Section 2 – Easing of legislative and regulatory requirements
Delaying Continuing Health Care assessments
This provision allows NHS providers to delay undertaking the assessment process for NHS continuing health care (NHS CHC) until after the coronavirus outbreak has ended.
Rationale for intervention
NHS Continuing Healthcare provides fully funded packages of care to individuals outside of hospital when they are assessed as having a ‘primary health need’.
NHS Continuing Healthcare assessments can cause delays to hospital discharge and are detailed processes which require significant input from both NHS and Local Authority employees.
During the peak of the coronavirus outbreak, the NHS will face surging demand and reduced capacity arising from higher rates of staff absence. In order to allow the NHS to make the best possible use of its staff and hospital space, it will be essential to ensure that patients who are ready to leave hospital can do so rapidly, and with the minimum administrative burden.
The undertaking of NHS Continuing Healthcare assessments could be a barrier to this as NHS organisations have a statutory duty to undertake these for individuals who may be eligible for Continuing Healthcare support before they are discharged from hospital.
This provision allows NHS organisations to delay undertaking NHS Continuing Healthcare assessments until after the peak of the coronavirus outbreak.
This measure would only be brought into operation for the shortest possible time at the peak of the coronavirus outbreak. It would support rapid discharges from hospital and the effective prioritisation of NHS staff resources
Pending CHC assessment, individuals would continue to receive NHS funded care.
Other policy options considered?
We considered providing no easements in terms of the statutory duties of CCGs. However, this would leave CCGs open to legal challenge subsequently and the continued attempt to undertake assessments could become an unnecessary blocker within the system in the context of the coronavirus outbreak.
Key considerations
This provision may increase uncertainty for individuals who would otherwise have had their future funding arrangements agreed sooner.
In order to mitigate the impact of this uncertainty, and the impact on individuals’ finances, individuals who the CCG considers may be eligible for CHC funding will be directed towards NHS funded discharge routes and assessed for CHC following the conclusion of the emergency.
With this mitigation in place, the impacts of these provisions are outweighed by the benefits it will bring by ensuring rapid discharge of individuals from hospitals and freeing up both CCG and LA resources which would otherwise be spent on undertaking multi-disciplinary team assessments.
Power to make directions in connection with the running of the education and registered childcare systems
Rationale for intervention
These powers are needed to enable the education and childcare systems to keep running as far as possible, mitigating some of the negative impacts of a coronavirus outbreak on those systems and the wider economy. These powers may be used to require relevant providers to stay open or reopen, enable individuals or groups to attend different premises, to change term/holiday dates. The powers may also be used to required relevant institutions to provide additional services, for example, provide extended hours childcare.
Directions might be made in a variety of scenarios. Depending on the particular decision, these decisions currently sit mostly with the owner/proprietor of the relevant education institution or childcare provider, such as governing bodies for maintained schools or the academy trust for academies and would continue to do so in the first instance. However, this power enables the Secretary of State or the Welsh Ministers to override a decision if, for example, a school decided to close, contrary to advice and guidance from the Chief Medical Officer and the Secretary of State or Welsh Ministers wish to direct the school to re-open.
There is a significant risk that some schools, other educational providers and childcare providers may decide to close where there is no need to do this. This could cause avoidable disruption to children’s or young people’s education and to the working arrangements of parents. The power might therefore be used to prohibit a planned but not yet implemented closure or to require a closed institution to re-open and resume its normal activities. This could also cause avoidable disruption to students who are due to undertake assessment and sitting examinations for GCSEs, A levels and other qualifications at the educational institution, which has knock on effects in terms of their subsequent progression to tertiary and higher education or their access to the labour market in later life. This power also enables the relocation of students temporarily, for the continuation of the education or childcare, including for example, arrangements for students to sit exams at an alternative site.
