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In spite of recent communication from the Government, I have not seen any statutory instruments pass Parliament referencing Tier 4.

Some speculation implies a vote will take place in January, but as of this time Parliament is in recess.

Is Tier 4 just guidance, and if so, could it retroactively be made Law?

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Are UK Tier 4 rules law?

Yes.

The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (SI 2020/1374) has been amended by SI 2020/1611.

Unfortunately, the amendment is only available as pdf at the moment and I can't copy-and-paste it on my phone for you.

SI 2020/1374 and all subsequent amendments may be found here...

https://www.legislation.gov.uk/primary+secondary?title=Coronavirus%20all%20tiers

ETA:

The Introductory Text to SI 2020/1374 states:

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 45C(1), (3)(c), (4)(b), (4)(d), 45F(2) and 45P of the Public Health (Control of Disease) Act 1984

https://www.legislation.gov.uk/ukpga/1984/22/contents

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    Thanks. Do you know by which primary legislation this is authorised? – Alexandre Cassagne Dec 20 '20 at 12:14
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    @Alexandre Cassagne I've added the link to the 1984 Act. Hope this helps. – Rock Ape Dec 20 '20 at 12:54
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    @RickApe Note that statutory instruments needs to be referred to by both year and number, as the numbering restarts every year. Hence the relevant designation is S.I. 2020/1611. – Steve Melnikoff Dec 20 '20 at 16:32
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    @Steve Melnikoff thanks, sometimes my shorthand gets the better of me! – Rock Ape Dec 20 '20 at 16:43
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    But note that not everything in the guidance is in the law. There’s no legal restriction on movement between different tiers, for example (if in tier 4 you have to stay home and therefore in your tier unless you have a reasonable excuse, but can move between tiers if you have such an excuse). – Mike Scott Dec 21 '20 at 16:37
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In spite of recent communication from the Government, I have not seen any statutory instruments pass Parliament referencing Tier 4.

The statutory instrument (SI) in question is the Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020 (S.I. 2020/1611).

Much of this is framed as an amendment to the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (S.I. 2020/1374).

Like almost all of the SIs used during this pandemic to place restrictions on the public, it invokes section 45R of the Public Health (Control of Disease) Act 1984, which states that:

The instrument may be made without a draft having been laid and approved [...] if the instrument contains a declaration that the person making it is of the opinion that, by reason of urgency, it is necessary to make the order without a draft being so laid and approved.

An SI made in this way must be approved by both houses of Parliament within 28 days (excluding any time both houses aren't sitting for more than 4 days).

Some speculation implies a vote will take place in January, but as of this time Parliament is in recess.

Indeed. Because section 45R was used for this SI, both houses must vote on it in January, otherwise it will lapse after that 28 days. Note also that, under subsection (5), if either house votes to reject it, the SI still has effect up to the end of the day on which it is rejected.

Is Tier 4 just guidance, and if so, could it retroactively be made Law?

It is law, as specified in the above SI. As for retroactivity: although in theory Parliament could do that (and very occasionally has), ex post facto laws are generally regarded as a bad idea.


A complete list of UK Coronavirus legislation can be found on a dedicated page at legislation.gov.uk, and (for SIs specifically) the Hansard Society's Coronavirus Statutory Instruments Dashboard.

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    Thank you for you detailed response. – Alexandre Cassagne Dec 21 '20 at 8:26
  • I believe these regulations are made under section 45C(1) of the Public Health Act, not 45R, and thus need no Parliamentary vote at all. “The appropriate Minister may by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere).” – Mike Scott Dec 21 '20 at 16:45
  • @MikeScott: the most recent SI is made under "sections 45C(1), (3)(c), (4)(b) and (4)(d), 45F(2) and 45P" of the Act. However, that's not what I said; I state above that the SI invokes section 45R, which requires a statement in the introduction to that effect. – Steve Melnikoff Dec 21 '20 at 16:48
  • @MikeScott: in addition, SIs made under section 45C do require both houses to approve them before coming into force; see section 45Q, especially subsections (2) and (4). The wording is far from transparent, but I believe that's what it means! – Steve Melnikoff Dec 21 '20 at 16:50

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