Coronavirus Act 2020

The Coronavirus Bill has received Royal Assent in near record time for such a wide ranging piece of legislation. The Act gives effect to the government’s action plan for responding to the COVID-19 outbreak and is aimed at facilitating the nation’s response in a number of key areas, including:

• increasing the available health and social care workforce
• easing the burden on frontline staff
• containing and slowing the virus
• supporting people

The Act has wide ranging legal and commercial consequences for businesses and the population at large. A number of provisions would not be out of place, and indeed may go further than would be anticipated, during wartime.

Restrictions on gatherings and closure powers

The Act will increase the Government’s powers to prohibit or restrict events and gatherings, and to close premises, for public health reasons, beyond those already contained in the Public Health (Control of Disease) Act 1984 (as amended by the Health Protection Act 2008) and equivalent legislation for Scotland and Northern Ireland. Depending on the precise terms of cover, the exercise of these powers may trigger coverage for claims under insurance policies (which were not previously covered).

Section 52 and Schedule 22 allow the Secretary of State or the devolved administrations to declare a ‘public health response period’ (PHRP). During a PHRP, the appropriate minister will have the power to issue directions prohibiting or imposing restrictions on a specified event or gathering, or on events or gatherings of a general description. They will also be able to issue directions to order premises to be closed or to restrict entry. Premises is defined as any place and includes aircraft, trains, ships, vehicles, tents and offshore installations. Failure to comply with a direction will be an offence and liable to a fine. Where the offence is committed by a corporate entity, a director or officer who is negligent or consents or connives in the offence may be prosecuted.

Court proceedings

The Act makes provision for the live screening of ‘virtual’ hearings (either wholly video or wholly audio) in criminal courts, the intention being that more court hearings can take place by phone or video. Sections 51 to 55 of the Act make provision for greater use of audio and video links by participants in criminal hearings. No similar provision is made for civil courts, largely because the Civil Procedure Rules already give judges a very wide discretion to use these tools. In schedule 25, the Act also includes provisions for the public participation of such court proceedings (both criminal and civil) consistent with the open justice principle.

Healthcare

The Act provides for state indemnity cover for medical professionals in respect of clinical negligence suffered by individuals providing services connected to care, treatment or diagnostic services. This will apply to both the diagnosis, care and treatment (DCT) of actual or suspected coronavirus sufferers, or DCT outside the professional’s normal area of work that is being provided as a result of the greater staffing demands on the NHS during the outbreak.

This cover will not apply “where arrangements are already in place (whether under an insurance policy or otherwise) for the person to be indemnified in respect of the liability”.

In addition, the Act modifies certain duties on the NHS and local authorities, eg care plans when patients are discharged from hospital.

Employment

Emergency Volunteers Leave (“EVL”)

Under the Act, employees and workers will be able to take EVL in blocks of two, three or four weeks’ statutory unpaid leave to support the healthcare system. There will be a fund set up to compensate for loss of earnings and expenses incurred (at a flat rate) for those who volunteer with an appropriate authority. There are certain rights and protections for employees and workers who take EVL, including the maintenance of the terms and conditions of their employment during any period of leave and protection from any detriment to their employment because of their taking the leave.

Statutory Sick Pay (“SSP”)

SSP will be paid from day one of absence due to the coronavirus, rather than from day three as currently. Employers with fewer than 250 employees will be able to reclaim SSP paid for sickness absences that relate to coronavirus. These provisions will have retrospective effect from 13 March 2020 (these changes are in addition to the changes set out in separate statutory regulations which provide that individuals should be covered by SSP where they are self-isolating with coronavirus symptoms or because a member of their household is showing symptoms, even if they themselves do not).

Food and Retail

The legislation provides sweeping new powers to minimise disruption and safeguard key industries, including supporting the food industry to maintain supplies. The measures build on existing voluntary cooperation between industry and regulators by requiring industry to provide information about food supplies in the event that industry partners don’t cooperate during the period of disruption.

