Explanatory Memorandum to the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 16) Regulations 2021


This Explanatory Memorandum has been prepared by the Welsh Government and is laid before Senedd Cymru in conjunction with the above subordinate legislation and in accordance with Standing Order 27.1.


Minister’s Declaration


In my view, this Explanatory Memorandum gives a fair and reasonable view of the expected impact of the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 16) Regulations 2021.



Mark Drakeford

First Minister


27 August 2021





1.    Description


The Regulations amend the Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020 (“the principal Regulations”).


2.    Matters of special interest to Senedd Cymru


These Regulations are made under the emergency procedure set out in section 45R of the Public Health (Control of Disease) Act 1984 (c. 22) (“the 1984 Act”). The Regulations are made without a draft having been laid and approved by the Senedd. It is the opinion of the Welsh Ministers that, by reason of urgency, it is necessary to make the Regulations without a draft being so laid and approved so that public health measures can be taken in order to quickly respond to the threat to human health from coronavirus.  The Welsh Ministers are of the opinion that the restrictions and requirements set out in the principal Regulations, as amended by these Regulations, are necessary and proportionate as a public health response to the current threat posed by coronavirus.


European Convention on Human Rights


Whilst the principal Regulations, as amended by these Regulations, engage individual rights under the Human Rights Act 1998 and the European Convention on Human Rights, the Government considers that they are justified for the purpose of preventing the spreading of infectious diseases and/or the interference is permitted on the basis that it is in pursuit of a legitimate aim, namely of protecting public health, and are proportionate.


Article 5 (right to liberty), Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion), Article 11 (freedom of assembly and association) and Article 1 of the First Protocol (protection of property) are engaged by the principal Regulations.


Each of these is a qualified right, which permits the Welsh Ministers to interfere with the exercise of the rights if necessary in a democratic society in the interests of public safety or for the protection of health.  All such restrictions and requirements must be justified on the basis that they are in pursuit of a legitimate aim, namely of protecting public health, and are proportionate. Any interference with these rights also needs to be balanced with the State’s positive obligations under Article 2 (right to life). The adjustment of the restrictions and requirements under the principal Regulations by these Regulations is a proportionate response to the spread of coronavirus.  It balances the need to maintain an appropriate response to the threat posed by coronavirus against the rights of individuals and businesses, in a manner which remains proportionate to the need to reduce the rate of transmission of the coronavirus, taking into account the scientific evidence.


These amending Regulations reduce the extent in which the restrictions and requirements under the principal Regulations interfere with those individual rights. 


3. Legislative background


The 1984 Act, and regulations made under it, provide a legislative framework for health protection in England and Wales. These Regulations are made under sections 45C(1) and (3)(c), 45F(2) and 45P(2) of the 1984 Act.  Further information on these powers is set out in the Explanatory Memorandum to the principal Regulations.


4. Purpose and intended effect of the legislation


These Regulations are made in response to the threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) which causes the disease known as COVID-19.


The principal Regulations made on 18 December 2020 set out restrictions and requirements which will apply to four different Alert Levels with the determination of applicable Alert Levels as set out in the Coronavirus Control Plan. This plan was last updated on 16 July 2021.   


The principal Regulations are now amended, with effect from the beginning of 28 August 2021, as follows:


·         it will no longer be a requirement for persons to wear a face-covering when attending a solemnisation of a marriage, formation of a civil partnership or alternative wedding ceremony. Those in attendance will still be expected to follow reasonable measures that the person responsible for a regulated premise or organising the event have put in place to minimise the risk of exposure to coronavirus.


·         clarify that in the reasonable measures (listed at sub-paragraph (a)(ii) under Step 3 of regulation 16(1) of the principal Regulations), the reference to preventing “any person who has had close contact in the previous 10 days with a person who has tested positive for coronavirus” is a reference to only those close contacts who are required to isolate in accordance with regulation 8(2) of the principal Regulations


·         the requirement on those responsible for election campaigning to take reasonable measures to minimise the risk of exposure to, or spread of, coronavirus, is amended so that it more closely reflects similar requirements placed on persons responsible for premises;


·         Part 6 of the principal Regulations, which provides for circumstances in which schools may be required to be open when they may otherwise be closed to allow children of critical workers or children who are vulnerable to attend, is omitted.


5. Consultation


Given the serious and imminent threat arising from coronavirus and the need for an urgent public health response, there has been no public consultation in relation to these Regulations.


6. Regulatory and other impact assessments  


A regulatory impact assessment has not been prepared in relation to these Regulations due to the need to put them in place urgently to deal with a serious and imminent threat to public health. However, a summary impact assessment was prepared and considered as part of the 21 day coronavirus review process in order to inform the decisions made. The summary impact assessment will be published as soon as practicably possible.