If we did not take powers for students to attend different premises, there is a risk that where some educational institutions have closed, they would not be able to continue their education. Whilst this would cause general disruption to education, this would be a particular risk for students who need to undertake coursework assessment and/or sit exams which will affect their future lives.
The directions power may be used to ensure that transport is provided to children and students to travel to alternative locations, that other services connected with the provision of education or childcare are provided, and to vary term time or holiday dates according to the public health situation in a geographical area and educational need.
In the event of a serious coronavirus outbreak resulting in large-scale closure of schools and other educational institutions, Local Authorities (LAs) and providers may need to set up new education and/or childcare provision or extend provision as far as reasonably practicable. These powers would be needed to avoid unnecessary disruption to parents’ working lives where provider closures are unwarranted. There may also be a specific need to require education or childcare providers to open outside normal hours and/or for non-education providers to make premises available in order to allow exams (e.g. for GCSEs and A levels) to go ahead.
Other policy options considered
We have considered not taking these powers but consider them necessary to ensure that schools, educational institutions, including childcare providers, stay open and reopen as necessary in line with Chief Medical Officer advice, as well as powers beyond this such as alternative to attendance at different premises, exam provisions etc. Without this power we would have to rely on institutions following advice and guidance; there have already been a number of examples in the education sector of institutions not doing this.
Registered early years and childcare providers
We have considered whether local authorities’ existing statutory duty to manage the local childcare market might be a basis for equivalent actions, but it does not give LAs sufficient powers to do so.
Maintained schools
There are a number of existing intervention powers in relation to maintained schools – these include powers under public health and education legislation. Local authorities also have some powers. But these generally relate to failures of educational performance, irrationality, or failure to discharge statutory duties, none of which are likely to be appropriate triggers for the different policy aims of this power. The possible outcomes of such interventions are also limited; for example they do not require schools to remain open (unless it would be irrational not to do so).
Academies
The Secretary of State has some intervention powers as the regulator of independent schools (which includes academies). However, these powers are largely concerned with educational standards; and the enforcement process is protracted.
When considering potential enforcement mechanisms, we looked at option of issuing a ‘Financial Notice to Improve’ (FNTI) to academy trusts that failed to comply with a temporary direction to remain open or re-open. An academy trust is bound to comply with such a notice under the terms of its funding agreement. However, it was considered more coherent from a policy perspective to have one enforcement mechanism that applied to all educational and childcare institutions to which the direction power applied. Further, the FNTI process is protracted therefore unsuitable in the context of a coronavirus outbreak.
Further Education providers
The Secretary of State has intervention powers in relation to general further education and sixth form college corporations, and local authorities, that would in principle enable a direction to be issued to the governing body of the institution, including a direction to close. But the use of these powers is limited to circumstances in which there has been clear mismanagement or unreasonable behaviour, so would not be suitable for the circumstances here. In addition, these powers do not cover large numbers of providers – such as independent training providers.
One option considered was to use contractual or other funding agreements. However, this approach would have been inconsistent with the overarching approach taken for other educational settings. More students aged 16-18 study at an FE or Sixth Form College than in schools and it is important that the arrangements particularly in respect of these learners is clear. Relying on contractual obligations would have also made the enforcement of the temporary closures more difficult, and would fail to capture significant areas of provision delivered by subcontractors (who do not have a direct contractual relationship with the Secretary of State).
The Department for the Economy (Northern Ireland) has no powers to direct the temporary continuation of further and higher education provision at the further education colleges or higher education institutions in Northern Ireland. Therefore, this power has been sought within this Bill. These powers will only be used on the advice of the Chief Medical Officer in Northern Ireland, or its deputy.
The same benefits and disbenefits to this provision identified above apply to Northern Ireland with regards to further and higher education.
Higher Education
HE providers are independent and autonomous institutions regulated by the Office for Students (OfS) as Government’s independent regulatory body for the Higher Education sector. The OfS does not have the power to direct registered providers and its greatest sanctions are deregistration and fines for non-compliance with the conditions of registration. It has limited engagement and hence no direct power with unregistered providers. One option considered was to use informal agreements through sector bodies or contractual agreements. However, this approach would have been inconsistent with the overarching approach taken for other educational settings.
