Section 3 – Containing/slowing the virus
Powers to direct suspension of port operations
Rationale for intervention
Protecting the border is a fundamental duty of government. In the event that Border Force resources are depleted due to Covid-19 to such an extent that that there is a real and significant risk that there are or will be insufficient border force officers to maintain adequate border security, a power is needed to ensure that we can direct arrivals to ports of arrival in the UK where there will be sufficient Border Force officers to carry out the necessary border security checks.
The proposed powers will allow the Secretary of State to direct a port operator (i.e. a person concerned in the management of a port) to suspend relevant operations, partially or wholly, in the event that there is a real and significant risk there are or will be insufficient resources to maintain adequate border security. The power will also provide for the Secretary of State to issue a direction in writing to any other person requiring the person to make such arrangements, or take such steps, as the Secretary of State considers appropriate in consequence of the primary direction.
The power is only available when the Secretary of State has exhausted all relevant alternative mitigations. Use of the power would be governed by strict safeguards to ensure that the it is used fairly, responsibly and proportionately and with the appropriate level of authority. While responsibility for an initial direction may be made by senior Border Force officials on behalf of the Secretary of State, our expectation is that any decision to extend the period beyond 12 hours would be taken at Ministerial level and subject to engagement with relevant government departments and devolved administrations.
Failure to comply with a port direction or supplementary direction would constitute a criminal offence, subject to excuses for reasonable cause. The Bill will be in force for a limited time and is aimed at the threat from Coronavirus and we anticipate ports will comply; directions are only anticipated to be used on rare occasions.
Other policy options considered
The measure will only be employed once other measures as are reasonably practicable to mitigate the risk have been taken.
There are no suitable alternative mechanisms to either close ports or divert inbound services where there is a need to do so for border security purposes: this could result in control breaches and a risk to border security (e.g. potential non-detection of national security or criminality threats, importation of drugs or other prohibited items).
Key considerations
We would expect to use this power only once other appropriate mitigating measures had been exhausted by Border Force. The power would apply in respect of any port of arrival in the UK. It would not have extraterritorial effect and would not therefore apply at juxtaposed ports in France or Belgium although the powers would be applicable at Dover, St. Pancras, Ashford, Ebbsfleet or Cheriton.
The measures are likely to have an impact on port operators, carriers and their customers: we will therefore engage with them to discuss implementation in an effort to minimise the impact where possible. However, there is a risk port operators could:
- challenge the need for the provisions and question whether the objective cannot be achieved instead through operational and decision-making structures and without recourse to legislation
- challenge the measures in the absence of consultation or a comprehensive impact assessment
Powers relating to potentially infectious persons: constables and immigration officers
Rationale for intervention
The policy aim is to give constables and immigration officers the necessary powers to support the wider public health efforts to manage the spread of coronavirus.
The proposals will provide the police with the means to enforce sensible public health restrictions, and where necessary, directing individuals to seek relevant treatment or attend suitable locations for further help. These measures look to fill existing gaps in powers which prevent the screening of people who may be infected or contaminated with the virus and which prevent the police from enforcing such measures where necessary.
The proposals will also ensure that immigration officers and constables can support the wider public health effort where they encounter a person who is, or may be, infectious during the course of their normal functions at the border or while exercising immigration enforcement functions in country. The proposed powers will allow an immigration officer to direct or remove such a person to a suitable place for the purpose of screening and assessment or to keep that person there or at another suitable place for a time-limited period to be handed over to a relevant health official for the same purpose. Obstructing an immigration officer or a constable in the exercise of a power under the Schedule would constitute a criminal offence, but we expect the vast majority to comply without compulsion.
Other policy options considered
In advance of making the Health Protection (Coronavirus) Regulations 2020, which introduced public health measures to tackle coronavirus in England consideration was given to whether existing police powers might be available to constables to assist in the containment of coronavirus in the absence of further legislation. It was concluded that, while existing powers could be used in some circumstances, all had substantial limitations. There was also a lack of consistency across the different jurisdictions.
The limited existing powers of constables to detain people or direct them to do things to contain coronavirus would leave them in a weak position and open to potential criticism given their frontline role in the community. The proposed measures will address those concerns by giving constables the necessary powers to take action to direct or detain persons for the purpose of screening and assessment and to assist in the enforcement of health protection provisions where requirements have been imposed by the Secretary of State.
