As the expiry date of the initial Covid-19 legislation approached in September 2020 and the outbreak of the virus continued to increase globally, the Assembly adopted an amendment to the Enabling Law which allowed the power to create legislation specifically to address subsequent outbreaks of Covid-19 in Jersey to be extended to August 2021.
The Regulations also surrendered the Government’s powers to take some exceptional actions where these were now judged “unlikely to be required”, or where there was sufficient lead-in time to allow the normal democratic process to be conducted to bring new legislation forward (i.e. the minimum 6-week lodging period for a draft Law or draft Regulations before it can be debated).
The effect of the Regulations on existing or amended Covid-19 legislation took three different arrangements:
The expiry date of some Covid-19 legislation was extended to 30th April 2021, and it therefore continued to have active effect. This treatment was used in cases where legislation was still being relied upon to underpin the continuing pandemic response. Notable examples of legislation to be extended included:
Suspension of legislation not in force
Other Covid-19 legislation was amended to insert a ‘suspension provision’ which left it on the statute book as inactive until the criteria for revival were met. Where legislation was suspended, it also had its expiry date extended to 30th April 2021. This treatment was necessary because emergency legislation introduced in the early weeks of the pandemic did not have an established or standardised mechanism for de-escalating or abandoning provisions when they were no longer deemed necessary, and therefore a mix of arrangements for de-escalating (with differing tests for their re-activation) was adopted.
An example of this was the ‘failure to cease gathering’ offence in the Covid-19 (Safe Distancing) (Jersey) Regulations 2020, which was already suspended by previous Orders. Other legislation, such as the Covid-19 (Construction Work) (Jersey) Regulations 2020, remained in force but they had no effect without an Order exercising their powers. Other emergency powers rested on Orders or notices made by individual Ministers without wider consultation requirements.
The ‘Suspension’ treatment created the same standardised safeguard for these various powers, so that they could not be re-activated without consultation with the Council of Ministers and Medical Officer of Health and only if deemed necessary and proportionate.
Some Covid-19 legislation was repealed – materially this was the same as allowing it to expire on 30th September 2020, but with the acknowledgment of the States Assembly via democratic debate. Formal repeal also served to avoid confusion around the legal position for members and the public, as amended legislation would not be complicated by expired material, and the statute book would not retain expired emergency law.
A notable example of repealed legislation included the Covid-19 (Capacity and Self-Determination) (Jersey) Regulations 2020, which allowed for the imposition of ‘significant restrictions of liberty’ on a person lacking capacity during the early stages of the outbreak (for example, a person not being permitted to leave their care home unaccompanied, or their freedom of movement in the care home being limited to certain rooms or use of physical force and/or restraint if necessary, or restrictions on their social contact). These amendments were initially deemed necessary to address concerns that the risk of spreading Covid-19 would reduce the ability of healthcare staff to operate as normal within hospital facilities and care homes.
The Regulations required an ‘Extraordinary Period’ to be declared by Order before the provisions could be used; however an Order was never made because it had not been required. Given that these Regulations had potentially significant implications for individual people they were repealed, with provision to be re-enacted (potentially in an improved format) only if a second significant outbreak required this, and only with the assent of the Assembly.
A full list of the legislation affected by the Covid-19 (Amendments – Extension, Suspension And Repeal) (Jersey) Regulations 2020 can be found in Appendix 1.
October 2020-January 2021 – Second Wave and Circuit-Break
Winter 2020 saw a significant increase in the number of cases of Covid-19 in the Island as well as the emergence of new variants of the virus. In anticipation of this, and ahead of the introduction of a vaccination programme, the States Assembly adopted further new regulations under the Enabling Law, which gave the Government additional powers to limit the spread of Covid-19 in the Island in the event of a deteriorating situation. This included legislation which provided for:
a means of enforcing mask use in certain spaces;
further restrictions for workplaces and businesses serving customers;
new rules around gatherings; and
a means of allowing care homes to continue to operate lawfully in the event of staff shortages resulting from the need for staff to self-isolate following contact with someone who had tested positive for Covid-19.
