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Coronavirus Act renewal: Into the sunset?

18 Oct 2021
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© Glen Carrie

How does the Coronavirus Act renewal process which is due to take place on 19 October work? How important is the Act in the overall legislative response to the pandemic? And what might MPs take from the process for the delegation of powers in future Acts?

Dr Brigid Fowler, Senior Researcher, Hansard Society
,
Senior Researcher, Hansard Society

Dr Brigid Fowler

Dr Brigid Fowler
Senior Researcher, Hansard Society

Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London.

After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions.

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The Coronavirus Act 2020 is divided into ‘temporary’ and ‘permanent’ provisions. By default, most provisions of the Act are ’temporary’. Only those listed in section 89(2) are ‘permanent’.

In the default arrangements, the ‘temporary’ provisions of the Act expire in March 2022, when the Act reaches its ‘sunset’ (two years after it was passed). The ‘permanent’ provisions do not expire.

However, the government may vary the expiry dates for any and all provisions of the Act, by making Regulations under section 90 – either to bring the dates forward or to push them back (the latter by up to six months at a time). Under section 93, Regulations to bring expiry dates forward are subject to the ‘draft affirmative’ procedure (that is, they may not be made unless and until they have received parliamentary approval). Regulations to push expiry dates back are subject to the ‘made affirmative’ procedure: that is, they require parliamentary approval, but only after they have been made (signed) into law by the Minister.

Some provisions of the Act fall within devolved competence (because, at the time, this was the quickest way of giving relevant powers to the devolved administrations which the UK government already had but they did not). The UK government may vary the expiry dates of such provisions only with the consent of the relevant devolved administration(s).

There is also a separate power, under section 88, to suspend provisions of the Act (rather than expire them permanently) and revive them, potentially multiple times.

The Coronavirus Act operates on the basis of six-month time periods, counting from the date on which it received Royal Assent (25 March 2020).

At the end of each six-month period, if the government wants the temporary provisions of the Act to remain law, it must move a motion in the House of Commons under section 98 ‘That the temporary provisions of the Coronavirus Act should not yet expire’.

If the House of Commons agrees this motion, the temporary provisions remain on the statute book.

If the House of Commons were to vote against this motion – that is, if the House were to decide that the temporary provisions should expire – then section 98(1) would require the government to make Regulations under section 90 to expire all the non-devolved temporary provisions, no later than 21 days after the House of Commons vote. Ministers could make Regulations in fulfilment of a House of Commons decision against renewal without further parliamentary involvement.

This six-month renewal process was a concession by the government during passage of the Coronavirus Bill. Some MPs did not wish to grant the government the powers in the Bill for the full proposed two years and sought an earlier sunset; the government did not want potentially to have to re-legislate any more quickly, so introduced the six-month quasi-sunset and renewal provision as a compromise.

In line with the six-monthly timetable, the government moved the section 98 motion against expiry of the temporary provisions of the Coronavirus Act on 30 September 2020 and again on 25 March 2021. On both occasions, the House of Commons voted in favour of the motion (that is, in favour of retaining the temporary provisions) – by 330-24 in September 2020, and by 484-76 in March 2021.

Debate on the renewal motion is capped at 90 minutes (because it is a proceeding under an Act, under Standing Order No. 16). For the second six-monthly review in March 2021, the House agreed a government business motion which rolled consideration of the Coronavirus Act renewal motion together in a single, three-and-a-half-hour debate with three further Coronavirus-related items (a set of Coronavirus restrictions Regulations, the statutory one-year report on the Coronavirus Act, and a motion to prolong Coronavirus-related procedures in the House).

In principle, the Coronavirus Act renewal motion is amendable. However, on both of the first two occasions on which the motion came before the House, the Speaker declined to select any amendment. On the first occasion, in September 2020, the Speaker told the House that he had:

concluded, on the basis of advice that I have received, that any amendment to the motion before the House risks giving rise to uncertainty about the decision the House has taken. This then risks decisions that are rightly the responsibility of Parliament ultimately being determined by the courts. Lack of clarity in such important matters risks undermining the rule of law.

This position does not appear likely to change. When the House is asked to decide for the third time on the Coronavirus Act renewal motion, therefore, it will again face an up-or-down decision.

The motion to renew the temporary provisions of the Coronavirus Act applies only to those temporary provisions of the Act that remain on the statute book at the time.

Legally, the statutory six-monthly renewal process under section 98 is separate from the government’s standing ability to expire provisions of the Act ‘voluntarily’ at any time, under section 90.

Politically, the government has in effect linked the voluntary and statutory processes: it has voluntarily expired some provisions during the life of the Act partly as a way of reassuring MPs that it is not retaining provisions that it does not need, and thereby of seeking to encourage them to agree to renew those that it says it does still require.

This process may have been encouraged because, under section 97, the Act requires the government to publish a report every two months on the status of the substantive non-devolved provisions of the Act, together with a statement that the Secretary of State regards this status as “appropriate”. Compared to the situation with most Acts of Parliament, this reporting process – coinciding with the House’s renewal decision – may at least make it easier for MPs to identify provisions that are not being used, and harder politically for the government to retain them.

