Coronavirus related Legislation
On March 17 Welsh Government laid and the next day brought into force the Health Protection (Coronavirus) (Wales) Regulations 2020 under the Public Health (Control of Disease) Act 1984. This gives powers to Welsh Ministers and Public Health consultants to require individuals who are suspected of carrying coronavirus, or who arrive from outside Wales, to undergo testing and/or self-isolation or to detain them, or impose any other restrictions on them. To refuse is a criminal offence and anyone refusing can be arrested. Those subject to these restrictions can appeal to a magistrates’ court. These powers are now in force for 28 days, after which they must be confirmed by the National Assembly for Wales to remain in force.
On March 21 the Welsh Government laid and immediately brought into force the The Health Protection (Coronavirus, Business Closure) (Wales) Regulations 2020 also under the Public Health Act 1984. This gives powers to Welsh Ministers to close for a period of six months restaurants, cafes, bars, public houses, cinemas, theatres, nightclubs, bingo halls, concert halls, museums and galleries, casinos, betting shops, spas, massage parlours, indoor skating rinks and indoor swimming pools, gyms and leisure centres. These powers also must be confirmed by the National Assembly within 28 days.
On March 19 the UK Government, acting on behalf of all four governments in the UK, laid the Coronavirus Bill before the UK Parliament. It passed all stages in the House of Commons on March 23 and the Lords on March 24 and 25, gaining Royal Assent that evening as the Coronavirus Act 2020. The National Assembly for Wales passed a Legislative Consent Motion on March 24. The Senedd cannot amend the Bill itself and will have no formal role in the six-monthly renewal, but it will need to agree to secondary legislation relating to devolved areas made under the Bill. For this reason, the Senedd will continue to meet on Tuesdays until Easter, even though the Westminster Parliament will not meet again until April 21.
The Bill documentation shows signs of the pressure under which it has been written, with a number of lacunae in the Explanatory Notes, especially with regards to Wales. The Impact Assessment appears to be the civil servants’ advice to ministers prior to publication, as it includes a number of disadvantages of the proposed legislation and in places even suggests grounds of legal challenge to what is proposed! No Equality Impact Assessment has been published, but a memorandum on the effect on human rights was published on March 20.
It should be noted that a number of measures which have been trailed by UK and Welsh Ministers in recent days are not included in the Bill. Amongst these are:
- Relaxing DBS checking for volunteers.
- The package of improved social security measures and compensation for businesses announced by the Chancellor of the Exchequer on March 20 and the Coronavirus Self-employment Income Support Scheme announced on March 26. As Westminster will not meet until April 21, it is unclear what the legal basis of these packages will be.
It may be that some of these measures can be achieved by voluntary agreement, by secondary legislation or by devolved Welsh legislation. Cytûn will continue to monitor the situation.
The Act is lengthy – 358 pages in all. It aims to provide consistency across all four nations of the UK. The complexity of the three devolved settlements and their interaction is illustrated by this approach, requiring separate clauses for each nation in many matters. However, the Act respects all devolved areas; UK ministers can act under it in devolved areas only with the consent of the Welsh Government (although not necessarily the National Assembly).
Because of the nature of the emergency, different parts of the Act may be started, suspended or re-applied depending on the progress of the epidemic. Therefore, not all the measures will necessarily be in force at the same time.
The following summary focuses on those areas likely to be of direct interest to churches. It makes no claim to completeness and should not be relied upon for legal purposes.
These are the principal provisions of the Act:
Health and social care
- Enabling health and social care workers who have left the registers in the past 2-3 years voluntarily to re-register, and to ensure that their pension rights are not affected by this. In Wales, this also involves allowing them to resume work before they renew their DBS clearance (however, relaxation of DBS requirements for other volunteers is not included in this bill) and also allows GPs to undertake additional duties beyond their usual remit.
- Introducing Emergency Volunteering Leave for 4 weeks in the first 16 weeks, and then for a further 4 weeks in each subsequent 16 week period. This will entitle people to take unpaid leave from their current employment to volunteer in an approved scheme to help with the coronavirus crisis. They will be offered expenses and some recompense (but not their full pay) for each period of volunteering. Details of the schemes and finance will be made under secondary legislation. Volunteering opportunities in Wales can be found on the Volunteering Wales website.
- Providing state-backed indemnity cover for all those who offer help in health and social care under 1 and 2 above and are not already covered by such a scheme.
- Allowing local authorities to reduce the amount of social care they offer to people below the levels required by the individual’s care plan made under the Social Services and Well-Being (Wales) Act 2014, provided the reduction does not infringe the individual’s human rights; and to suspend the regular updating of individual care plans.This is one of the most controversial aspects of the Act, with Lady Tanni Grey-Thompson referring to it in the House of Lords as “a Health and Social Care obliteration Bill”. In the light of such comments, it is important that the UK Government has published an Ethical Framework for Adult Social Care during this period.
