Overview

This Briefing Paper provides a summary of the key emergency legislation that was adopted by the States Assembly from the outbreak of Covid-19 in Jersey in March 2020 to the end of April 2021. 

Introduction

From the outbreak of Coronavirus (Covid-19) in early 2020 until the end of April 2021, the States Assembly adopted over 30 pieces of Covid-19 related legislation in order to respond to and contain the transmission of the virus in Jersey. This legislation has been used at different points to control a variety of different aspects of daily life, including keeping people in their homes, limiting the size and location of gatherings, restricting off-Island travel, requiring people to wear face-coverings in shops and on public transport, and restricting (or even closing) places of work, education and recreation. 

A variety of statutory instruments, or legislation, has been employed to achieve these measures:

• Laws – adopted by the States Assembly and then approved by the Sovereign through the Privy Council (Royal Assent);

• Regulations – adopted by the States Assembly and effective without Royal Assent, but only under the provisions of an overarching Law; and

• Orders – issued on the authority of Ministers of the Government of Jersey, and not requiring States Assembly approval. 

In addition to legislation brought forward by the Government and approved by the States, a number of policies containing guidance have been used by the Government to address the Covid-19 outbreak (for example, the Safer Travel Policy, the Safe Exit Framework and the Island Reconnection Roadmap). 

This Briefing Paper focuses on the legislation introduced in Jersey during discrete periods:

• March to April 2020;

• May to September 2020;

• September 2020;

• October 2020 to January 2021; and 

• January to April 2021.

March-April 2020 – First Wave and Lockdown

Unlike the other Crown Dependencies, Jersey did not declare a state of emergency at the outbreak of the pandemic, an act which would have allowed the Emergencies Council extensive powers to legislate without requiring the assent of the States Assembly. Therefore, Covid-19 legislation had to be tabled and debated by the Assembly in the usual manner, which presented a challenge in responding to rapidly changing circumstances and the requirements to maintain physical distancing. 

The Privileges and Procedures Committee (PPC) lodged an amendment to Standing Orders on 18th March 2020 which allowed the Assembly to meet virtually via Microsoft Teams and for States members to participate and vote in subsequent debates within the existing rules. 

Triennial Regulations and the ‘Enabling Law’

Once the Covid-19 (Enabling Provisions) (Jersey) Law 2020 (the Enabling Law) was approved by the States Assembly on 27th March 2020, the legislative focus turned to the creation of a framework of regulations that would allow for a rapid response to changing circumstances and provide a flexible means of controlling the spread of Covid-19 in the Island. Powers to make subordinate legislation under other Laws were also employed. Much (but not all) of the Covid-19 emergency legislation was initially time-limited to expire on 30th September 2020, partly in recognition of the fact that adopting legislation granting the Government (i.e. Ministers) extensive and unprecedented powers to restrict movement and individual freedoms should be subject to the continuing agreement of the States Assembly; but also in the anticipation that the peak period of Covid-19 would have passed by this date.

This initial legislative response to the outbreak of Coronavirus made use of established Triennial arrangements. Triennial Regulations are used where there is an urgent need to make regulations without sufficient time to enact or amend a law to give power to make such regulations (especially given that it may take up to 6 months for a law to be approved by the Privy Council). They may be made by the States Assembly under an Order in Council dated 14 April 1771 (see Appendix 1 for further details). Triennial Regulations expire after 3 years. 

 One example of Triennial Regulations pertaining to Covid-19 were the Covid-19 (Screening, Assessment and Isolation) (Jersey) Regulations 2020.

Amendment to the Public Finances Law

One of the first acts of the Assembly in response to the outbreak of the pandemic in Jersey was to approve an Amendment to the Public Finances Law on 24th March 2020, which made provision for the Minister for Treasury and Resources to make available sufficient funds to support Islanders and businesses on a ‘timely basis’ during a period of disruption to normal business activity.

The Regulations provided the Minister with powers to withdraw amounts from the Consolidated Fund and other States funds, under Article 24 of the Public Finances (Jersey) Law 2019 (the Public Finances Law), either because a state of emergency had been declared or because there existed an immediate threat to the health and safety of Islanders, or the stability of Jersey’s economy or the environment. 

In particular, this included the ability to transfer an amount from the Stabilisation Fund to the Consolidated Fund and the subsequent authorisation to spend it; to increase the amount available for emergency expenditure from £10 million (previously available in the Public Finances Law) to £100 million without amending the Government Plan; and to introduce a number of ways in which the Minister could increase available funding (including borrowing and making transfers from the Strategic Reserve Fund).

The powers introduced in these Regulations applied “for the duration of the Covid-19 pandemic” and also included the requirement to report back to the Assembly within 6 months on transfers made under these Regulations. The Minister subsequently presented R.96/2020 in September 2020 which reported:

• An additional £99.99 million of approvals from the Consolidated Fund; 
• Approval of a Revolving Credit Facility of £500 million;
• Transfer of £28 million from the Stabilisation Fund to the Consolidated Fund and approval of spending from the General Reserve; and
• Transfer of £50 million from the Stabilisation Fund to the Consolidated Fund and approval of spending from the General Reserve.

R.96/2020 also proposed an extension of these powers until 31st of December 2020, after which funding provision for the financial effects of the Covid-19 pandemic would be made in the Government Plan 2021-2024.

