The post below was first published on our Public Law blog.
Following our briefing paper of Monday 23 March 2020 (see here), the Coronavirus Bill has now passed through all stages in both the House of Commons and the House of Lords, and is now on the statute books as the “Coronavirus Act 2020” after it received Royal Assent on Wednesday 25 March 2020. The Act will see the powers of ministers, local authorities, police and immigration officers, and health professionals strengthened, albeit temporarily.
The Act is in largely the same form as the Bill, although additional provisions have been added, including those dealing with the powers of HMRC, provisions on protection from eviction and forfeiture for residential and business tenancies respectively, and provisions on extending time limits for the retention of fingerprints and DNA profiles for national security reasons. The one change of particular note is the addition of new provisions in relation to the duration of these far-reaching powers.
Expiry of the Act
As noted in our briefing, a key concern was the ‘sunset clause’ i.e. the clause that sets out the time period after which the powers under the Act would expire. The Act provides for an initial period of two years. There were concerns that this period was excessive, particularly when wide-ranging emergency powers had being granted to the Government and other public authorities. It was suggested by some MPs and commentators that the grant of such powers should only be to the extent that it was necessary and proportionate, and consequently should be granted for a shorter period of time initially. By way of contrast, under the Civil Contingencies Act 2004, “emergency regulations” are much more rigorously time limited. They must be made afresh every 30 days and lapse seven days after they are laid unless both Houses of Parliament have explicitly approved them.
Following these concerns being raised on the floor of the Commons from both the Conservative and opposition benches, the Government submitted its own amendment to the Bill. Section 98 of the Act now provides a mechanism by which Parliament can review certain key powers contained within the Act every six months. It should be noted that a) this review mechanism does not affect the lifespan of any measures that are with devolved competence; and b) the review mechanism requires the House of Commons to approve or reject the temporary emergency measures collectively – there is therefore no way for Parliament to pick and choose which measures can stay in force. It might be difficult in practice for Parliament to vote against the continuation of measures after six months, if at least some of the measures are still necessary. However, the Health Secretary Matt Hancock has assured MPs that the powers would only be used “when strictly necessary”, and only for as long as required to respond to the Covid-19 crisis.
To further allay concerns around the time limit under the Act and the lack of effective opportunities to scrutinise the Act, Section 99 requires the Government to publish and allow debate on a “one-year report” in both Houses of Parliament (should the powers in the Act remain in operation beyond March 2021).
Given the length and complexity of the Act, and the speed at which it was been drafted and passed, it may well be that the Government will need to introduce amendments in due course to ensure the smooth functioning of the Act.
The Act took effect immediately (with the exception of the provision on Statutory Sick Pay, which will have retrospective effect from 13 March 2020). It is worth reiterating that legislation of this nature is unprecedented, and how it is implemented will be closely scrutinised. The immediate impact of the Act is that it will give some teeth to the Government’s measures on social distancing and its stay-at-home advice. For the last few days, any such measures at the moment have been operating through a combination of government guidance (which is not strictly enforceable) and regulations under existing primary legislation. For example, the closure of pubs, hotels, cafes, and other leisure hubs was done through specific regulations – The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 – passed under powers conferred by the Public Health (Control of Disease) Act 1984. Over the coming days, the Government is expected to introduce Regulations and make Directions under the Coronavirus Act that will give authorities the power to now enforce the lockdown measures. However, it is important for the Government to ensure that the exercise of any powers under the Act is in line with its objectives, and that its actions are necessary and proportionate to manage the crisis.
If you have any questions on the Coronavirus Bill 2020 or any other concerns around the impact of the Covid-19 legislation, please contact Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa or Sahil Kher. Please also visit our client Covid-19 hub here for more insight from Herbert Smith Freehills on the legal issues surrounding the current outbreak.