Death and bereavement
- Allowing the registration of deaths and still-births to be made remotely rather than in person, and by an undertaker rather than a near relative of the deceased. The requirement for a second doctor’s signature prior to cremation will be suspended, as will the requirement for the doctor who certifies to have seen the patient in person during the 14 days prior to death.
- Suspending the requirement to hold an inquest with a jury when someone dies of coronavirus.
- Extensive powers to control the transportation, storage or disposal of dead bodies or other human remains where the usual procedures are reaching capacity. Vaughan Gething AM, Health & Social Care Minister in Wales, speaking at the National Assembly Health and Social Care Committee on March 19, confirmed that this could involve suspending funerals and/or individual disposal altogether. To fail to comply would be a criminal offence. Churches are urged to draw the attention of these provisions (Schedule 27 of the Bill) to all local clergy and funeral officiants.
- Changing the system for authorising use of the Investigatory Powers Act by the security services.
- Obliging all those involved in the food supply chain to provide information to the governments when required in order to enable them to plan for continuous provision of food.
Giving powers to ministers to oblige nurseries, schools (including private schools), Further Education colleges and Higher Education institutions (including halls of residence) to stay open or to close or to alter the services they provide. These powers have already been invoked prior to the passage of the legislation. As of March 23, schools and nurseries are open only to certain vulnerable children and to the children of workers who are critical to the COVID-19 response. “Religious staff” have been included in this list of critical workers, however it is important to note the qualification to that inclusion (as of all other categories): “Every child who can be safely cared for at home should be and only where there is no safe alternative should provision be made in schools or other settings.” In practice, some local authorities, such as Cardiff, are unable to accommodate all the children covered by the guidance, and have decided to prioritise. Local authorities are also arranging to provide take-away packed lunches for children in receipt of free school meals.
Tax and benefits
- Removing the 4 day waiting period for statutory sick pay (SSP) and reimbursing to employers the costs of paying SSP to those who have been, or are, self-isolating because of coronavirus.
- Allowing the UK Government to reduce (but not increase) National Insurance contribution rates during the 2020-21 tax year by regulation.
- Allowing the UK Government to suspend Border Force operations at ports if there are insufficient staff, and therefore obliging those ports to close.
- Restating the powers already contained in the Health Protection (Coronavirus) (Wales) Regulations 2020 and extending them to additional public health officers (not just public health consultants) and to immigration officers. The powers for Wales are contained in Schedule 20 Part 4 of the Bill.
- Extending the powers already invoked (see above) for UK and Welsh Ministers to prevent or restrict events or gatherings and to close or restrict the use of premises. The powers for Wales are contained in Schedule 21 Part 4 of the Bill. They cover all kinds of events, gatherings and premises without exception, including places of worship and religious gatherings. The Bill allows UK and Welsh Ministers to pay compensation, but it does not oblige them to do so.
On March 23, Welsh Government announced that all caravan parks, campsites, tourist hotspots and beauty spots would be closed to visitors.
On March 25 the UK Government announced strict restrictions on the use of places of worship amongst others. This means that funeral services for close family members (or one friend, if there is no family) are the only permitted worship services. A minister on his/her own may record or livestream a service from a place of worship with no congregation. Private prayer is no longer permitted in any place of worship. Foodbanks, provision for the homeless and blood donation sessions are permitted, subject to the general rules about social distancing, hygiene, etc.
Courts and tribunals
- Allowing courts and tribunals to conduct more hearings remotely, especially where participants may be carrying coronavirus or are appealing against an order made under this legislation. In most cases, the public would be able to watch these proceedings online so that the administration of justice remained transparent.
- Allowing the Mental Health Review Tribunal for Wales to operate with single-member or two-member panels rather than a three person panel, and enabling it to decide cases based on written evidence alone.
- Allowing UK ministers to postpone the Police & Crime Commissioner Elections due on 7 May 2020 (which they have already done to 6 May 2021, which means they will now coincide with the next elections to the Senedd).
- Allowing Welsh Ministers to postpone any local by-elections to not later than 6 May 2021.
- Allowing the Llywydd to postpone any by-elections to constituency seats in the National Assembly to no later than 6 May 2021.
Residential and business tenancies
- Extending the notice period which a landlord must give to a residential tenant to at least three months. Welsh Government has said that it intends to extend this period by secondary legislation to six months at the first opportunity. This will affect all churches which let residential property, including clergy housing which they had been expecting to repossess to house a new minister. It will also affect ministers living in a manse, parsonage, etc. who is on the verge of retirement, who will no longer be able to give swift notice to a tenant in their retirement property. Full details are contained in Schedule 29 of the Act.
