Coronavirus Act analysis

How the Coronavirus Act has helped the Department’s response to the coronavirus (COVID-19) pandemic.

The UK government’s coronavirus action plan, published on 3 March 2020, set out measures to respond to the COVID-19 pandemic that are reasonable, proportionate and based on the latest scientific evidence. Specifically, it detailed:

i. what we knew about the virus and the disease it causes

ii. how we have planned for an infectious disease pandemic

iii. what we planned to do next, depending on the course the coronavirus pandemic takes

iv. the role the public could play in supporting this response, now and in the future.

The plan also envisaged that changes to legislation might be necessary in order to give public bodies across the UK the tools and powers they need to carry out an effective response to this emergency. On 25 March, the Coronavirus Act 2020 received Royal Assent and became law.

The Coronavirus Act gives England, Scotland, Wales and Northern Ireland the powers to respond effectively to the progress of the COVID-19 pandemic. However, a balance has had to be struck between protecting the public's health, and safeguarding individuals' rights; and between acting swiftly to respond to fast moving events, while ensuring accountability and transparency. A two-year life span for this Act has been chosen to ensure that its powers remain available for a reasonable length of time and not beyond.

Some of the measures in the Act deal with easing the burden on frontline health and social care staff, some help staff by enabling them to work without financial penalty, and some support people and communities in taking care of themselves, their families and loved ones, and their wider community. Many of the provisions can be suspended if the scientific advice is that they are not needed and revived again if it says that they are. This is a flexible and proportionate response to a major crisis.

The Coronavirus Act gives all 4 jurisdictions the powers needed to take the right action at the right time to respond effectively to the progress of the pandemic. From a Northern Ireland perspective, the Coronavirus Act is being used to provide relevant Executive departments with the necessary and proportionate legislative powers to allow them to act in a rapid and effective way to deal with this current crisis.

Part 2 of the Act, statutes the UK Government to facilitate transparency over the use of the substantive provisions in Part 1 of the Act. These provisions are therefore, subject to a 6-monthly review and renewal vote in the House of Commons.

To facilitate accountability and transparency, the Department of Health has taken the opportunity to publish a status report on the use of powers in the Act for which it has sole responsibility and to provide the public with the assurances that all effective measures that are in place remain flexible and proportionate in response to this major crisis. Again these provisions can also be suspended, if the scientific advice warrants it, at any time during the life time of the Act. The Department of Health continues to work closely across Governments’ to enhance safety for the public and improve measures to support frontline staff and individuals involved in this vital national response.

Useful links

The Coronavirus Act 2020

The UK Government Coronavirus Act 2020 analysis

UK Government Coronavirus (COVID-19) action plan

Coronavirus Act Status Report (by exception) Department of Health Northern Ireland – September 2020

Description:

Category 1: Provisions that we have not brought into force but which we consider we may still need to, and should therefore remain available;

Category 2: Temporary provisions that were in force, which have been suspended with the possibility to sunset early;

Category 3: Temporary provisions that are in force, which we can allow to sunset according to the current sunset date.

 

 

Section 5:

Justification for recommendation

Category 3:

Emergency registration of and extension of prescribing powers for pharmaceutical chemists: Northern Ireland

 

Section 5 Schedule 4 permits the registrar of the Pharmaceutical Society of Northern Ireland (“the Society”) to temporarily register/annotate pharmacists in Northern Ireland in an emergency situation and this provision was commenced on Royal Assent. Following notification from the Department that an emergency had occurred, a temporary register has been created by the Society on their website.

 

Paragraphs 3 and 6 of Schedule 4 contain a regulation-making power for the Council of the Pharmaceutical Society of Northern Ireland (“the Society”) to disapply additional provisions in the Pharmacy (Northern Ireland) Order 1976, as may be required, during the emergency.  A regulation making power is also included to allow the Council of the Society to re-apply the said disapplied provisions. It is not anticipated that the Society will be looking to use these regulation making powers at the current time. If the Society did wish to make regulations under this power, the Society would write to the Minister setting out the proposals.

The Pharmaceutical Society of Northern Ireland (“the Society”) currently has 265 pharmacists on their temporary register. The Society has advised that the powers enabling the establishment and maintenance of a temporary register remain an important element of their response to enable the profession in NI to meet the challenges of the pandemic. The Society has also advised that until such time as the Minister of Health is confident that the pandemic has passed they would be eager to retain these powers. To support this action, the Society produced a series of FAQs hosted on their website for pharmacists on the temporary register, employers and members of the public. They also wrote to all employers and Superintendent Pharmacists informing them of the temporary register and asking them to enhance their usual employment checks.

Section 10:

Justification for recommendation

Category 2:

Temporary modification of mental health and mental capacity legislation

Sections 10(3) and (4) of the Coronavirus Act 2020 provides amendments to mental health and mental capacity legislation in Northern Ireland. The amendments relax the requirements to compulsory admit and treat a person due to mental illness and temporarily relax the safeguards around deprivation of liberty. This ensures that appropriate care and treatment can be provided even during unprecedented pressures relating to the Coronavirus. The provisions came into force on 2 April 2020.