Further Education
An alternative option would be to secure voluntary co-operation of institutions to make the changes needed to set up new education and/or childcare provision or extend provision.
Directly contracted holiday provision
The terms Grant Funding Agreement currently enable the department to withhold funding from the provider in the event of unauthorised closure, but this may not be enough to guarantee re-opening, and the more limited geographical spread of provision makes referral to another provider impractical.
Key considerations
Early years and childcare providers
Keeping childcare providers open will support parents to be able to continue to work, and will also ensure continuity of care and support for children with additional needs. However, our ability to require the providers that are privately-owned businesses may be limited.
If providers are asked to take on additional functions or stay open longer, that will incur costs and parents may not be in a position to spend more on childcare than they already do. This power will be more important in relation to private, voluntary and independent childcare providers. The Secretary of State and Welsh Ministers/Ofsted and Care Inspectorate Wales (CIW) have less control and this additional power would be most needed to ensure these childcare providers comply with a request to extend their hours.
Maintained and Independent Schools
Keeping schools open will support parents to be able to continue to work. It will also ensure that children’s education is not disrupted due to over-cautious closures on the part of the proprietor. It will also allow provision to be maintained where this is required due to other school closures and to ensure that the pattern of provision best meets the needs of local communities. This includes in particular enabling exams for GCSEs, A levels and other qualifications to go ahead as scheduled.
Compelling schools to remain open where there are no compelling grounds for closure should not in principle create additional pressures on the school workforce. In cases where schools are compelled to remain stay open but are experiencing some short-term staffing shortages due to wider health measures there may be cost implications arising from an increased reliance on contingency workers, which could result in calls for additional central funding.
The school workforce may be unable or resistant to working longer or different hours or working in different locations. There accordingly could be cost implications arising from the need to remunerate staff at higher rates or from increased need to use contingency workers, which could result in calls for additional central funding.
Independent and residential schools
Keeping schools open will support parents to be able to continue to work.
Further education providers
Keeping further education providers open will minimise the disruption to students and progression to further study or work, particularly by allowing exams for A levels and other qualifications to go ahead. It will reduce the risk that some students may drop out of their programmes of study and become NEETs.
Directly contracted holiday provision
Due to the limited number of locations (currently in only 11 local authority areas) and the focus on activities rather than lessons, we do not anticipate that closures would cause unduly negative educational impacts on large numbers of children. However, as the provision is targeted at disadvantaged (free school meal) children, unnecessary closure would have an impact on them in terms of access to food and engagement in holiday experiences, and would also result in increased costs to parents who are already on low incomes.
Higher Education
The power should apply to all premises occupied by Higher Education Providers (HEPs) or their students, regardless of whoever is the building’s owner. This means premises, or sections of premises, used for the purposes of higher education are included in the power, including purpose-built student accommodation (PBSA) occupied primarily by higher education students, whether that PBSA is HEP or privately owned. This power will cut across the property rights of private businesses and perhaps individuals and will need drafting with reference to other government departments such as MHCLG and BEIS.
The main focus may need to be on PBSA to avoid large numbers of students travelling and spreading the virus, especially non-UK domiciled students.
Where there are concerns to protect HEPs from being sued for reneging on their consumer protection (and/or contractual) obligations in the event of course closure we believe force majeure would be relevant.
There is potential for financial detriment to providers arising from closure, and from being asked to do things additional to their normal business.
