COVID-19 UK Emergency Legislation

The UK Government introduced emergency legislation on 19 March 2020 to strengthen the UK’s response to the COVID-19 situation by way of the Coronavirus Bill (the “Bill”).

The new powers under the Bill are “temporary” (– effective for a period of two years). However, it should be noted that this period can be extended by regulation from the Secretary of State for multiple six-month periods. This is likely to prove controversial. The Government envisages that the Bill will be passed by Parliament in the next few days, which means that the opportunities for debate and amendment by Parliament are very limited.

The Bill includes wide-ranging powers to: allow the Secretary of State to restrict events and close premises; introduce a national volunteer scheme; extend the interception and collection of data by law enforcement agencies; close borders and extend Statutory Sick Pay (SSP).

The following is a brief overview of the primary areas likely to be of interest to commercial organisations. We do not cover the extensive provisions aimed at increasing the NHS and social care workforce.

There already exists in the UK a suite of emergency legislation which was not passed with COVID-19 in mind. One of the main purposes of the Bill is to streamline some of the processes in that legislation, and also to provide equivalent powers across all four nations of the UK.

The topics covered by the Bill are:

• The Secretary of State may, in the event that the incidence or transmission of COVID 19 constitutes a serious and imminent threat to public health, restrict or prohibit any event or gathering in any place, vehicle, train, vessel or aircraft, any movable structure or offshore installation and require the closure of any premises for such period as the Secretary deems appropriate. The Bill sets out a number of criteria to consider in determining what the relevant restriction period should be. Violations of the applicable directive would be punishable by a fine or imprisonment. It should be noted that these powers are described as “streamlining” the existing powers under the Public Health (Control of Disease) Act 1984 which provide for premises to be closed and things seized where, following an order of a Justice of the Peace (broadly), there is a serious and imminent threat to the public. The Bill moves the power from a Justice of the Peace to the Secretary of State;
• The Secretary of State has authority to require any port, airport or international rail terminal to close or suspend operations where the Secretary considers there to be a real and significant risk that there are (or will be) insufficient Border Force officers to maintain adequate border security. The initial suspension may not last for more than six hours but may be extended for further periods of up to 12 hours each. Consequential provisions are included dealing with the failure to obey an applicable direction;
• Employees and workers may take Emergency Volunteer Leave (EVL) in blocks of two, three or four weeks during any one period of 16 weeks. There are exclusions for key workers (eg, police officers) who may not participate in ELV. The Bill also makes provision for the continued application of terms and conditions of employment during any period of EVL. The Secretary of State is also required to make arrangements for the compensation of emergency volunteers for some loss of earnings and travel and subsistence payments, although the Bill is not prescriptive as to what form those arrangements might take, nor by when they must be in place. Volunteers must give employers three days’ notice of their absence from work under the scheme;
• An extension to the time period, from three days to 12 days, to obtain approval by the security and law enforcement agencies ex post facto of powers to intercept and collect data under the Investigatory Powers Act 2016. As of the 12th day, any warrant must be reviewed by a Judicial Commissioner;
• Provisions to enable SSP to be payable from the first day of sickness absence (where due to COVID-19) and establish a SSP refund scheme for employers with fewer than 250 employees (as previously announced on 4 March 2020). Eligible employers will be able to claim up to two weeks’ SSP for each employee absent due to COVID-19. The Secretary of State is to make regulations as to the manner in which eligible employers may be compensated, but this will be by way of recovery from Her Majesty's Revenue and Customs.

The Bill will revoke The Health Protection (Coronavirus) Regulations 2020 which authorise (on the authority of the Secretary of State or a registered public health consultant) the detention of individuals for the purpose of screening or isolation if there are reasonable grounds to believe they are infected with the virus and risk infecting others, as equivalent powers are replicated in the Bill, but across the entirety of the UK.

Given the exceptional circumstances, the powers taken by the Government are, perhaps, not as wide-ranging as they might be. For instance, unlike some other European countries (The Netherlands, Spain and France), there is no general power to requisition personal protective equipment or respirators.

Nor does the emergency legislation make any provision for a more generalised employment support mechanism which many in business are asking for (along the lines of the schemes in place in other European countries, such as the Republic of Ireland and some Nordic countries).

However, this Bill may well form the model for further emergency legislation going forward and, in doing so, centralises power in the Westminster Government (as opposed to the Devolved Administrations) and does so for a potentially considerable period of time.