This new package of Covid-19 emergency legislation consisted of enabling provisions only, and therefore any Regulations created had no effect in themselves, rather providing for Orders (or equivalent tertiary legislation) to be made which would have the direct effects that were sought after. The relevant Regulations and their effects are dealt with in turn below.
Managing Covid-19 Transmission in Indoor Public Spaces
The initial response to managing the transmission of Covid-19 in indoor public spaces had involved restricting sales and services to the public via the Covid-19 (Restricted Trading) (Jersey) Regulations 2020 (the Restricted Trading Regulations). These Regulations divided public-facing businesses into essential and non-essential categories, and closed many of those deemed non-essential.
These were replaced in May 2020 by the Covid-19 (Workplace Restrictions) (Jersey) Regulations 2020, which provided legislative measures to allow for a managed relaxation of the public health controls so that more businesses could re-open safely. The type of workplaces allowed to open, subject to specified conditions or in compliance with relevant guidance, were set out in a series of Orders made by the Minister for Health and Social Services.
However, concerns about the enforceability of these restrictions, and the extent to which they allowed for the proper collection of personal data to facilitate contact tracing gave rise to the need for updated regulations. Accordingly, in November 2020 amendments to the Covid-19 (Workplace Restrictions) (Jersey) Regulations 2020 were introduced, which introduced new rules around mask use, contact tracing and enforcement measures for businesses in the event that customers did not comply with these rules.
A significant aspect of the amendment to the Workplace Restrictions Regulations was that they allowed for the Minister for Health and Social Services to impose a ‘mask requirement’ by Order, which would oblige people aged 12 over (or some older age, if the Order specified, but no younger) to wear a mask in specified workplaces when present as a customer, unless exempted from doing so due to their health or disability.
After a spike in new Covid-19 cases in November 2020, the Minister signed an Order to make the Government’s mask use guidelines compulsory. This made mask use compulsory in supermarkets, shops, post offices, banks, on public transport, in health care settings and when using close-contact services such as hairdressers and beauticians. It also created an offence for customers without a valid excuse or exemption to enter into a workplace as a customer, upon which staff could refuse to serve them and ask them to leave.
The amended Regulations also brought into law the requirement for customers in licensed premises and some other food and drink businesses to provide contact details before receiving service. Previously, contact tracing was required by guidance only, and the amended Regulations allowed for this to be enforceable by law. Practically this meant that should a customer refuse to provide their contact details at (for example) a pub, the staff would be required not to serve them and ask them to leave.
Restrictions on Gatherings
On 24th November 2020, Regulations were introduced that would give the Minister for Health and Social Services powers to restrict gatherings as a means of managing the escalating numbers of Covid-19 cases in the Island. Gatherings had been the subject of guidance since the lockdown and safe distancing arrangements were lifted, but this had not been enforceable in law.
The Covid-19 (Gatherings) (Jersey) Regulations 2020 allowed for the creation of Orders (called Gathering Control Orders) to be made to place a limit on the size and characteristics of gatherings allowed. These restrictions granted powers to enforcement officers to disperse gatherings over the permitted size or outside of the permitted characteristics, and to prevent people from returning to that location for a specified time (no longer than three hours).
A ‘hard minimum’ was included in these Regulations that precluded any limitations on gatherings of fewer than 10 people. This was included after a review of the effectiveness and enforceability of similar legislation in other jurisdictions. Similarly, the Regulations provided that no restriction could be placed on children who were younger than 12 years old (i.e. before their twelfth birthday).
Subsequently, on 11th December 2020, the Minister for Health and Social Services (on advice from the Medical Officer of Health and Council of Ministers) signed the Covid-19 (Gathering Control) (Jersey) Order 2020 which maintained that no gatherings of more than 10 people could take place at any time, indoors, including private homes and gardens. Outdoor gatherings in public places were limited to a maximum of 20 people.
In light of a significant rising number of active cases in December 2020, the Minister made an amendment to this Order, which applied a rule of 10 to all gatherings, both indoors and outdoors. All non-essential shops and indoor recreation or cultural facilities were ordered to close from 6pm on Christmas Eve and to remain closed until at least 11th January 2021.