Providers will retain much of their costs but risk losing income from commercial activities, facing compensation/refund claims from students, and potentially some extra charges for void accommodation caused by students moving to somewhere they better protects them from contagion. In the event we decide to compensate providers for adverse financial impact from the financial burden of requirements we would need the ability to direct relevant public funds to them. We understand that for registered providers in the ‘approved fee cap’ category, we might be able to achieve this through OfS under the provisions of s39 HERA 2017. That power would not cover payments to registered providers in the ‘approved’ category or non-registered providers. We understand that under the powers being proposed generally here, we would not need specific provisions, as there would be wider powers for government to deploy public funds. If that is not the case, then this is an issue we would need resolving here.
Using power to enable students to attend different premises
The power would also enable students to attend different premises – for example it would enable us to insist that school A allowed in students from school B for the purposes of sitting GCSE exams. This might require school A to send home students from other year groups temporarily in order to make space, which would have a knock-on consequence for their parents’ ability to work. There could also be calls to reimburse costs for institutions or for individual students (e.g. in relation to additional travel).
Special considerations for DAs
In Scotland, Scottish Ministers have many similar powers in relation to the Scottish education system as those held by the Secretary of State and referred to above. In particular, since public schools in Scotland (which are the vast majority) are all directly operated by local authorities in their role as education authorities, these authorities have complete control over these schools. There are well established relationships between Scottish Ministers and local authorities in relation to schools which might be sufficient to ensure any necessary actions could take place without a direction. Nevertheless, mindful that these powers are designed for use in an emergency when there may be little scope for the normal consultation with authorities; and the importance of providing clarity to all in the system, it is felt appropriate to take matching powers in Scotland to give directions. The need to be able to act clearly and with speed in an emergency also applies in relation to non-Local Authority schools, for example grant aided and independent schools, and the powers therefore apply to all types of schools in Scotland.
The same benefits and disbenefits to this provision identified above apply in Scotland.
In Northern Ireland, NI Assembly Ministers have many similar powers in relation to the Northern Irish education system as those of the Secretary of State. There are well established relationships between Ministers and authorities in relation to schools which might be sufficient to ensure any necessary school closures could take place without a direction. However, many of these would not allow for immediate action and their complexity mean they would be administratively burdensome to use at a time of public health emergency. For those reasons NI Assembly Ministers considered it appropriate to take matching powers in Northern Ireland to give directions to temporarily close educational institutions and childcare providers.
Power to disapply or modify provisions in relation to education and childcare
Rationale for intervention
This gives the Secretary of State and Welsh Ministers the power to temporarily disapply or modify existing legislative requirements in education and childcare legislation e.g. requirements to provide school meals, including free school meals, and local authority duties to ensure education. This will enable Local Authorities (LAs) and education and childcare providers to operate a service level different from usual practice, without being in breach of regulatory requirements. The intention is that this would, however, not extend to essential requirements such as safeguarding, health and safety or permanent exclusion. It will also enable the Secretary of State to suspend duties, such as those on parents in respect of child attendance at school.
In the event of an emergency, the education and childcare system will need to operate in a way that continues to benefit children, young people and students of all ages, but in a way that is operationally viable. Relaxing existing requirements may be desirable and necessary to allay any concerns that Local Authorities, schools, childcare providers, FE and HE providers may have when operating in these difficult circumstances and would help to maintain staff morale and wellbeing. This power would enable us to act quickly to remove these duties on a temporary basis and provide clarity and certainty to those working in education and childcare systems, parents and the public about what legislative requirements must be complied with.
Other policy options considered
We considered whether guidance and communications alone were sufficient, however this may not give the sector the clarity they need or provide for necessary consistency in interpretation because of the scope for confusion and variation in practice. In addition, the sector and those who insure them may be concerned that institutions may be open to litigation or judicial review for failing to comply with requirements – this may stymie the sector’s ability to respond quickly or pragmatically. Similarly, we considered simply not enforcing requirements, but rejected this on the same basis and also that in some cases it is not within the Secretary of State’s power or the Welsh Ministers’ power to decide not to enforce.
Key considerations
Our aim is to help LAs and education and childcare providers to deliver their services in a pragmatic way, without fear of breaching their duties or other requirements. This is likely to be seen by the sector as a sensible and necessary approach, although for early years in particular it is likely that concerns about safeguarding will be expressed.