Churches are urged to act creatively to respond to this situation, for example by using other empty property they own to accommodate clergy, even if it is not within the correct pastoral area or it does not meet the usual standards; permitting ministers who retire to continue to reside in the manse/parsonage (in fact, churches will have to give such permission for at least six months by law); ask to use residential property owned by ministers or church members which would normally be used as holiday homes or let out. [There is already a bill before the National Assembly to make this change permanent in Wales, and Cytûn is seeking a meeting with Welsh Government to explain the concerns of churches about such a permanent change].
2. Preventing landlords of business properties from evicting a tenant for failure to pay rent due to the emergency, until at least 30 June 2020. This period can be extended by secondary legislation. This will affect all churches who let out property on business tenancies or who rent such premises for their activities.
- The Bill gives unlimited authority to UK ministers to incur expenditure with regard to coronavirus measures. The Bill does not seem to apply this to devolved administrations, who do not have the same borrowing powers as the UK Government.
Briefing Paper March 18
On March 17, the UK Government, on behalf of all four governments in the UK, published a summary of the emergency legislation which will be published in full on March 19. The summary can be read here: https://www.gov.uk/government/publications/coronavirus-bill-what-it-will-do/what-the-coronavirus-bill-will-do. Churches and faith groups will be particularly interested in the new arrangements regarding the dead and funerals. Julie James, Housing and Local Government Minister in the Welsh Government, said in the Senedd yesterday that the Legislation will also include some relaxation of Safeguarding measures, e.g. by permitting those who have applied for a DBS check to begin working with vulnerable people while their DBS application is beng processed so long as they are supervised with someone who has DBS verification. We await details, and a full briefing paper will be published by Cytûn either March 19 or March 20. The Wales Council for Voluntary Action (WCVA) is meeting Welsh Government on March 18, and there will be a briefing for members of the Third Sector Partnership Council (including Cytûn on behalf of faith groups) on March 20.
Most churches and faith groups have now announced the cessation of worship and other activities in the light of guidance from the two governments. UK Government guidance can be read here: https://www.gov.uk/government/publications/covid-19-guidance-on-social-distancing-and-for-vulnerable-people/guidance-on-social-distancing-for-everyone-in-the-uk-and-protecting-older-people-and-vulnerable-adults and Welsh Government advice here: https://gov.wales/coronavirus-covid-19-advice Although the advice is worded differently, its import is the same. Although neither refers specifically to religious activities, the UK Secretary of State for Health, Matthew Hancock, said this in the House of Commons on Monday evening: We have taken advice on how to respond to the crisis, including from our ethics committee, which includes representatives of the major religious faiths. It is true that we include religious groups in our advice about social contact. We have seen from elsewhere in the world how sometimes it is through religious gatherings that the virus can spread so, with the deepest regret and the heaviest of heart, we include faith groups and gatherings of faith within the advice. https://hansard.parliament.uk/Commons/2020-03-16/debates/235689EC-0A18-4488-BFCF-9F012A1A0C1B/Covid-19?highlight=religious#contribution-CFCDD9D0-E31F-427F-8588-7E5251E27D65
Links to guidance from the principal religious groups in the UK can be seen here: https://www.interfaith.org.uk/news/faith-communities-and-coronavirus
The Church in Wales has legal responsibilities regarding baptisms, weddings and funerals that are not applicable to other denominations and religious groups, and so in case of queries it would be good for ministers and leaders of all denominations and communities to be aware of the Church in Wales guidance, which can be read in full here: https://www.churchinwales.org.uk/en/clergy-and-members/coronavirus-covid-19-guidance/
With regard to other denominations headquartered in Wales, guidance from the Union of Welsh Independents can be read here: http://annibynwyr.cymru/ (click on ‘Latest news’); Presbyterian Church of Wales: https://www.ebcpcw.cymru/en/coronavirus/; and the Baptist Union of Wales here: http://www.buw.org.uk/170320-advice-coronavirus-covid-19/ These links are correct as at 11.00 on March 18; there may be updated guidance in the coming days.
UK Government announced on March 17 an additional package of support for businesses, and Welsh Government has also announced some measures. A handy guide to all these is available on the website of the Office of the Secretary of State for Wales: https://www.gov.uk/guidance/coronavirus-covid-19-information-for-individuals-and-businesses-in-wales There is no specific reference in these announcements to charities (although it could be worth charitable businesses, such as community cafés run by religious groups, enquiring). Further announcements are expected in coming days.