Staff Shortages in Care Homes
A further aspect of the Phase 2 legislation saw the introduction of the Covid-19 (Regulation of Care – Standards And Requirements) (Jersey) Regulations 2020, which allowed the Minister for Health and Social Services to put in place new Orders to enable care home providers to operate with reduced staff during Covid-19 without breaking the Law. These Regulations responded particularly to the introduction of mass testing in the care sector and the high likelihood of care workers needing to self-isolate whilst awaiting the result of Covid-19 tests, thereby potentially leaving care services short-staffed.
January-April 2021 – Island Reconnection Roadmap
Following an initial easing of some restrictions in February 2021, the Government subsequently announced a 7-stage Island Reconnection Roadmap on 3rd March 2021 that would see further specific restrictions partially lifted in the coming months, so long as Covid-19 cases remained under control.
As part of the continued legislative response to the ongoing pandemic, the Assembly adopted a further extension to the Enabling Law in April 2021, which extended the powers therein to 1st April 2022. However, in recognition of the fact that retaining some of the unprecedented powers created by earlier legislation was not immediately necessary given the vaccination rollout offering increased protection for Islanders, the Assembly adopted the Covid-19 (Amendments – Extension And Suspension) (Jersey) Regulations 2021 that variously sought to extend or suspend aspects of the original legislative response.
Notably, the Covid-19 (Screening, Assessment and Isolation) (Jersey) Regulations 2020 were extended as they were still required to give effect to the Government’s Safer Travel policy, providing the mechanism by which inbound travellers may be required to self-isolate on arrival and by which self-isolation was enforced. They also underpinned the screening and assessment programme and provided powers to make Restricted Movement Orders which would in effect ‘lock down’ the Island again should this be deemed necessary.
However, an amendment to these Regulations was adopted which ensured that the Order-making power associated with it could only be activated by the Council of Ministers, a higher test for activation in recognition of the drastic restrictions on the normal life of Islanders that lockdown imposes.
March - June 2021: Partial Suspension of Covid-19 Regulations
Stages 5-7 of the Island Reconnection plan saw many of the powers contained in the suite of Covid-19 emergency legislation suspended, as the vaccination programme continued to reach more of the Island’s population, and case numbers remained low. This was achieved by the passing of the Covid-19 (Amendments – Extension and Suspension) (Jersey) Regulations 2021 in April 2021, which allowed for some of the emergency legislation to remain on the statute books but in a suspended form due to not having an activating Order from the Minister for Health and Social Services in place.
Some Regulations continued to remain in force. The Covid-19 (Screening, Assessment and Isolation) (Jersey) Regulations 2020, which underpinned the Safer Travel Policy, were extended to 31st October 2021. However, the provision to make a ‘lockdown’ Order was amended so that it could only be activated after consultation with the Council of Ministers, as well as the Medical Officer for Health.
Similarly, the Covid-19 (Workplace Restrictions) (Jersey) Regulations 2020 were extended, which gave powers to the rules around the wearing of face masks in retail premises. Legislation affecting group gatherings (the Covid-19 (Gatherings) (Jersey) Regulations 2020) were also extended, although this was due to be revised in June 2021 to allow large events to reopen.