We need to be clear that these arrangements do not relax requirements such as safeguarding or health and safety, and that any action taken will be focused on the interests of children and young people and their wellbeing. The key and immutable principle is the safety and wellbeing of children, young people, staff and others engaged in the sector. Therefore, there are certain requirements that cannot be relaxed, such as those relating to safeguarding or health and safety. Also, in operating under requirements that are relaxed, consideration must be given to these factors.
Relaxing these requirements is likely to have a detrimental effect on things such as the quality of services or pupil education/progress, particularly given a longer outbreak or a rolling series of them. The Secretary of State and Welsh Ministers will regularly review the dis-applications, each dis-application will last a maximum of a month before it ends or needs to be renewed.
We expect the sector and public to welcome these powers, as part of necessary steps to manage an emergency. However, we need to be clear that these arrangements do not relax requirements such as safeguarding or health and safety, and that any action taken will be focused on the interests of children and young people and their wellbeing.
Some parents may be resistant to the relaxation of certain measures which may result in pupils or children not receiving a normal service, suspending free school meals, or children not being able to attend their normal school.
Maintained and Independent Schools
The power would only be used to protect schools from the risk of legal challenge where they were unable to comply with existing legislative requirements due to restrictions they were operating under as a result of public health measures or severe disruption to the supply chain. The power would only be used where this was necessary to ensure the provision remained open and able to provide required education services.
Special considerations for DAs
An equivalent power to disapply provisions in relation to education and childcare has been taken in Scotland for Scottish Ministers. The same benefits and disbenefits to this provision identified above apply in Scotland.
An equivalent power to disapply provisions in relation to education and childcare has been taken in Northern Ireland for NI Assembly Ministers. The same benefits and disbenefits to this provision identified above apply in Northern Ireland.
Courts and tribunals: use of video and audio technology
Rationale for intervention
Legislation is required to ensure that proceedings can be conducted in more circumstances then currently allowed (such as those on bail and victims and witnesses) and also entirely by video and or telephone to avoid the risk of the spread of disease through public congregation in public places. These arrangements would enable the use of fully video and video enabled courts, so that proceedings could be conducted with all parties at remote locations. The clauses would:
- permit the expansion of the use of fully video and video-enabled hearings in various criminal proceedings
- make provision for public participation in those fully video hearings to ensure that the principle of open justice is protected
- provide for all parties to an appeal to the magistrates’ court against a quarantine order to participate by video link unless the court directs otherwise
Other policy options considered?
None considered appropriate. Primary legislation is needed to expand the circumstances and to hold fully video hearings and this cannot be done through secondary legislation or rules.
Key considerations
These measures would be used to deal with defendants on bail, witnesses and victims who do not need special measures, and other parties will be used for urgent business during the outbreak. Other arrangements would be used to manage the non-urgent business of the courts.
Video is already used in a number of criminal and civil proceedings in the courts, but Parliament and legal stakeholders have previously expressed concern about the use of fully video enabled proceedings, where all participants are remote. However, we consider that these concerns could be managed in the context of an emergency response to this public health issue.
Lords Commissioner
This clause ensures the Treasury can transact its business at all times during a coronavirus outbreak. The aim is to ensure that the Treasury is not prevented from discharging its functions by the possible unavailability of sufficient Commissioners of Her Majesty’s Treasury (the Commissioners) during a coronavirus outbreak.
Rationale for intervention
The functions of the Treasury are carried out by the Commissioners. There are currently eight Commissioners; the Prime Minister (the First Lord of the Treasury), the Chancellor of the Exchequer (the Second Lord of the Treasury) and 6 Junior Lords of the Treasury. By virtue of section 1 of the Treasury Instruments (Signature) Act 1849 (the TISA), where any instrument or act is required to be signed by the Commissioners, it may be signed by two or more of the Commissioners.