As of 18 October 2021, the government has already expired 13 provisions of the Coronavirus Act. Most notably, at the point of the Act’s one-year review in March 2021, the government identified twelve temporary provisions which it was prepared to expire (nine of which were devolved). Once the House of Commons had agreed the renewal motion on 25 March, the government brought forward a single set of Regulations to do so. As the Regulations were subject to the ‘draft affirmative’ procedure under section 93, they became law only in July, after they had been approved by both Houses.

According to the government’s most recent two-monthly report, published in September 2021, there are 27 temporary non-devolved provisions of the Coronavirus Act still extant. As part of its ‘Covid Autumn and Winter Plan’ and ahead of the current 18-month renewal process, the government has identified seven provisions and parts of an eighth that it proposes to expire. The government has said that, if the House of Commons approves the renewal motion on 19 October, it will bring forward Regulations to expire these provisions, in a repetition of the process that took place in the Spring.

The main process-related difference between the Spring occasion and the present one is that the present renewal cycle is due to be the last. Unless they are ‘expired’ earlier, all temporary provisions of the Coronavirus Act will expire at the end of 24 March 2022, when the Act reaches its two-year sunset. If the government is content for them to do so, there will therefore be no need for it to bring forward a fourth renewal motion at that point.

However, the government has said that in the Spring it “will review this legislation and the other remaining regulations and measures and decide whether any need to remain in place”.

In any case, the Coronavirus Act and its content will not necessarily disappear entirely. For one thing, its ‘permanent’ provisions (as listed in section 89(2)) are exempt from the two-year sunset. The government could also exercise its power under section 90(2) to defer the expiry of individual provisions, for up to six months at a time.

The government also has the option of ‘migrating’ provisions of the Coronavirus Act into other legislation, both primary legislation and delegated. This is already taking place: the Judicial Review and Courts Bill and the Police, Crime, Sentencing and Courts Bill currently before Parliament both contain provisions from the Coronavirus Act.

The migration of Coronavirus Act provisions into other legislation could be a feature of both primary and delegated legislation in coming months.

The Coronavirus Act has totemic status and a high public profile. For example, as of 18 October, a petition to repeal the Act has 30,580 signatures, and a separate one calling for a referendum on the issue 65,306.

However, according to data generated by the Hansard Society’s Statutory Instrument Tracker® and displayed on our Coronavirus Statutory Instruments Dashboard, Statutory Instruments under the Coronavirus Act account for only 26 of the total 513 Coronavirus-related SIs that have been laid before the UK Parliament (5%). A total of 134 Acts of Parliaments have been used to make and lay Coronavirus-related SIs.

By far the most important such Act has been the Public Health (Control of Disease) Act 1984. This grants Ministers the powers that they have used to make the Regulations requiring ‘lockdowns’, face coverings, self-isolation, and travel-related testing and hotel quarantine. The Regulations under the Act which require self-isolation, and which enable targeted local public health interventions by local authorities, have already been extended to March 2022. The government has indicated that, if it were to introduce mandatory vaccination certification, it would do so through further Regulations under the 1984 Act – to which, it says, “no changes … are planned”. Meanwhile, the Regulations coming into force in November 2021 that require workers in care homes to be fully vaccinated – the first explicit provision in English law making a person’s Covid-19 vaccination status a characteristic affecting eligibility to work – were made under the Health and Social Care Act 2008, not the Coronavirus Act.

None of the Coronavirus-related laws affecting the widest swathes of the public or having the most personally intrusive effects have been made under the Coronavirus Act. Whatever the fate of that Act, Ministers will retain the ability to make far-reaching delegated legislation in connection with the pandemic, owing to the existence of relevant powers in many other Acts of Parliament.

The Coronavirus Act six-monthly renewal process has been widely criticised – both inside and outside Parliament – as giving MPsinadequate information about, and control over, the measures the Act contains.

These criticisms are well-founded. However, they primarily concern the way in which the renewal process was designed (for example, its all-or-nothing nature), and the way in which it interacts with House of Commons procedures, rather than the rationale for such a process in principle. Compared with other Acts of Parliament, what is striking about the Coronavirus Act renewal process is that MPs have some say over the perpetuation of powers at all, however unsatisfactorily. While it arose in unique circumstances, the Coronavirus Act is far from the only Act which grants far-reaching delegated powers to Ministers and which passed through Parliament quickly. As is shown by the breakdown of parent Acts used to make Coronavirus-related delegated legislation, such powers in non-sunsetted Acts may be used many years after they were granted. The Coronavirus Act renewal process shows that MPs can sometimes secure a greater degree of control over delegated powers in an Act of Parliament if they mobilise during its passage. The flaws in the Coronavirus Act renewal process could be addressed.

The use of sunsetting for powers in the Coronavirus Act was appropriate for emergency legislation, but it might also be a solution for some broad powers in some pieces of primary legislation more widely.

The research for this post was supported by the Legal Education Foundation as part of the Hansard Society’s Review of Delegated Legislation

Fowler, B., Coronavirus Act renewal: Into the sunset?, (London: Hansard Society), 18 October 2021