sitting days beginning immediately after the six-month review period ‘so far as practicable’. Parliament went into recess early on 26 March 2020, after passing the CvA. The effect of what is now s98 is that if parliament is still in recess six months from now then the minister does not have to lay the motion until within seven days of parliament reconvening. Therefore, if parliament is in recess for a long period due to the virus, in effect the powers could be in force for much longer than six months before the renewal motion needs to be laid. By contrast, the CCA 2004 does allow for parliament to be recalled from recess when emergency regulations are laid. There is no such provision in the CvA.
After the CvA became law, there was a flurry of subsequent delegated legislation. The meatiest statutory instrument – the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 SI No 350, which were made and came into force on 26 March – was made using powers under the PH(CD)A 1984 and not the new Act. These regulations were reviewed by 16 April 2020 (reg 3(2)). These regulations revoked the Health Protection (Coronavirus, Business Closure) (England) Regulations and combined them with regulations limiting the free movement of persons. Reg 6 is the provision of most relevance to everyday Britons. It lists the ‘reasonable excuses’ for leaving the home and, as commentators have noted, does not expressly say that exercise may only be taken once a day, although that has been the accompanying verbal guidance. On 22 April 2020 the government laid clarifying regulations, the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 SI No 447, which add ‘or be outside of’ to the word ‘leave’ in reg 6. No person may now ‘leave or be outside of' their home without a reasonable excuse. The definition of home (reg 6(3)) includes a garden, passage, stairs, garage or outhouse.
The CvA has conferred powers on the Northern Irish and Scottish governments to impose lockdown measures and their equivalent regulations (Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 SI No 55 and Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 SI No 103) were made on 28 and 26 March respectively using the Act.
To say the coronavirus crisis is fast-changing would be a monumental understatement. This piece has served as a brief update on the delegated legislation landscape so far. It remains to be seen whether we will see a deluge of delegated legislation under the CvA in the coming weeks or if the government will continue to use powers that pre-dated COVID-19, such as those under the PH(CD)A 1984.

About the author(s)

Description: Alexandra Sinclair - author
Alexandra Sinclair is a Research Fellow at the Public Law Project and a PhD candidate at the London School of Economics.