Picking up the Pieces of Coronavirus Legislation & Regulation

General Legislation

Enacted on 25 March, and largely effective with immediate force, the Coronavirus Act 2020 was the UK Government’s initial legislative response to Covid-19. In accordance with the seismic nature of prevailing circumstances, it is a highly unusual piece of emergency legislation. If law were a house, and Covid-19 an impending earthquake, then this Act is an attempt to shore up its foundations and to rearrange its fixtures and fittings in order to withstand the inevitable shockwave.

For lawyers and advisors, however, the earthquake might as well have already struck. If you thought you knew the law in your particular area of practice — think again. Now, you need to check it has not been taken down off the shelf, rewritten, then re-shelved elsewhere in the house (possibly in the attic/cellar).

Moreover, the Coronavirus Act 2020 has sired many offspring (subsequent statutes and statutory instruments). And, it shall likely continue to proliferate.

In terms of jurisdictional extent, it is actually a supra-UK statute. Section 101 makes provision for its extension to the Isle of Man. The Isle of Man is, of course, a British Crown dependency, but also a sovereign polity and not part of the UK per se, therefore not usually subject to UK legislation except for external affairs and defence. Its inclusion here can be taken as validation of erstwhile description of the UK’s response as being comparable with wartime measures.

However, obviously the Act’s overwhelming primary focus is the UK’s constituent nations of Scotland, England, Wales and Northern Ireland. Broadly speaking, its purposes are:

1. Mobilisation of health professionals essential for responding to the pandemic;
2. Relaxation of rules relating to certain ancillary services in order to ensure continuity of their essential elements, e.g. care practitioners, registrars, funeral directors, courts and tribunals, and local authority councils;
3. New rules relating to certain other ancillary services, i.e. food suppliers;
4. Demobilisation of the rest of society, e.g. closure of schools, suspension of elections, and ‘lockdown’;
5. Adjustments to rules on tax and social security.

As said, 25 March is the default commencement date (in terms of s.87). However, there are two standalone commencement orders relevant to Scotland, being:

• Coronavirus Act 2020 (Commencement No. 1) Regulations 2020: The only provision relevant to Scotland is reg.2(a), which applies s.18(2) and Part 2 of Sch.13 to the Act with immediate effect, i.e. as of 25 March, in respect of registration of deaths.
• Coronavirus Act 2020 (Commencement No. 1) (Scotland) Regulations 2020: This applies ss.16 & 17 as of 5 April in respect of local authority duty to assess needs.

The Act sets to its purposes by fixing its crosshairs on a panorama of other statutes or statutory instruments, and by a mix of actual direct amendment, on one hand, or, on the other, delegation, e.g. to the Secretary of State, or, in Scotland’s case, to the Scottish Ministers (i.e. the Scottish Government). In a sense, therefore, where the Act delegates, it operates as a kind of strategic plan for the UK as a whole, while acknowledging that certain measures are contingent in nature, and each constituent nation may also wish to adapt its own measures, and the timing of its measures, in accordance with its own particular circumstances.

The Act strikes at certain services that are nowadays devolved to the legislatures of the constituent nations. Therefore, obviously not all its provisions apply in Scotland. Usually, where a provision applies in only one (or more than one but less than all) of the constituent nations, this is clearly stated. However, this is not always the case, e.g. references to police powers that actually only apply in England and Wales, such as the Police & Criminal Evidence Act 1984. Therefore, where the Act refers to amending another statute without specifying jurisdictional extent, it may be necessary to look to the earlier statute to clarify this.

In terms of devolved legislative competence, the Act largely throws the devolution settlement out of the window of aforementioned quake-blighted house. By delegation to the Scottish Ministers, for example in respect of the criminal offences associated with lockdown (principally, s.51 (Sch.21) and s.52 (Sch.22)), it bypasses the legislative competence of the Scottish Parliament (s.29 (Sch.5) of the Scotland Act 1998, as amended), and endows Nicola Sturgeon’s Government with the quasi-dictatorial power to impose pre-packaged UK-wide criminal sanctions on the Scottish populace absent any requirement that these be debated at Holyrood. As for potential challenge to the legitimacy of some such provisions in terms of interference with the quasi-constitutional nature of the Scotland Acts — well, that’s a question for another day.

Meanwhile, provisions of note include, as said, s.51 (Sch.21) and s.52 (Sch.22).

Whereas s.51 deals with persons suspected of already being infected with Covid-19, s.52 is the central lockdown provision that affects everyone in Scotland (and elsewhere in our Green and Pleasant Land), being entitled ‘Powers to Issue Directions Relating to Events, Gatherings and Premises’. For Scotland, this is given greater specificity by:—

• Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020, (No.103);
• Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment Regulations 2020 (No.106);
• Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 2) Regulations 2020 (No.126);
• Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 3) Regulations 2020 (No.164).

