From 1 pm on 26 March 2020 measures to close premises and businesses have been imposed by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the 2020 Regulations’) made under the Public Health (Control of Disease Act 1984. The 2020 Regulations expire at the end of 25 September 2020, an event that does not affect the validity of anything done before they expire.
The 2020 Regulations close premises where food and drink is sold for consumption on the premises, close other businesses, and restrict the activities of further businesses. They impose severe restrictions, as well as containing measures for enforcement, fixed penalty notices, and connected criminal offences. The scope of the powers is understandable given the scale of the crisis. Given that they are so far-reaching, scrutiny of their exercise will be important; the society that is to be preserved is one that values life, well-being, and the rule of law.
The purpose of this post is to present these new powers in digestible form.
The Emergency Period
The ‘emergency period’ started when the Regulations came into force and ends in relation to a restriction or requirement imposed on the day and at the time specified in a direction published by the Secretary of State terminating the requirement or restriction.
The Secretary of State must review the need for restrictions and requirements Regulations at least once every 21 days, with the first review being carried out by 16 April 2020.
As soon as the Secretary of State considers that any restrictions or requirements are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England with the coronavirus, she must publish a direction terminating that restriction or requirement.
A direction published under this regulation may terminate any one or more requirement or restriction; or terminate a requirement or restriction in relation to a specified business or service or a specified description of business or service.
A ‘person’ responsible for carrying on a business” includes the owner, proprietor, and manager of that business.
‘Vulnerable person’ includes:
- any person aged 70 or older
- any person who is pregnant
The term also includes any person under 70 who has an underlying health condition, including but not limited to:
- Chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease, emphysema or bronchitis
- Chronic heart disease, such as heart failure
- Chronic kidney disease
- Chronic liver disease, such as hepatitis
- Chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis, a learning disability or cerebral palsy
- Problems with the spleen, such as sickle cell disease or removal of the spleen
- A weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy
- Being seriously overweight, with a body mass index of 40 or above
Requirement to Close Premises and Businesses during the Emergency Period
Food and Drink Businesses
Certain measures apply to the following food and drink businesses:
- Restaurants, including restaurants and dining rooms in hotels or members’ clubs
- Cafes, including workplace canteens (NB workplace canteens may remain open where there is no practical alternative for staff at that workplace to obtain food) but excluding: (1) cafes or canteens at a hospital, care home or school; (2) canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence; and (3) services providing food or drink to the homeless
- Bars, including bars in hotels or members’ clubs
- Public houses.
A person responsible for carrying on such a business must:
- during the emergency period: (1) close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and (2) cease selling food or drink for consumption on its premises; or
- if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premisesduring the emergency period.
Food or drink sold by a hotel or other accommodation as part of room service is not to be treated as being sold for consumption on its premises.
As regards a requirement to cease selling food and drink on a premisis, an area adjacent to the premises of the business where seating is made available for customers of the business (whether or not by the business) is to be treated as part of the premises of that business.
The Closure of Other Businesses
Certain businesses are to be closed:
- Bingo halls
- Concert halls
- Museums and galleries
- Betting shops
- Nail, beauty, hair salons and barbers
- Massage parlours
- Tattoo and piercing parlours
- Skating rinks
- Indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities
- Funfairs (whether outdoors or indoors)
- Playgrounds, sports courts and outdoor gyms
- Outdoor markets (except for stalls selling food)
- Car showrooms
- Auction Houses.
A person responsible for carrying on such a business or providing such a service must cease to carry on that business or to provide that service during the emergency period.
However, in respect of Cinemas, Theatres, Bingo Halls, Concert Halls, or Museums and Galleries, that does not prevent the use of premises used for their businesses or services to broadcast a performance to people outside the premises, whether over the internet or as part of a radio or television broadcast.
In addition, any suitable premises used for the businesses or services listed may be used to host blood donation sessions.
If a food or drink business listed, or any other business listed, forms part of a larger business, the person responsible for carrying on that larger business complies with the requirement to cease selling food on the premises and to close the premises of that business, if it closes down that business.
Further Restrictions and Closures during the Emergency Period
Trading via media
Aside from in respect of the businesses listed below, a person responsible for carrying on a business of offering goods for sale or for hire in a shop, or providing library services must, during the emergency period:
- cease to carry on that business or provide that service except by making deliveries or otherwise providing services in response to orders received: (1) through a website, or otherwise by on-line communication: (2) by telephone, including orders by text message; or (3) by post
- close any premises which are not required to carry out its business or provide its services as permitted above
- cease to admit any person to its premises who is not required to carry on its business or provide its service as permitted above
NB This does not apply to any business which provides hot or cold food for consumption off the premises.
This list of businesses in respect of which this restriction does not apply (i.e. they can continue to supply goods and services direct from their premises) is as follows:
- Food retailers, including food markets, supermarkets, convenience stores and corner shops
- Off licenses and licensed shops selling alcohol (including breweries)
- Pharmacies (including non-dispensing pharmacies) and chemists
- Homeware, building supplies and hardware stores
- Petrol stations
- Car repair and MOT services
- Bicycle shops
- Taxi or vehicle hire businesses
- Banks, building societies, credit unions, short term loan providers and cash points
- Post offices
- Funeral directors
- Laundrettes and dry cleaners
- Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health
- Veterinary surgeons and pet shops
- Agricultural supplies shop
- Storage and distribution facilities, including delivery drop off or collection points, where the facilities are in the premises of a business listed above
- Car parks
- Public toilets
A person responsible for carrying on a business consisting of the provision of holiday accommodation, whether in a hotel, hostel, bed and breakfast accommodation, holiday apartment, home, cottage or bungalow, campsite, caravan park or boarding house, must cease to carry on that business during the emergency period.
