Coronavirus related Legislation:
Briefing for churches in Wales
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.
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.
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.
A number of measures are not included in the Bill but are being implemented in other ways. These are listed following the analysis of the Bill at the foot of this page.
The Coronavirus 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. On April 24, Welsh Government published an outline of how it will take decisions regarding relaxing restrictions. Note that equalities considerations are a core part of the decision-making process (page 7 in the document).
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, including volunteering
- 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.
- Welsh Government has established a COVID-19 Moral and Ethical Guidance Group. The group includes representatives from Cytûn and other faith groups, and health care chaplaincies. On April 12 the Group published Coronavirus: ethical values and principles for healthcare delivery framework. In the light of this the Chief Medical Officer and Chief Nursing Officer for Wales wrote to Health Boards on April 17 about making decisions regarding offering or not offering cardio-pulmonary resuscitation (that is, what are commonly referred to as ‘DNR orders’).
- 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 may be suspended, as may 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. The legislative provisions can be found in Schedule 27 of the Bill. Welsh Government published on April 24 detailed guidance regarding the use of these powers, following consultation with faith communities and others through the Funerals Sub-group of the COVID-19 Moral and Ethical Advisory Group. Section 5 of the guidance contains guidance on how local authorities should in such circumstances ensure that the wishes of the departed, their families and faith communities should be respected as much as possible.
Note that these requirements would come into effect only in an extreme emergency, when a large number of deaths threatened to overwhelm usual arrangements. Until such an emergency exists, the existing guidelines remain in force (or, in the case of a funeral service to be held in England, the UK Government guidelines for England, which include helpful advice regarding very vulnerable people who might wish to attend a funeral.
- 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 had 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.” Local authorities are also arranging provision for children in receipt of free school meals.
On April 20, Welsh Government published Stay Safe, Stay Learning about the operation of the education system in the current time, applying to all schools including schools of a religious character.
- 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.
- Providing powers 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.
A series of announcements culminated in The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 which came into force on March 26 and were subsequently amended. The amended regulations (follow the link above) take effect on April 25.
- The regulations stipulate that the only worship services permitted in a place of worship are funeral services for a safe number of people, subject to 2 metres of social distancing one from another (except for members of the same household). The person (or authority) in charge of the place of worship will specify the maximum number of attendees, who must then be invited (by name) to attend. Only invitees, the funeral director and the worship leader may be present at the funeral. Similar restrictions apply to the use of crematoria and graveyards for funeral services. Welsh Government guidance on funerals can be found by following this link. Ministers and funeral celebrants would also be well advised to read the guidance issued by Welsh Government to local authorities, which contains useful advice on inviting people to attend funerals: https://gov.wales/sites/default/files/publications/2020-04/covid-19-guidance-on-funerals.pdf
Ministers and funeral celebrants working near the Wales/England border who access crematoria or cemeteries in England need to be aware that it is the regulations for England that apply when they cross the border.
- A “minister of religion or worship leader” on his/her own may record or livestream a service from a place of worship with no congregation. Private prayer (other than by the minister or worship leader) is no longer permitted in any place of worship.
- Foodbanks, provision for the homeless and blood donation sessions are permitted in places of worship. From April 7 failure to take all reasonable steps to ensure that social distancing of 2 metres between all individuals (other than members of the same household) in such a setting – and any other workplace – will be an offence in Wales.
- On April 24, Welsh Government guidelines regarding the closure of buildings and locations were updated by including a sentence has been added clarifying that it is not a legal requirement to close graveyards and gardens of remembrance, provided that those who attend are able to maintain 2 metres distance from one another.
- Local authorities or Welsh Government may also require the use of a place of worship for any purpose they consider necessary during the pandemic.
These restrictions may be enforced by the police, the local authority and the Government, who may use reasonable force to enter the premises if necessary.
- 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. On April 21, Welsh Government published detailed guidance on using powers under the Mental Health Act 1983 to release patients in the current circumstances.
- 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 .
- Extending the notice period which a landlord must give to a residential tenant to at least three months. Welsh Government has said that it may extend this period by secondary legislation to six months. 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 and the Contingencies Fund Act 2020 allows the capital of the UK Government’s contingencies fund to be raised from 2% to as high as 50% of annual expenditure. The Bill does not apply this directly to devolved administrations, who do not have the same borrowing powers as the UK Government, so Welsh Government remains dependant on funding being passed on by the UK Government.
The UK Government has announced some flexibility in the arrangements for identity checking for the DBS system. However, at present the remainder of the DBS system remains in place and should continue to be operated by churches.
- A package of improved social security measures and compensation for businesses was announced by the Chancellor of the Exchequer on March 20.
- The Job Retention Scheme (widely known as the furlough scheme) opened for applications on April 20. Following some confusion, the UK Government has confirmed that those who have the employment status of ‘office holder’ can be included in the ‘furlough scheme’ (Job Retention Scheme), provided that they were being paid through a payroll which is part of the PAYE scheme by 19 March 2020. The office holder category includes many (although not all) ordained ministers. Follow the link above and scroll down to the (brief) section on ‘office holders’. The Baptist Union of Great Britain has published a very useful information sheet about this. It should be noted that this guidance reflects the Baptist church order; the information will need to be adapted for other church orders. Employment law is a complex and specialized area, and denominations may well wish to seek specialist advice on this scheme prior to implementing it.
- Changes to the Universal Credit scheme have been introduced.
- A Coronavirus Self-employment Income Support Scheme was announced on March 26.
- Charities are able to access the business support and Job Retention Schemes announced by the Chancellor of the Exchequer (see “business support” in the section above).
- Welsh Government has announced two schemes to help charities which opened to applications on April 14
1. Voluntary services emergency fund (for charities dealing directly with the COVID-19 epidemic and its social effects) – https://wcva.cymru/funding/volunteering-wales-grants-scheme/
2. Third sector resilience fund for Wales (for charities adversely affected by the emergency) – https://wcva.cymru/funding/social-investment-cymru/third-sector-resilience-fund-for-wales/
- WCVA has established a web page with regularly updated information on financial support available for charities in Wales, and churches and church-based charities are encouraged to access this information.