Regulation 5 of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 is entitled ‘Restrictions on Movement’, and reg.5(1) is the provision that keeps us all at home, while reg.8 is what criminalises our leaving home. This is subject to the defence of ‘reasonable excuse’ (s.8(4)), of which a non-exhaustive list of examples is stated (s.8(5)), including:—

• Buying food; exercising; seeking medical aid; donating blood; travelling to work (where not possible to work from home); attending the funeral of a close family member; fulfilling a legal obligation such as adhering to a court citation; or escaping harm (an actual earthquake ?).

In addition, Holyrood has also enacted the Coronavirus (Scotland) Act 2020, and the Coronavirus (Scotland) (No.2) Act 2020. Most of their hard graft is done by their Schedules. The ‘No.1’ Act is the one that, for example:

• Suspends evictions (Sch.1); extends moritoriums on diligence (Sch.2); makes some adjustments to the justice system (Sch.4); and deals with liquor licensing (Sch.5) (pubs, by now, already having been shut down under the provisions of the foregoing UK statute and its subordinate regulations).

The adjustments to the justice system are designed to allow our courts and tribunals to attempt to trundle on by means of relaxation of requirements for personal attendance at hearings, or for submission of documents (which may now be competent electronically). Adjustments to criminal justice are crucial, particularly relating to time limits for the various stages in proceedings under the Criminal Procedure (Scotland) Act 1995. Significantly, the prohibition against hearsay evidence is now also subject to relaxation.

The No.2 Act contains a large Sch.1, entitled ‘Protection of the Individual’, which has implications for:—

• Landlord/tenant law; student tenancies; social security; bankruptcy; mental health; care homes; and the solemnization of marriages; etc.

Sch.2 makes further adjustments to the justice system, again particularly in respect of criminal justice, and again relating to time limits. It also, effectively, replaces intimation on the Walls of Court with publication on the Scottish Courts & Tribunals Service website.

Sch.4 contains a miscellany, e.g. the UEFA football championship, listed buildings, the registers of inhibitions and judgments, and freedom of information, etc. A potentially important change that is buried away in here (and might actually be more apt under Sch.2 on justice) is Part 7 of Sch.4, relating to ‘Execution of Documents’, which dispenses with the requirement that solicitor/notary and deponent be physically present at the same place for the purpose of procuring affidavits (and, of course, affidavits themselves may become much more important where witnesses are locked down or self-isolating).

Children of the Act

In addition to the foregoing general legislation, there exists a veritable plethora of other amending statutory instruments relevant to Scotland in respect of a broad range of areas of practice. It is beyond the scope of this article to treat these in any significant detail. However, for current purposes, suffice it to say that practitioners, in whatever area, should be aware of potential changes, and, before dispensing advice, should double-check against relevant regulations.

Given the emergency nature of the Coronavirus legislation, it is subject to review and expiry. For example, the core UK Coronavirus Act has a default sunset date of 25 March 2022, whereas both the Nos.1 & 2 Scotland Acts are due to expire on the much more modest (and optimistic) date of 30 September 2020.

The author has attempted to arrange the additional regulations in a somewhat thematic way, as follows. As said, unfortunately, jurisdictional extent is not always clear, thus the author has also erred on the side of caution. Accordingly, the following should be treated as ‘may apply in Scotland’ (and in this regard, and suggestions for improvement are welcome, be they for addition, deletion, or qualification):—

General Prohibition of Movement (Lockdown)

• Health Protection (Coronavirus) (International Travel) (Scotland) Regulations 2020, No.169
• Health Protection (Coronavirus, Public Health Information for Passengers Travelling to Scotland) Regulations 2020, No.170

Criminal Justice

• Criminal Justice (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020, No.137
• Release of Prisoners (Coronavirus) (Scotland) Regulations 2020, No.138
• Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007 (Fees) (Coronavirus) Regulations 2020, No.163
• Coronavirus (Retention of Fingerprints and DNA Profiles in the Interests of National Security) Regulations 2020, No.391
• Prison and Young Offender Institution (Coronavirus) (Amendment) Rules 2020, No.400
• Offender Management Act 2007 (Coronavirus) (Approved Premises) (Amendment) Regulations 2020, No.401
• Electronic Monitoring (Responsible Persons) (Coronavirus) (Amendment) Order 2020, No.418
• Misuse of Drugs (Coronavirus) (Amendments Relating to the Supply of Controlled Drugs During a Pandemic etc.) Regulations 2020, No.468
• Prison and Young Offender Institution (Coronavirus) (Amendment) (No. 2) Rules 2020, No.508

Education

• Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020, No.128
• Education (Deemed Decisions) (Coronavirus) (Scotland) Amendment Regulations 2020, No.149
• Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020, No.471
• Education (Independent School Standards) (Coronavirus) (Amendment) Regulations 2020, No.542