However, a person may continue to carry on their business and keep any premises used in that business open:
- to provide accommodation for any person, who: (1) is unable to return to their main residence; (2) uses that accommodation as their main residence; (3) needs accommodation while moving house; or (4) needs accommodation to attend a funeral;
- to provide accommodation or support services for the homeless
- to host blood donation sessions, or
- for any purpose requested by the Secretary of State, or a local authority
Places of Worship
A person who is responsible for a place of worship must ensure that, during the emergency period, the place of worship is closed, except for the following uses:
- for funerals
- to broadcast an act of worship, whether over the internet or as part of a radio or television broadcast, or
- to provide essential voluntary services or urgent public support services (including the provision of food banks or other support for the homeless or vulnerable people, blood donation sessions or support in an emergency)
A person who is responsible for a community centre must ensure that, during the emergency period, the community centre is closed except where it is used to provide essential voluntary activities or urgent public support services (including the provision of food banks or other support for the homeless or vulnerable people, blood donation sessions or support in an emergency).
Crematoria and Burial Grounds
A person who is responsible for a crematorium or burial ground must ensure that, during the emergency period, the crematorium is closed to members of the public, except for funerals or burials.
If a business required to trade via media or an accommodation business forms part of a larger business, the person responsible for carrying on the larger business complies with the requirements as regards businesses trading via media or accommodation businesses to cease to carry on its business if it ceases to carry on that business.
Who may enforce the requirements and what may they do?
For the purposes of closing businesses and premises, and further restrictions on businesses and premises, ‘relevant person’ means:
- a constable
- a police community support officer
- a person designated by a local authority
- a person designated by the Secretary of State
A relevant person may take such action as is necessaryto enforce any requirement imposed.
A relevant person may give a prohibition notice to a person if the relevant person reasonably believes that:
- the person is contravening a requirement, and
- it is necessary and proportionate to give the prohibition notice for the purpose of preventing that person from continuing to contravene the requirement.
Criminal Offences and Penalties
A person commits an offence, who without reasonable excuse contravenes a requirement (including a restriction).
A person who obstructs, without reasonable excuse, any person carrying out a function in the 2020 Regulations commits an offence.
A person who, without reasonable excuse, contravenes a prohibition notice given by a relevant person under enforcement powers (see above) commits an offence.
An offence under this regulation is punishable on summary conviction by a fine.
If an offence committed by a body corporate is proved:
- to have been committed with the consent or connivance of an officer of the body, or
- to be attributable to any neglect on the part of such an officer,
the officer (as well as the body corporate) is guilty of the offence and liable to be prosecuted and proceeded against and punished accordingly.
‘Officer’, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate.
For the purposes of these offences, police powers to arrest a person without a warrant extent to situations where the constable has reasonable grounds for believing that in order to maintain public health or maintain public order it is necessary to arrest the person in question.
Proceedings for an offence under these Regulations may be brought by the Crown Prosecution Service (CPS) and any person designated by the Secretary of State
Fixed penalty notices
Who may issue a fixed penalty notice?
For the purposes of closing businesses and premises, and further restrictions on businesses and premises, ‘authorised person’ means:
- a constable
- a police community support officer
- a person designated by the Secretary of State
- a person designated by the relevant local authority
Liability for a fixed penalty notice
An authorised person may issue a fixed penalty notice to anyone that the authorised person reasonably believes:
- has committed an offenceunder the 2020 Regulations
- is over the age of 18
A fixed penalty notice is a notice offering the person to whom it is issued the opportunity of discharging any liability to convictionfor the offence by payment of a fixed penalty to a local authority specified in the notice.
The local authority specified in the notice must be the local authority (or as the case may be, any of the local authorities) in whose area the offence is alleged to have been committed (‘the relevant local authority’).
The effect of a fixed penalty notice
Where a person is issued with a notice under this regulation in respect of an offence:
- no proceedings may be taken for the offence before the end of the period of 28 days following the date of the notice
- the person may not be convicted of the offence if the person pays the fixed penalty before the end of that period
The content of a fixed penalty notice
A fixed penalty notice must:
- give reasonably detailed particulars of the circumstances alleged to constitute the offence
- state the period during which proceedings will not be taken for the offence (see above)
- specify the amount of the fixed penalty
- state the name and address of the person to whom the fixed penalty may be paid
- specify permissible methods of payment
The amount of a fixed penalty
For the first occasion a person receives a fixed penalty notice, the amount specified under paragraph be £60. Such a fixed penalty notice must specify that if £30 is paid before the end of the period of 14 days following the date of the notice that is the amount of the fixed penalty.
However, if the person to whom a fixed penalty notice is given has already received a fixed penalty notice the amount specified as the fixed penalty is in the case of the second fixed penalty notice received, £120; and in the case of the third and subsequent fixed penalty notice received, double the amount specified in the last fixed penalty notice received by that person, to a maximum of £960.
Paying a fixed penalty
Whatever other method may be specified, payment of a fixed penalty may be made by pre-paying and posting to the person whose name is stated in the notice at the stated address, a letter containing the amount of the penalty (in cash or otherwise). Where such a letter is sent payment is regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.
In any proceedings, a certificate (1) that purports to be signed by or on behalf of the chief finance officer of the local authority concerned, and (2) states that the payment of a fixed penalty was, or was not, received by the date specified in the certificate; is evidence of the facts stated. A ‘chief finance officer’, in relation to a local authority, means the person with responsibility for the authority’s financial affairs.