The concern is that the unavailability of sufficient Commissioners during a coronavirus outbreak period could prevent the Treasury from complying with section 1 of the TISA and consequently could prevent the Treasury from carrying out certain of its functions during that period.
We have adopted the approach of modifying section 1 of the TISA so that, during a coronavirus outbreak period, the reference in that section to two or more of the Commissioners has effect – (a) as if it were a reference to one or more of the Commissioners, and (b) as if a Minister of the Crown in the Treasury (who is not also a Commissioner) were a Commissioner. In practice, this means that, during the coronavirus outbreak, it will be possible for a single Commissioner or a single Treasury Minister to sign instruments and acts on behalf of the Commissioners.
Other policy options considered?
An alternative approach would have been to make provision for senior officials in the Treasury to act on behalf of the Commissioners. However, although these officials can already act on behalf of the Treasury in accordance with Carltona principles, we considered it unnecessary and inappropriate to take action of this type. We consider it more appropriate to retain existing procedures (that is, signature by the Commissioners) as far as possible and only to alter those procedures (to allow for signature by Treasury Ministers on behalf of the Commissioners) in ways which are consistent with the practices of other government departments.
We, therefore, consider that, by allowing a single Commissioner or a single Treasury Minister to sign instruments and acts on behalf of the Commissioners during a coronavirus outbreak, this clause strikes the right balance between constitutional propriety and making necessary provision for the Treasury.
Key considerations
The only impact is that this clause will enable a single Commissioner or a single Treasury Minister to sign instruments and acts on behalf of the Commissioners during a coronavirus outbreak.
Costs and benefits: In order for public money to be issued by the Treasury a Royal Order must first be signed by the Queen after money (Departmental Estimates) has been granted by an Act or resolution and Royal Assent is granted. The Queen can make a Royal Order under the Royal Sign Manual to authorise and require the Treasury to issue sums out of approved credits for specified votes. This is provided for in section 14 of the Exchequer and Audit Departments Act 1866.
Royal Orders are required by statute to be countersigned by the Treasury. This is done by the appointed Commissioners. Where Commissioners’ signatures are needed, the Treasury Instruments (Signature) Act 1849 provides that 2 Commissioners must sign. There are no enforcement/implementation issues as this clause only concerns how the Treasury will carry out its functions during a coronavirus outbreak.
Disclosure Scotland: reclassification of disclosure checks
This clause provides the ability for Scottish Ministers not to issue full disclosure certificates for scheme members on application, but to provide instead a shorter form of disclosure which would confirm if the individual was a member of the PVG scheme or not.
Rationale for intervention
In the event of an emergency, the Disclosure services will need to continue to operate in a way that enables the protection of children and vulnerable adults. The provisions are intended to improve operational delivery and increase timeliness of these checks during any emergency period, allowing healthcare workers the ability to quickly move into the workforce.
Other policy options considered?
As part of the response to the coronavirus outbreak, Disclosure Scotland has a number of operational plans in place to deal with the possibility of additional demand. These include things like prioritising essential applications and robust business continuity plans.
There would be an option of suspending disclosure checks and the direction of Scottish Ministers. However, the route of reclassified disclosure checks is favoured as a way of continuing to ensure safeguarding.
Key considerations
This is devolved.
Disclosure Scotland: PVG offences
The ability to enable the Scottish Ministers, during the period of a declared national emergency or pandemic attributed to an outbreak of coronavirus, to suspend the offence provisions applying to organisational employers and personnel suppliers in Part 1 of the Protection of Vulnerable Groups (Scotland) Act 2007 (the 2007 Act).
Rationale for intervention
In the event of an emergency, the Disclosure services will need to continue to operate in a way that enables the protection of children and vulnerable adult. The purpose of this is to avoid inadvertently criminalising healthcare employers like the NHS during the emergency period if they employ a barred person to do regulated work (for instance, if there has been insufficient time to obtain a PVG check in advance).