Firstly, the new provisions apply to the food supply chain and enable information relating to the food supply chain to be obtained.

There are some definitions of the food chain, and in summary this includes:

those supplying seeds, stock, equipment, feed, fertiliser, pesticides or similar items to producers for use in agriculture, fishing or aquaculture;

persons providing goods or services to producers or intermediaries, where the goods or services relate to the safety or quality of food or drink, or the welfare of animals; and

bodies representing persons in or closely connected with a food supply chain by virtue of these provisions.

Information can be requested when the authority considers that it is necessary (on its own or when put together with other information) for the purpose of establishing whether the whole or part of a food supply chain is being disrupted or is at risk of disruption, or the nature of the potential disruption. This information gathering already takes place, whereas the new powers can be used where the information has been requested previously and remains outstanding.

The purpose is for mitigating or eliminating the effects of disruption to a food supply chain, or the prevention or reduction in the risk of future disruption to a food supply chain. A person who holds information which has at any time been provided may disclose it to another person under certain circumstances and it may be that it needs to be anonymised. The new laws specifically state that a disclosure made in accordance with the CV Act does not breach any obligation of confidence owed by the person making the disclosure or any other restriction on the disclosure of information. Personal data may not be used or disclosed under this section if the use or disclosure would contravene the data protection legislation, however in determining whether it would do so, the surrounding circumstances such as the mitigation of effects of disruption on the supply chain are also relevant.

If information requested by DEFRA under these provisions is not supplied then the authority will assess on the balance of probabilities whether they have failed to comply with the request. This will lead to financial penalties calculated up to a maximum of 1% of turnover.

Although the collaborative approach undertaken by the food supply chain in responding to the pandemic has means that the shift from a voluntary approach to compulsion is stated to be a last resort.

It remains to be seen whether the well intentioned new CV Act inadvertently heralds a move away from the established collaborative approach of food business operators in the supply chain to a much more interventionist approach - which as time goes on may be much harder to undo.

Real Estate

The Act contains provisions impacting both residential and commercial properties, and the planning process, in England and Wales.

Residential property

Under the Act, any notice served in advance of possession proceedings for a Rent Act protected tenancy, a secure tenancy, or an assured tenancy must now have a three-month notice period. These provisions will last until 30 September 2020. The provisions are not retrospective and the notice period may be extended up to six months by the Minister.

Commercial property

In relation to business premises, there is a moratorium on the forfeiture of business leases until 30 June 2020 or a later date to be specified by the Secretary of State. Under the moratorium, landlords will not be able to forfeit business leases if their tenants fail to pay the rent. The new provisions will delay the right for the landlord to forfeit and – as things stand at the moment - landlords will be able to forfeit or recover rent when the moratorium ends. On the current draft wording, other methods of enforcement for non-payment of rent do not appear to be affected, but this is a rapidly changing position.

Further analysis on the Act’s requirements in regard to providing facilities, premises and services is available in our dedicated Law Now article here.

Planning

Section 78 of the Act allows for regulations to be made to allow persons to attend, speak at, vote in and otherwise participate in, local authority meetings without being physically present. The Act also allows for the regulations to change the requirement to hold local authority meetings. The detail will be contained in the relevant secondary legislation which is awaited. Local planning authorities will be unable to change their committee meeting procedures until the secondary legislation comes forward. It is hoped that local planning authorities will use the flexibility proposed by the Government to conduct planning committee meetings remotely rather than cancelling them altogether.

Commencement and expiry

Various parts of the Act come into force immediately or as appointed by a Minister. Under section 89, most parts of the Act, the temporary provisions, are scheduled to expire within two years. However, under section 98, after six months a Minister of the Crown “so far as practicable” must seek a motion from the House of Commons stating that the temporary provisions of the Act shall not expire and if that motion is rejected, the temporary provisions must expire within 21 days.