Controlling the Initial Spread of Covid-19: ‘Lockdown’ Measures 

Initially the focus of Covid-19 emergency legislation was on controlling the impact of Covid-19, as the number of cases began to increase across the Island. For example, the COVID-19 (Screening, Assessment and Isolation) (Jersey) Regulations 2020 empowered the police to remove people from public areas, enforce self-isolation, testing and screening, and detain those who are potentially infected. Under pre-existing legislation, the Government only had the ability to advise members of the public to self-isolate.

These Regulations also enabled the Minister for Health and Social Services, by Order, to prohibit members of the public going to or remaining in public places for a period of time (i.e. to enforce an Island-wide ‘lockdown’). The Minister subsequently made the Covid-19 (Restricted Movement) (Jersey) Order 2020 on 29th March 2020 which introduced a lockdown starting on Monday 30th March 2020, initially for a period of 2 weeks. Islanders were required to stay at home other than for up to 2 hours for specific purposes unless they were employed in an essential function, and were permitted to travel to any part of the Island for exercise and essential shopping (within a 2-hour limit). 

This Order was extended twice to 11th May 2020, when the Government introduced the ‘Safe Exit Framework’ to manage Jersey’s exit from lockdown.

School Closures

The Minister for Education was previously only authorised to direct the closures of Government of Jersey provided schools, children’s day care premises and private schools via a limited set of proscribed circumstances which were not designed for emergency situations such as a pandemic. Therefore the Covid-19 (Schools and Day Care of Children) (Jersey) Regulations 2020 were adopted by the Assembly on 27th March 2020, containing an express provision that allowed the Minister to direct the closure of schools and day care premises during the Covid-19 outbreak. These Regulations also ensured that home-learning provision was continued throughout the period of closures, where required.

The Minister subsequently signed a Ministerial Decision on 3rd April 2020 to keep schools and day care centres closed until 1st May at the earliest, except for essential workers' children and some vulnerable children. Further extensions to closures were made by Ministerial Decision. A partial and phased re-opening of some schools, colleges and nurseries was carried out from 8th June 2020 based on medical advice from the Scientific and Technical Advisory Cell (STAC).

Eviction Protection, ‘Virtual’ Signing of Wills and Temporary Care Homes 

In addition, a number of pieces of legislation were adopted and enacted that sought to mitigate the collateral impact of the ‘Lockdown’ measures on public health, including:

• The Covid-19 (Residential Tenancy) (Temporary Amendment of Law) (Jersey) Regulations 2020, designed to prevent tenants from being evicted due to financial hardship caused by coronavirus, including a suspension on rent increases.

• The Covid-19 (Signing of Instruments) Regulations 2020, which made provision for wills to be signed/witnessed via audio/video link as opposed to face-to-face so that people could continue to manage their personal affairs.

• The Regulation of Care (Amendment of Law) (Covid-19 - Temporary Amendment) (Jersey) Regulations 2020 which provided powers to exempt temporary, emergency care facilities from regulation by the Care Commission (e.g. to allow for a temporary care facility to be created whilst an existing facility was shut for deep cleaning). 

May-September 2020 – The ‘Safe Exit Framework’

In May 2020 the legislative focus shifted to support the ‘safe exit framework’ (as adopted by the Assembly on 20th May 2020) and to assist the Island in navigating out of the ‘lockdown’ conditions of the initial legislative response. Regulations were adopted by the Assembly that could be modulated depending on an increase or decrease in the number of cases of Covid-19; that allowed for a controlled reopening of workplaces; and that also allowed greater freedom of movement for Islanders (albeit with restrictions). These included:

• The Covid-19 (Safe Distancing) (Jersey) Regulations 2020, which established powers to provide for two metres distancing in public. These Regulations replaced the Restricted Movement Orders made under the Covid-19 (Screening, Assessment and Isolation) (Jersey) Regulations 2020 with a less restrictive regime that did not require people to limit their time away from home to any given duration or require people to stay away from home for any particular reason.

• The Covid-19 (Workplace) (Jersey) Regulations 2020 which established powers to provide for risk-assessed re-opening of places of work subject to restrictions/conditions. These Regulations were designed to support businesses and allow them to resume trading or re-open in a controlled way, and demonstrate a shift of legislative focus away from measures concerned with mitigating the impact of Covid-19 on individuals and services, and moving towards controls aimed at businesses specifically. 

September 2020 – Extending Covid-19 Legislation

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.

In addition, the States approved the Covid-19 (Amendments – Extension, Suspension And Repeal) (Jersey) Regulations 2020 which variously suspended, repealed and extended 24 pieces of domestic legislation that had been brought forward and adopted in response to the outbreak of Covid-19 since March 2020. 

These Regulations granted the Government continuing powers to respond quickly and to legislate appropriately in the case of further outbreaks, but also limited the Government’s access to powers that interfered with the lives of citizens or bypassed normal safeguards unless it could be clearly established that these powers were absolutely necessary. 

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:

Extension

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:

• The Covid-19 (Screening, Assessment and Isolation) (Jersey) Regulations 2020, which were necessary to enact the Government’s “Safer Travel” Policy; and

• The Covid-19 (Workplace Restrictions) (Jersey) Regulations 2020, as Orders under these Regulations still served to impose controls on a limited number of businesses.

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.

Repeal

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.

Mask Use 

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. 

Contact Tracing

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. 

The legal restrictions around mask wearing included as part of the Covid-19 (Workplace Restrictions) (Jersey) Regulations 2020 were extended on the basis of a recommendation that suspending this requirement had not yet been recommended by the Medical Officer of Health or by S.T.A.C; the same treatment was applied to the Covid-19 (Safe Distancing) (Jersey) Regulations 2020, retaining the requirement for 2 metre distancing. 

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)