In response to the COVID-19 pandemic, the UK Parliament has passed emergency powers to protect the UK population from further avoidable loss of life. The Government placed the Coronavirus Bill before Parliament on 19 March 2020 and after approval from both Houses the legislation was passed into law on 25 March.
Aims of the legislation
The Government estimates that a severe pandemic could infect up to 80% of the population, which in turn could result in a reduced workforce, additional pressures on health services and added strain on the management of the deceased with respect and dignity. In order to mitigate these possible impacts, the Act is designed to introduce temporary measures which either amend existing legislative provisions or introduce new statutory powers.
At a high level the Act is aimed at achieving the following goals:
- Increasing the available health and social care workforce
- Easing the burden on frontline staff
- Containing and slowing the virus
- Managing the deceased with respect and dignity
- Supporting people
The Act includes a number of the Government's headline policies, particularly in relation to supporting the NHS. One such measure is to allow the emergency registration of health professionals, such as doctors and nurses who recently left the profession. However, there are also wide ranging powers that will impact businesses and individuals, some of which we consider below.
Powers to detain
Individuals who may have COVID-19 (or those who within the last 14 days have been in an "infected area" that is outside of the UK) may have their movements dictated by public health officers, constables and, in particular circumstances, immigration officers. This includes the power to order the detention, isolation and screening of those persons. Under the new powers – combined with The Health Protection (Coronavirus) Regulations 2020 which came into force on 10 February 2020, police officers will be able to detain a person for up to 48 hours, which is double the standard maximum for most criminal offences without charge. Where the powers are used by an immigration officer the maximum detention period will be 12 hours.
It is unclear from the current guidance how officers will assess whether a person is potentially infectious and whether there will be any presumptions about the infection having being passed to those who have been in contact with a person suspected of being infected. These powers to restrict individuals' liberty will clearly need to be used carefully as they are potentially open to misinterpretation and abuse.
The Act also temporarily amends existing mental health legislation to reduce the strain on community health services, including allowing patients to be remanded to hospital for an indefinite period rather than the 12 week maximum in the un-amended Mental Health Act. Additionally, to help ease the strain on the medical professionals, the number of doctors required to certify that a person should be detained under the Mental Health Act has been reduced from two to one.
Powers to prevent gatherings and events and powers to close premises
The Government had already ordered the temporary closure of pubs, restaurants, cafes and leisure facilities in light of the risk posed by venues where people gather. To stem the risk of further transmission, the new legislation standardises this provision across the UK for gatherings to be banned or limited and for premises to be closed as deemed necessary.
The police now have the power to force anyone found to be in breach of a direction to close premises and limit or cancel events. This prohibition is directed towards a wide category of persons and may include the owner or occupier of a premises or anyone involved in managing access to and within the premises.
Powers to oblige a person to provide information about the supply of food
The Act envisages greater co-ordination between the Department for Environment, Food and Rural Affairs (DEFRA), the Devolved Administrations and the food industry. One way the Act will minimise disruption is for the voluntary sharing of information by food retailers through the Data Sharing Protocol.
The Act includes the power to oblige a person (albeit not an individual) in, or connected with, a food supply chain to give information about whether and why the chain is being disrupted or is at risk of disruption. It is therefore necessary for those who play a role in a food supply chain to be aware that businesses may be required to give information to the Government if there is a risk of disruption to the food supply chain, and that they may be fined for failing to do so.
In normal circumstances, competition law is designed to prohibit the sharing of commercially sensitive information by competition (in this case food retailers). However, in these unusual times the Act seeks to ensure that some level of co-operation occurs in order to ensure continued security of supply. That being said, retailers will need to take care to ensure that they comply with the Data Sharing Protocol and that they still retain their strict procedures to ensure that competition law is complied with in relation to their other dealings with the wider industry.
Managing the deceased with respect and dignity
A number of the provisions in the Act are aimed easing the increased administrative burden of managing the deceased. These include the disapplication of the need for coroners to conduct an inquest with a jury for deaths where COVID-19 is the suspected cause and practical arrangements resources and space for the storage, transportation or management of the deceased. In this regard, a person may be required to provide information about an organisations' space or resources, such as refrigerated lorries, for the management of the deceased.
Flexibility on Investigative Powers
There will be additional flexibility under the laws imposed under the Investigatory Powers Act 2016 (the "IP Act"). The Act provides the power for Regulations to be created that give the Investigatory Powers Commissioner the capability to appoint temporary commissioners to oversee and approve the inception of communications.
The ability to make such appointments may have been included in the Act because the Government is concerned that due to staff shortages there will not be an adequate amount of commissioners working at any one time or it may also be because there could be an anticipated increase in the number of interception of communication warrants being issued.
The most intrusive powers under the IP Act are subject to a "double-lock" whereby a warrant must be approved by the Commissioner (in addition to the Secretary of State) before it is issued. However, urgent warrants can be approved retrospectively within a three-day window. Under the Act, urgent warrants may go unapproved by a Commissioner for up to 12 days.
It is perhaps worth noting that under the IP Act one of the grounds for the issue of interception warrant is where the Secretary of State believes that it is in the interests of the economic well-being of the UK. Although an interception of these grounds is restricted to information which relates to the acts or intentions of persons outside the British Islands, it is clear that the economic consequences of COVID-19 are very likely to impact the economic well-being of the UK.
Suspension of Port Operations
A significant concern from the Government is the amount of people who may be out of work at any one time. Border Force provides the essential security checks at the UK's ports and the proposed powers will allow the Secretary of State to direct a port operator (i.e. a person responsible for the management of a port) to suspend relevant operations, either partially or in full, in circumstances where the Border Force is under resourced and therefore cannot properly maintain the security of the UK's ports. In the first instance, senior Border Force officials on behalf of the Secretary of State could direct the port operator. However, any decision to extend the period beyond 12 hours would be taken at ministerial level.
Under the Act, such powers will only be used where the Secretary of State believes that it is necessary and proportionate and once all relevant alternative mitigations have been exhausted. However, if such circumstances arise then there is likely to be scope for significant disruption to supply chains (which may include food or medicines being imported) and for individuals wishing to enter or exit the UK.
Functioning of Courts and Tribunals
The Court system is vital to maintain justice and resolve legal disputes. However, as anyone who has been involved with either criminal or civil proceedings will likely be aware, a hearing can involve a large number of people all in close proximity to each other while the case is heard. To mitigate against people being in such close proximity to each other and to allow court staff to work remotely the Act will promote the use of audio and video technology so that the hearing need not take place in a physical Court room. This should allow the administration of justice to take place but without undue risk to human health.
Safeguards
One proposed safeguard in the Act is that the emergency powers are to stand for a maximum of two years, although this period can be extended or reduced. The two year period received criticism from some MPs and campaign groups. Despite the huge implications of the Act on society, it was difficult for it to be properly scrutinised under the legislative timetable as the proposed Bill was over 300 pages long. In response to such criticism, the Government amended the Bill so that the necessity of the measures is reviewed every six months.
It is clear from the proposed two-year period that Government considers that the fight against COVID-19 will not be over swiftly and life in Britain may have to adapt for some time.
The Act is also designed so that the emergency powers can come into force at the time they are required for the relevant geographical area in which they are needed. It therefore may be possible that the powers come into force in England at a different time to Northern Ireland.
Failure to comply
In most cases non-compliance will be a criminal offence punishable by a fine issued by a fixed penalty notice.
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