Employment & Statutory Sick Pay

• Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020, No.287
• Statutory Sick Pay (General) (Coronavirus Amendment) (No. 2) Regulations 2020, No.304
• Working Time (Coronavirus) (Amendment) Regulations 2020, No.365
• Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020, No.374
• Employment Appeal Tribunal (Coronavirus) (Amendment) Rules 2020, No.415
• Tribunal Procedure (Coronavirus) (Amendment) Rules 2020, No.416
• Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020, No.427
• Maternity Allowance, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay (Normal Weekly Earnings etc.) (Coronavirus) (Amendment) Regulations 2020, No.450
• Statutory Sick Pay (Coronavirus) (Funding of Employers’ Liabilities) Regulations 2020, No.512
• Statutory Sick Pay (General) (Coronavirus Amendment) (No. 4) Regulations 2020, No.539

Mental Health

• Adults with Incapacity (Ethics Committee) (Scotland) (Coronavirus) Amendment Regulations 2020, No.151

Planning

• Town and Country Planning (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020, No.124
• Town and Country Planning (General Permitted Development) (Coronavirus) (Scotland) Amendment Order 2020, No.129

Social Security (see also Employment, above)

• Carer’s Allowance (Coronavirus) (Breaks in Care) (Scotland) Regulations 2020, No.117
• Employment and Support Allowance and Universal Credit (Coronavirus Disease) Regulations 2020, No.289
• Social Security (Coronavirus) (Further Measures) Regulations 2020, No.371
• Social Security (Coronavirus) (Further Measures) Amendment Regulations 2020, No.397
• Social Fund Funeral Expenses Payment (Coronavirus) (Amendment) Regulations 2020, No.405
• Social Security (Coronavirus) (Prisoners) Regulations 2020, No.409
• State Pension Credit (Coronavirus) (Electronic Claims) (Amendment) Regulations 2020, No.456
• Universal Credit (Coronavirus) (Self-employed Claimants and Reclaims) (Amendment) Regulations 2020, No.522
• Social Security Contributions (Disregarded Payments) (Coronavirus) Regulations 2020, No.525
• Tax Credits (Coronavirus, Miscellaneous Amendments) Regulations 2020, No.534

Tax & Savings

• Non-Domestic Rates (Coronavirus Reliefs) (Scotland) Regulations 2020, No.101
• Council Tax Reduction (Scotland) Amendment (No. 3) (Coronavirus) Regulations 2020, No.108
• Non-Domestic Rating (Transitional Protection Payments and Rates Retention) (Coronavirus) (Amendment) Regulations 2020, No.449
• Value Added Tax (Zero Rate for Personal Protective Equipment) (Coronavirus) Order 2020, No.458
• Value Added Tax (Extension of Zero-Rating to Electronically Supplied Books etc.) (Coronavirus) Order 2020, No.459
• Individual Savings Account (Amendment No. 3) (Coronavirus) Regulations 2020, No.506
• Income Tax (Exemption for Coronavirus Related Home Office Expenses) Regulations 2020, No.524

Trade, Industry, Agriculture & Technology

• Electricity Works (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020, No.123
• Marine Works and Marine Licensing (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020, No.157
• Competition Act 1998 (Groceries) (Coronavirus) (Public Policy Exclusion) Order 2020, No.369
• Feed-in Tariffs (Amendment) (Coronavirus) Order 2020, No.375
• Accounts and Audit (Coronavirus) (Amendment) Regulations 2020, No.404
• Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) (Coronavirus) (Amendment) Regulations 2020, No.448
• Financial Services and Markets Act 2000 (Regulated Activities) (Coronavirus) (Amendment) Order 2020, No.480
• Competition Act 1998 (Dairy Produce) (Coronavirus) (Public Policy Exclusion) Order 2020, No.481
• Taking Control of Goods and Certification of Enforcement Agents (Amendment) (Coronavirus) Regulations 2020, No.451
• Common Agricultural Policy (Control and Enforcement, Cross-Compliance, Scrutiny of Transactions and Appeals) (Coronavirus) (Amendment) (England) Regulations 2020, No.477
• Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) (Coronavirus) Regulations 2020, No.566

Miscellany

• Motor Vehicles (Tests) (Amendment) (Coronavirus) Regulations 2020, No.382
• Safeguarding Vulnerable Groups Act 2006 (Regulated Activities) (Coronavirus) Order 2020, No.433
• Adoption and Children (Coronavirus) (Amendment) Regulations 2020, No.445
• National Health Service (Quality Accounts) (Amendment) (Coronavirus) Regulations 2020, No.466
• Registration of Births and Deaths (Coronavirus) (Amendment) Regulations 2020, No.577