 

The modifications commenced on 2 April 2020 in relation to the Mental Health (NI) Order 1986 (Part 2, Schedule 10) were suspended from 10 August 2020. The suspension of the provisions in Part 2 of Schedule 10 to the 2020 Coronavirus Act means that they no longer have effect but are capable of being brought back into effect by an order to revive the operation of a provision under section 88(3) of the 2020 Act. The temporary modifications commenced on 2 April 2020 for the Mental Capacity Act (Northern Ireland) 2016 remain in force.

 

 

The Coronavirus Act 2020 (Commencement No.1) Order (Northern Ireland) 2020 (SI 2020/58).

The Coronavirus Act 2020 (Suspension No.1) Order (Northern Ireland) 2020 (SI 2020/141)

suspended the amendments relating to the Mental Health (NI) Order 1986 (Part 2, Schedule 10) from 10 August 2020.

Section 13:

Justification for recommendation

Category 3:

Indemnity for health and social care activity: Northern Ireland

The Indemnity powers came into force from Royal Assent and no further action is required by way of Regulations etc. The powers provide indemnity for [clinical negligence] liabilities in tort arising from health service activities or in NI activities within the system of HSC carried out for the purposes of dealing with, or because of, the coronavirus pandemic, where there is no existing indemnity arrangement in place. This will ensure that those providing such activities have appropriate [clinical negligence] indemnity cover for the work they are required to undertake as part of the Covid-19 response. This is in line with and will complement existing arrangements.

 

Existing and included arrangements allowed interpretative flexibility to be applied, although untested to date.

Clarity of Indemnity arrangements to support the independent sector, ‘Step down’ facilities or ‘Nightingale’ facilities would have assisted with policy development and support

Section 37: 

Justification for recommendation

Category 2:

Temporary closure of educational institutions and childcare premises and Section 38: Temporary continuity: education, training and childcare

 

Powers to require schools, nurseries, etc to close to control or restrict attendance where there is a risk of spreading disease to others. 

 

 

No action has been taken on the childcare sections in the Act. A number of versions of infection control and safe operating guidance for the sector has been issued by DoH since March 2020 which resulted in many settings closing for safety reasons (e.g. we limited childcare access to keyworkers at the beginning of the pandemic). Childcare is now reopening en masse and we have removed the keyworker restriction. Some settings are closing on advice from the PHA following confirmed cases of COVID-19 but we have not had to consider the issue of temporary closure Directions to date. The powers may however, still be required for this purpose, or in the event of a local lockdown or second wave. 

Section 47:

Justification for recommendation

Category 3:

Health and social care pension schemes: suspension of restrictions on return to work: Northern Ireland           

This came into force from Royal Assent and provides the omission of certain regulations that provide for pension abatement and suspension so as to enable individuals already in receipt of their HSC pension to return to work, or increase their working capacity if they have already returned, without facing either suspension or abatement of their pension.

 

 

Temporary provisions will remain in force while deemed necessary to respond to the Covid-19 Pandemic and which will likely remain in force until the current sunset date.

Section 48:

Justification for recommendation

Category 3:

Powers to act for the protection of public health: Northern Ireland

Section 48 amends the Public Health (Northern Ireland) Act 1967, principally to allow the Department of Health NI to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination with coronavirus in Northern Ireland. 

 

 

The primary public health legislation in Northern Ireland is the Public Health Act (Northern Ireland) 1967 (‘the 1967 Act’). The 1967 Act does not provide regulation making powers equivalent to the main provisions of Part 2A of the Public Health (Control of Disease) Act 1984 for England and Wales, or similar legislation in Scotland. Section 48 of the Coronavirus Act 2020 makes temporary modifications to the 1967 Act that enable the Department of Health in Northern Ireland to bring forward proposals for regulations to the Northern Ireland Assembly that allow for additional measures to be introduced to help delay or prevent further transmission of coronavirus disease. The powers were also necessary to ensure that the Department of Health in Northern Ireland could make provision which is consistent with any provision that may be made in the rest of the UK under existing equivalent powers.

 

During the course of the evolving pandemic the situation has changed extremely rapidly. The regulation making powers introduced by Section 48 have enabled the Department of Health in Northern Ireland to be agile and act quickly to introduce legislation to support efforts to prevent or control the spread of coronavirus infection. These have proved to be not only appropriate powers to take but essential powers to have available to the Northern Ireland Executive. The situation continues to change rapidly and the Department of Health in Northern Ireland needs to be able to continue to respond effectively and flexibly to the need for further provision to protect public health. 

 

The Coronavirus Act expires 2 years after commencement When the Coronavirus Act ceases to have effect

 

Section 51:

Justification for recommendation

Category 1:

Powers relating to potentially infectious persons

The provisions apply to England, Scotland, Wales and Northern Ireland, respectively, where the relevant authority for that territory is of the view that there is a serious and imminent threat to public health due to the incidence or transmission of coronavirus. The powers are able to be activated by each UK country separately

The provisions in the Coronavirus Act 2020 conferring powers in relation “potentially infected persons” - Section 51 of and Schedule 21 to the Act - apply separately in each UK country.  If they are required for NI, they need to be switched on locally by a DoH declaration.  The decision to make a declaration would be for the Minister to make based on CMO/DCMO advice in terms that (1) the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health and (2) that the powers conferred by the schedule will be an effective means of delaying or preventing significant further transmission of coronavirus.

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