Immigration officers working at the border or exercising enforcement functions in country may encounter people who have travelled from infected areas or who they have reasonable grounds to suspect may be infectious with coronavirus.
Immigration officers have very limited powers in respect of British citizens and there are restrictions on their powers in respect of EEA nationals - the proposed power will ensure that immigration officers operating at the border, or carrying out immigration enforcement functions in country, will have the authority to direct or take an individual suspected of being infectious, regardless of their nationality, to a hospital or other suitable place.
We considered whether the same outcome could be achieved by simply asking individuals to voluntarily submit to public health testing but there would be no means of enforcing compliance. This would be of particular concern at a port where we know that a person has arrived from an infected area and we would have no means of ensuring that they dock into public health arrangements.
Key considerations
The health and safety of our officers is paramount, and the exercise of these powers will be underpinned by clear guidance developed in accordance with public health guidelines.
With regards to police and IOs, any provisions giving broad powers of detention would be highly likely to be controversial with stakeholders who regard police and IO detention as needing to be strictly limited and subject to several safeguards against abuse.
With regards to IOs, the powers will apply in respect of any person who an immigration officer reasonably suspects may be carrying the virus, including British and EEA citizens. They will provide IOs with an additional capability which is both responsible in principle and proportionate in scope/application, however, given that EEA and British citizens are normally out of scope of their enforcement powers, this is likely to result in some controversy.
In mitigation, the measures are a reasonable and proportionate response and in the vast majority of cases we do not anticipate the need to use them will arise.
Power to temporarily close educational institutions and registered childcare providers
Rationale for intervention
These powers would be needed to stop the spread of the disease and ensure welfare and safety of those working and studying in schools and other educational institutions, including childcare providers, by temporarily closing institutions as required. This would involve schools, including independent schools, Further and Higher Education institutions as well as registered childcare providers (including childminders) closing temporarily to prevent the spread of the virus. Closing such institutions and providers will reduce the risk of the virus spreading amongst children and students where it is likely that due to the numbers and close proximity in such places, the virus may spread rapidly. This power gives the Secretary of State and the Welsh Ministers the ability to direct institutions to take steps to stop people attending for a temporary period of time specified in the direction.
Other policy options considered
We have considered whether we will require some institutions to remain open in tandem to continue the provision of education and support the continued operation of the economy by enabling parents to continue working.
Registered early years and childcare providers
‘Registered’ means providers that are registered on either or both of the Early Years Register (for children up to five) or General Childcare Register (for children over five). Ofsted currently has some power to close individual providers, particularly under public health and education legislation. However, they are not deemed suitable for the sorts of necessary closures required. This is due to high threshold for using the powers (risk of harm to children); and the secondary issue, in that they could not be applied to several institutions concurrently. In Wales, ‘registered childcare providers’ means a person who provides childcare and is registered under Part 2 of the Children and Families (Wales) Measure 2010. The powers the Welsh Ministers currently have to close providers is not deemed suitable for the sorts of closures that may be necessary as a response to a coronavirus outbreak.
Maintained schools
There are a number of existing intervention powers in relation to maintained schools– these include powers under public health and education legislation. These powers would not be sufficient in the event of a coronavirus outbreak – broadly, because (i) they relate to educational performance in schools; (ii) they could not be exercised quickly; (iii) they could not be exercised in relation to large numbers of institutions or areas (iv) where the power is conferred on a local authority it is felt this would not provide a sufficiently rapid response to a coronavirus outbreak and may further increase the potential loss of lives.
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’ (FN) to academy trusts that failed to comply with a temporary closure direction. 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; that the direction power applied to. Further, the FN process is protracted therefore unsuitable in the context of a coronavirus outbreak.
Independent schools and Further Education Institutions - day and residential
Consideration was made to use the Independent school standards ‘enforcement action’, which is currently in existence. This was subsequently ruled out as an option, mainly due to the length of time it would take to implement. Similarly, a current Emergency Power exists for Independent sector institutions, however the length of timed required to implement a closure (approx. two weeks) rendered this option as ineffective.
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 informal agreements through sector bodies or 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 less formal sector agreements or 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 SoS). Rather than apply at an institutional level we considered applying a direction to the individual student. This would mean taking a different approach to schools and early years providers but would have the advantage of bringing into scope other providers of FE not captured by the legal power. However, it was considered that applying the direction at individual rather than institutional level would be administratively much more complicated and burdensome (particularly for the courts) and make enforcement more difficult to achieve.