Other policy options considered?
There would be an option of ‘do nothing’, however, the route of dis-applying these PVG offences is favoured as a way of ensuring health services can recruit the people they need to quickly without fear of legal repercussions.
Key considerations
This is devolved.
Investigatory Powers
Rationale for intervention
The Government wants to ensure that the Investigatory Powers Commissioner (the independent overseer of almost all investigatory powers) is not prevented from discharging his functions due to the possible unavailability of sufficient Judicial Commissioners, who assist him in performing his functions, due to the impact of the coronavirus outbreak. There are currently 15 very senior Judicial Commissioners, many of whom are in high risk groups from the virus itself or highly likely to be affected by other measures the government is taking to mitigate the virus’s impacts.
The investigatory powers in the Investigatory Powers Act 2016 (IPA), and therefore warrants for them, play a vital part in almost all MI5 and NCA investigations to protect our national security and prevent serious crime. The IPA created the ‘double lock’ for all warrants sought under its powers. A warrant under the IPA has to be signed by the relevant Secretary of State and then approved by a Judicial Commissioner for it to be lawful (other than urgent warrants, which are valid for only short periods of time and require Judicial Commissioner approval up to three days after being issued). Therefore, unless there are enough available Judicial Commissioners there is a real danger that the warrantry regime would cease to function, which would have extremely significant impacts on national security and the prevention and investigation of serious crime.
The provisions in the Bill create a regulation-making power to allow the Home Secretary, at the request of the Investigatory Powers Commissioner, to vary the appointment process for Judicial Commissioners to allow for the Investigatory Powers Commissioner to directly appoint temporary Judicial Commissioners. The temporary Judicial Commissioners will be appointed for terms not exceeding 6 months each and no more than 12 months in total.
As mentioned above, the IPA creates a procedure for urgent warrants. This allows for ex post facto authorisation of an urgent warrant by a Judicial Commissioner within three working days. Such urgent warrants only last for a maximum period of five working days unless renewed.
The Bill will create an order making power to allow the Home Secretary to vary the time periods of an urgent warrant at the request of the Investigatory Powers Commissioner. This would extend the timeline for ex post facto Judicial Commissioner authorisation and the lifespan of the warrant for up to 12 working days.
Other policy options considered?
We considered and rejected suspending the use of Judicial Commissioners to approve warrants should there be a shortage of Judicial Commissioners. The role of Judicial Commissioners forms a vital part of the safeguards contained in the IPA to ensure that the very intrusive powers contained within it are exercised only when it is necessary and proportionate to do so. Allowing temporary Judicial Commissioners to be appointed quickly, and a short extension of the time periods for urgent warrants were considered the simplest and least disruptive method of ensuring that the warrantry system as a whole, with all the safeguards contained within it, is able to function effectively during a coronavirus outbreak.
Given the prescriptive nature of the relevant sections of the IPA, there were no non-legislative methods of achieving a similar outcome.
Alternative timelines were considered for extending the urgent warrant timelines, but after consultation with stakeholders, the proposed option was felt to be lowest possible extension which would also mitigate the potential risk that warrants made under the urgent procedure – which include the most serious of situations, including where there is an imminent threat to life – do not fall away due to a lack of available Judicial Commissioners.
Key considerations
The only impact of the first clause is that it will allow for a temporary Judicial Commissioner to perform the functions of a Judicial Commissioner during the coronavirus outbreak should their appointment be deemed necessary by the Investigatory Powers Commissioner. There are no implementation issues.
The only impact of the second clause is that if the power was used it would result in an extended period between an urgent warrant being issued (following Secretary of State approval) and it receiving approval from a Judicial Commissioner. There is also an extended period of time before a renewal is required. This could be argued to have an increased interference with ECHR Article 8 rights, but it is one which is judged to be necessary and proportionate in the circumstances. There are no implementation issues.