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The Impact of the Coronavirus Act 2020 on Public Services

27 March 2020
Parliament has shut down for a month to combat the spread of coronavirus. One of its last acts, in the final session, was to pass through the Coronavirus Bill, which received Royal Assent on Wednesday night. At the same time Royal Assent was given to the very short Contingencies Funding Act 2020, which provides the Government departments with the authority to expend resources, capital and cash via the supply process. 

Whilst some of the detail remains subject to further sub-ordinate legislation we have set out below a list of the key provisions of the Coronavirus Act 2020 (the "Act") as they relate to local authorities.

Financial provision

Under the Act, Parliament will provide money to pay any expenditure incurred by a public authority in the making of payments, or the giving of financial assistance (including by way of grant, loan, guarantee or indemnity) to a person (whether directly or indirectly), as a result of coronavirus or coronavirus disease. This includes expenditure incurred before or after the passing of the Act. Please see section 86 of the Act for further detail of the full financial provisions to be made by Parliament. The term "public authority" is not defined in the Act. However, previous legislation (such as the Public Contracts Regulations 2015 and the FOIA 2000) has indicated that it means any organisation performing a task carried out in the public interest or in the exercise of official authority vested in it.

Power to change meetings rules
The Act confers power on the Secretary of State, Welsh Ministers and Department for Communities in Northern Ireland to make regulations in relation to meetings of specified local authorities taking place before 7 May 2021. Schedule 12 of the Local Government Act 1972 sets out the current requirements for meetings and proceedings of local authorities. The power conferred under the Act may be used to disapply, modify or make supplementary or transitional provisions to the requirements relating to meetings, for example, to remove requirements to hold annual meetings, or to allow virtual meetings. Please see section 78 of the Act for further detail. A list of the "local authorities" to which this power relates is contained at s 78(7), (8) and (9) of the Act.

Postponement of elections

The Act makes provision to postpone elections in England and Wales scheduled for 7 May 2020 by a year to 6 May 2021 (and to defer costs accordingly). It also makes provision for other relevant elections and referendums that may arise (for example, by-elections) to be postponed up to 5 May 2021. Supplementary provisions may also be made to handle the consequences of any election postponements. Warwick District Council, for example, made an announcement relating to the cancellation of its planned upcoming referendum and its implication on a Council tax increase yesterday. Please see, for further detail, sections 59 – 63 of the Act (England), sections 65 – 68 (Wales) and sections 69 – 70 (Scotland).

Social Care

Schedule 12 of the Act modifies the powers and duties of local authorities in England and Wales in relation to the provision of care and support.

1. A local authority may lawfully prioritise who and what type of needs it will meet, rather than being required to meet all eligible assessed needs as specified under the Care Act 2014;
2. Local authorities may lawfully determine whether and the extent to which it will carry out assessments of individuals’ needs or review care plans, or carry out financial assessments, rather than being required to carry these out in all cases required by the Care Act 2014; and
3. The Secretary of State, Welsh Ministers and Department for Communities in Northern Ireland may direct local authorities in relation to the prioritisation of services to meet care and support needs in accordance with guidance issued by the Department of Health and Social Care.

Sections 6 (England and Wales) and Section 7 (Scotland) as well as the corresponding Schedules 5 and 6, introduce a temporary regime for emergency registration of social workers, recognising the potential staff shortages that may arise, but balancing it with the risk of allowing untrained and unskilled individuals which would be disproportionate.

Powers in relation to bodies

It is recognised that existing legislative provisions that give local authorities powers (e.g. Local Government Act) are insufficient to deal with the scale of the potential problem. Section 58 and Schedule 28 provide new powers for local authorities to direct crematorium and burial sites to increase their throughput by extending operating hours and curtail or ceasing services. This will bring additional risks to these businesses and likely will financially disadvantage them. Therefore, the individuals coordinating the death management system during this emergency require the power to direct them to increase their capacity.

Commencement and Consequential Modifications

The majority of the Act came into force on 26 March 2020.  A small number of provisions contained in Section 87(2) of the Act are subject to the requirement for a commencement order. In England the Coronovirus Act 2020 (Commencement Order No. 1) Regulations 2020 brought into immediate force sections 18, 19 and 21 and Schedule 13 (Registration of deaths and still-births etc.). At the time of publication the devolved administrations had not brought forward any such Regulations under the Act.  

Sections 93 to 96 of the Act provide a wide power to Ministers and/or the devolved administrations to bring forward subordinate legislation as required to many provisions of the Act. Regulations can be made under the negative procedure (i.e. subject to annulment by Parliament but otherwise passed when signed) or, where such Regulations modify primary legislation, either the made affirmative or draft affirmative procedures can be used (i.e. they must be laid before Parliamant as soon as practicable after being made).  As it stands there are no Regulations made governing matters ranging from local government administration to the postponement of elections.

We will however report in due course on any Regulations made pursuant to the Sections mentioned in this note.

Expiry

Sections 90(1)(a) and (2)(a) of the Act confer powers on the UK Government Ministers and/or the devolved administrations to make regulations to the effect that any provision of the Act would not expire at the time that it would otherwise expire (being, unless otherwise stated, 25 March 2022). Therefore the dates mentioned in this note could either be extended or brought forwards by subsequent secondary legislation, provided that any extensions may only be made in 6 month increments.

DWF Law LLP has a breadth of expertise in public law, public procurement and State aid law matters. We are able to draw upon a team of leading experts, in our UK, Brussels and other international offices, who have extensive experience in advising contracting authorities and the private sector delivering services to the public.

 

To read more from our experts, see below: 

Further Reading

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