We therefore determined that it was better to apply the power at an institutional rather than individual level, and have a broad discretionary closure power, which would allow certain activities or facilities of the institutions within the further education sector to be excluded where there was a clear case for doing so.
Higher Education
While the Office for Students does have some discretion in the application of its conditions of registration, its ability to completely disregard its own conditions, as set out in the regulatory framework under the Higher Education and Research Act (HERA) 2017, is unclear and untested, especially if there was prolonged disruption. Hence we consider it appropriate to take specific power to enable the OfS to disregard its conditions in these circumstances.
Key considerations
Early years
In the event of a period of closure, there would be an immediate impact on parents, resulting in many adults potentially having to take paid or unpaid leave. Some may even leave or lose their jobs as a consequence of having to stay at home.
Aspects of the department’s early years entitlements (i.e. the universal 15 hours of funded early education for 3 and 4 year olds, the additional 15 hours for children of working parents and the 15 hours for more disadvantaged 2 year olds) and equivalent early years and childcare arrangements in Wales would also be affected by closures. Parents would lose entitlement hours during periods of closure, in the same way that they would lose hours because of flooding or snow. We considered ‘pausing’ the entitlements during closures, but this would be extremely challenging to administer and it is not clear that parents losing hours during closure would want to use more hours later in the year. We also considered encouraging local authorities to work together to allow children to take up funded hours of early education in an unaffected area, but again this would be complicated to administer, and more importantly, would risk further spreading disease.
Parents may lose money for paid-for hours during periods of closure (i.e. hours of early education on top of the entitlements). Compensating individual families would be extremely difficult to manage. Mindful that providers can unexpectedly close or a number of reasons, we considered whether agreements that are already in place between a provider and a family would cover compensation in the event of unexpected closures, but this does not appear to be the case. And work with stakeholders has shown that providers’ insurance policies are highly unlikely to cover any loss of income due to coronavirus.
Before school, after school and holiday childcare for school-age children
As with early years provision, there would be an immediate impact on parents, although for before and after school childcare, the impact would be less than, for example, all-day childcare. However, the closure of holiday provision would have a similar effect. There are no entitlements for school-age childcare, and the agreements between parents and individual providers will determine what would happen to ‘lost’ hours of paid-for childcare. And as with early years, providers may have in place insurance to cover lost income, but it is very unlikely to cover coronavirus-related closures.
Schools (Academies and maintained schools)
If the school is closed for a long period of time, there may be a detrimental effect on pupil progress. This could be even more acute for pupils sitting examinations and for those with SEN. Closure of the school may disproportionately affect children receiving free school meals, which to some pupils may be their only meal of the day.
Protracted closures could also hinder the delivery of the school-based elements of initial teacher training, which could present longer-term risks to teacher availability.
Independent day and residential schools
The impact on Independent schools as ‘private business’ and the financial implications of having to close for a period of time and the subsequent knock on effect of taking such a decision is a key consideration.
Another consideration focuses on residential schools and how the closure would impact on children from abroad and those whose parents work and live overseas.
Children who attend both day and residential schools whose parents are resident abroad will have a UK based educational guardian. Parents and educational guardians may be resident a significant distance from school.
The solution to this consideration would be to evaluate on a case-by-case basis and to exercise common sense and practicalities. For example, skeleton staff may remain at the residential school and a restriction of movement (outside of the school grounds) may be applied in order to reduce the spread of infection.
Further Education
The direction to close temporarily conflicts with duties on young persons aged 16 and 17 to take part in education, employment and training under section 2 of the Education and Skills Act 2008, and duties on institutions within the statutory further education sector that flow consequential to the duty under section 2 is therefore removed for the duration of any temporary closure.
Some institutions will provide residential accommodation (sometimes in respect of higher education, land based provision or for those with SEND) – this will need to be factored in when determining the basis on which the temporary closure direction is made.
Some institutions will also have learners who spend a significant amount of their time in the workplace, for example, as apprentices. The closure power will only apply to the institution, and not the workplace.
The points above re the impact on students due to sit exams in schools apply equally to FE.
The purpose of Power 2 (the Directions Power) is to enable many of the negative impacts mentioned above to be mitigated.