Appendix 1: Summary of (and subsequent treatment of) Covid-19 Emergency Legislation from March – September 2020
Draft Covid-19 (Amendments – Extension, Suspension and Repeal) (Jersey) Regulations 202- (P.103/2020)
|Summary of the amending legislation and its treatment Reg No ||Legislation amended ||Amended by ||Treatment of amendments |
|1 ||Covid-19 (Screening, Assessment and Isolation) (Jersey) Regulations 2020 ||Stand-alone ||EXTEND|
|2 ||Covid-19 (Safe Distancing) (Jersey) Regulations 2020 ||Stand-alone ||SUSPEND|
|3 ||Covid-19 (Emergency Provisions – Courts) (Jersey) Regulations 2020 ||Stand-alone ||EXTEND|
|4 ||Covid-19 (Schools and Day Care of Children) (Jersey) Regulations 2020 ||Stand-alone ||SUSPEND|
|5 ||Covid-19 (Workplace Restrictions) (Jersey) Regulations 2020 ||Stand-alone ||EXTEND|
|6 ||Covid-19 (Construction Work) (Jersey) Regulations 2020 ||Stand-alone ||EXTEND|
|7 ||Control of Housing and Work (Exemptions) (Jersey) Order 2013 ||Control of Housing and Work (Exemptions) (Covid-19 – Temporary Amendment) (Jersey) Order 2020 ||REPEAL |
|8 ||Residential Tenancy (Jersey) Law 2011 ||Covid-19 (Residential Tenancy) (Temporary Amendment of Law) (Jersey) Regs 2020 ||REPEAL |
|9 ||Medical Practitioners (Registration) (General Provisions) (Jersey) Order 2014 ||Medical Practitioners (Registration) (General Provisions) (Covid-19 – Temporary Amendments) (Jersey) Order 2020 ||REPEAL |
|10 ||Capacity and Self-Determination (Jersey) Law 2016 amended ||Covid-19 (Capacity and Self-Determination) (Jersey) Regs 2020 ||REPEAL |
|11 ||Covid-19 (Mental Health) (Jersey) Regulations 2020 ||Stand-alone ||REPEAL |
|12 ||Mental Health (Jersey) Law 2016 amended ||Covid-19 (Mental Health) (Jersey) Regs 2020 ||REPEAL |
|13 ||Regulation of Care (Jersey) Law 2014 amended |
Regulation of Care (Amendment of Law) (Covid-19 - Temporary Amendment) (Jersey) Regs 2020
Regulation of Care (Amendment of Law) (Covid-19 - Temporary Amendment No. 2) (Jersey) Regs 2020
|14 ||Regulation of Care (Standards and Requirements) (Jersey) Regulations 2018 amended ||Regulation of Care (Standards and Requirements) (Covid-19 - Temporary Amendments) (Jersey) Regs 2020||REPEAL |
|15 ||Statutory Nuisances (Jersey) Regulations 2017 amended ||Statutory Nuisances (Amendment) (Jersey) Regulations 2020 ||EXTEND|
|16 ||Wills and Successions (Jersey) Law 1993 amended ||Covid-19 (Signing of Instruments) (Jersey) Regs 2020 ||EXTEND|
|17 ||Covid-19 (Signing of Instruments) (Jersey) Regulations 2020 ||Stand-alone ||EXTEND|
|18 ||Cremation (Suspension and Modification of Regulations – Covid-19) (Jersey) Regulations 2020 ||Stand-alone ||SUSPEND|
|19 ||Cremation (Suspension and Modification of Regulations – Covid-19) (No. 2) (Jersey) Regulations 2020 ||Stand-alone ||SUSPEND|
|20 ||Civil Partnership (Jersey) Law 2012 amended |
Covid-19 (Civil Partnership and Marriage) (Jersey) Regs 2020
Covid-19 (Civil Partnership and Marriage No. 2) (Jersey) Regs 2020
|21 ||Civil Partnership (Approved Premises) (Jersey) Order 2012 amended ||Covid-19 (Civil Partnership and Marriage No. 2) (Jersey) Regulations 2020 |
|22 ||Civil Partnership (Forms, Registration and Fees) (Jersey) Order 2012 amended ||Covid-19 (Civil Partnership and Marriage) (Jersey) Regulations 2020 ||EXTEND|
|23 ||Marriage and Civil Status (Jersey) Law 2001 amended |
Marriage and Civil Status (Amendment of Law) (Covid-19 – Temporary Amendment) (Jersey) Regs 2020
Marriage and Civil Status (Amendment of Law No. 2) (Covid-19 – Temporary Amendment) (Jersey) Regs 2020
Covid-19 (Civil Partnership and Marriage) (Jersey) Regs 2020
Covid-19 (Civil Partnership and Marriage No. 2) (Jersey) Regs 2020
|24||Marriage and Civil Status (Jersey) Order 2018 amended |
Covid-19 (Civil Partnership and Marriage) (Jersey) Regulations 2020
Covid-19 (Civil Partnership and Marriage No. 2) (Jersey) Regulations 2020