In March 2020, Parliament passed the Coronavirus Act 2020. This wide-ranging legislation conferred a suite of powers and temporary flexibilities across a range of policy areas, to enable the public sector to respond to the Covid-19 pandemic.
Some provisions in the Act are permanent but others are temporary. Temporary provisions, if they have not already expired, will expire by 25 March 2022 (two years after the Act was passed). The Government has set out its plans for how this deadline will be dealt with in its Living with Covid policy paper. This Insight explains the implications of the impending changes.
Temporary powers and time limits
When legislating for emergency provisions, it’s difficult to predict for how long they will be needed. The Coronavirus Act 2020 anticipated this, and allows ministers, by regulations, to:
- temporarily suspend provisions
- revive suspended provisions if they are needed again
- permanently end provisions early
- extend provisions before they expire (by up to six months at a time).
Suspension, revival and early expiry
Provisions might be suspended, rather than expired early, if the Government thinks it might need them again in another pandemic wave. For example, a provision in section 58, which relaxed the rules on disposing of dead bodies, is currently suspended.
Many provisions of the Coronavirus Act have, however, been expired early, either because they were not needed, or were used but the Government decided they were no longer needed. For example:
- Emergency Volunteering Leave would have allowed people to take unpaid leave off work to help the NHS and social care sector, as a last resort in the event of staffing shortages. Other measures, like temporarily re-registering retired staff, proved sufficient, and so these now expired provisions were never brought into force.
- The Government temporarily increased Universal Credit and Working Tax Credits during the pandemic (the £20 a week “up-lift”). Section 77 of the Coronavirus Act, which helped to implement that policy has been expired, because the uplift was withdrawn.
The 25 March 2022 deadline
Many temporary Coronavirus Act provisions remain in force. However, by default they will expire on 25 March 2022. The Government has said it will allow almost all these provisions to expire.
The following policy areas have temporary changes which are set to expire in England or (where relevant) on a UK-wide basis:
- temporary registration of health and social care professionals
- Continuing Care Assessments for those discharged from hospital
- registration of stillbirths
- authorisation of cremations
- appointing temporary Judicial Commissioners under the Investigatory Powers Act
- continuity of educational and childcare provision
- Statutory Sick Pay
- pension arrangements for temporarily re-registered health and social care professionals
- powers to suspend port operations
- the transportation and storage of dead bodies
- state aid quotas
- setting longer notice periods for evictions from residential and business tenancies
This will mean that decision-makers will lose some of the extra policy and administrative flexibility they were given during the pandemic. In some cases, the Government wants to retain flexibility by other means. For example, the Nursing and Midwifery Council and the Health and Care Professions Council will be given new powers, to (re)register staff on a temporary basis.
Some provisions will be extended
The Government has identified four provisions of the Act it wants to keep for up to six months after 25 March 2022.
Section 30 allows coroners inquests to proceed without a jury where the suspected cause of death is Covid-19. The Government plans to replace this with further temporary measures in the Judicial Review and Courts Bill, which has yet to become law. The extension would ensure this option is available to inquests until there is a new statutory basis for it.
Sections 53 to55 relax the rules on the use of remote video or telephone proceedings in the criminal courts. The Police, Crime, Sentencing and Courts Bill would make these changes permanent but it is also yet to become law.
Scrutiny of remaining provisions
Parliament will continue to have a scrutiny role after 25 March because those four temporary provisions will still be active.
Firstly, both Houses are expected to vote on the regulations that would extend sections 30 and 53 to 55. The extension needs to happen before the provisions expire.
Secondly, the Government will still have scrutiny duties under the Act. Under section 97, it will have to publish another two-monthly report (towards the end of March). Under section 98, there will also have to be another Six-month parliamentary review of the Act (by mid-April).
Some of the Coronavirus Act’s powers will remain in force indefinitely because they are permanent. For example, section 76 gives permanent powers to HMRC to implement certain forms of financial support, like the Coronavirus Job Retention Scheme, as and when the Treasury thinks necessary.
Most of the permanent provisions make transitional arrangements for when temporary provisions of the Act expire. Others, such as those postponing elections that have since taken place, are now spent.
What about Scotland, Wales and Northern Ireland?
Some provisions in the Coronavirus Act affect only one part of the UK or relate to devolved matters in some or all of Scotland, Wales and Northern Ireland.
For example, in Scotland and Northern Ireland, the powers to restrict movement, gatherings and events, and mandate face-coverings are temporary and in the Coronavirus Act. By contrast, equivalent powers are permanent and in the Public Health (Control of Disease) Act 1984 for England and Wales.
Under the rules of the Coronavirus Act, Scottish Government, Welsh Government, or Northern Ireland Departments are responsible for decisions about extension and expiry of devolved provisions, rather than UK ministers.
The Scottish Government and Northern Ireland Executive have indicated that, while immediate health measures will end before the end of March, they want to retain these powers for a further six months in case they are needed again.
In the longer term, Scotland and Northern Ireland might update their own public health legislation, so that these powers are available for future crises on a similar basis to those in England and Wales.
About the author: Graeme Cowie is a researcher specialising in constitutional law at the House of Commons Library.
Photo by Marcin Nowak on Unsplash