Qualifications
Closing schools and other educational institutions with students undertaking assessment and exams for GCSEs, A levels and other qualifications, alongside other providers that are exam centres, could adversely impact on their progression to subsequent study (e.g. in tertiary or higher education) and their access to the labour market.
Higher Education
The power of closure 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.
Closure of PBSA would mean, however, that students are forced to travel, thereby potentially spreading the virus. This would need to be balanced against the infection risk of having what is often several hundred students living in close proximity, sharing kitchen facilities in groups of usually 8 or 6. An example of where the balance might be struck is if domestic students with family homes available to them moved directly back home while those without an alternative remained e.g. international students, care leavers and estranged students.
The main focus for closures should be on buildings on campus where people congregate (lecture halls, cafes etc). Such buildings may include sections where private companies have proprietorship, although a supermarket, cafe or laundry business would have little reason to stay open if there were no students or staff on campus.
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.
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. 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.
Special considerations for DAs
In Scotland, Scottish Ministers have many similar powers in relation to the Scottish education system as those referred to of the Secretary of State does. In particular, since public schools in Scotland 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 school closures could take place without a direction. And as described above for the English education system, there are various existing powers and levers in Scotland in relation to independent schools, childcare providers and further and higher educations. 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 Scottish Ministers considered it appropriate to take matching powers in Scotland to give directions to temporarily close educational institutions and childcare providers.
The same benefits and disbenefits to this provision identified above apply in Scotland.
The Department for the Economy (Northern Ireland) has no powers to direct the closure of the further education colleges or higher education institutions in Northern Ireland. Therefore, the Department has sought these powers to ensure it can contain or prevent the spread of coronavirus. 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 in regards to further and higher education.
Closure of childcare facilities – Northern Ireland
This clause involves the Department communicating temporary closure directions to registered childcare providers via HSCB/HSC Trust staff in order to temporarily prevent the mass gathering of children, their families and staff.
Rationale for intervention
Intended to prevent the spread of infection.
Other policy options considered
Provision allows for single, multiple or all facilities to be directed to close.
Timing of when the clause will be needed in outbreak (weeks from peak)
Peak minus 4 weeks (estimated).
How would clause be operationalised and time taken?
Temporary closure directions finalised and issued to HSCB Family Support NI team to communicate to registered providers by email/phone and post. Non-compliance addressed through the Department seeking an injunction.
Anticipated public reaction/controversy
At least some providers are likely to resist on the grounds of loss of income. Particularly in the event that some facilities are allowed to remain open to provide childcare for medical staff, for example.
Special considerations for DAs
This is devolved.
Spending implications
Legal fees associated with drafting directions and injunctions.
Powers relating to events, gatherings, and premises
Rationale for intervention
Should the medical and scientific situation dictate such a response, Government wants to ensure it has the necessary powers to enable Ministers to restrict or prohibit gatherings or events and to close premises during the coronavirus outbreak period. This would form part of a wider Government response aimed at containing and controlling the virus or facilitating the most appropriate deployment of medical or emergency personnel and resources.
Government also wishes to ensure that across the UK, the necessary enforcement regime is in place to ensure compliance and that there are also sufficient powers across the UK that enable an option to provide appropriate compensation.
The clause will ensure that there is the same provision across England, Scotland, Wales and Northern Ireland. The clause would create direction making powers which would provide Ministers with an efficient and deployable response, appropriate to the emergency and public health context in which the power would sit.
Other policy options considered
Part IIA of the Public Health (Control of Disease) Act 1984 Act could be used to control events in England and Wales. However, no similar powers exist in Scotland and Northern Ireland. The proposed clause would also allow Ministers in England and Wales to use more streamlined and efficient Direction making powers).
Other options include seeking agreement from relevant organisations to close events and gatherings voluntarily. Officials consider this to provide insufficient coverage in the event that Ministers determine it essential to prohibit one or more events or gatherings. There is no guarantee that any given organisation would agree to close or cancel an event and this approach could also create insurance and compensation issues.
Key considerations
This power is clearly a back-stop provision in the event that the medical and scientific situation require its deployment. The approach has been agreed by all four nations of the United Kingdom.
Separate consideration is being given to wider issues around compensation (and business support more generally) although there is clearly a link between Government Ministers mandating a closure or cancellation of an event or gathering and the financial impact that this would create. The proposed clause will include a discretion - but not an obligation - allowing Government to provide compensation to those affected by mandatory closures or restrictions. This will be an important part of the Government’s potential wider response.