This suumary accompanies my two blog posts that set out the detail of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the 2020 Regulations’) in respect of:
The aim of these posts is to set out the law and the precise ambit of the powers created. There is also official guidance that lacks legal force that ought to be followed as an ethical imperative, in the light of the spread of the coronavirus and the risk of infection of oneself and others.
From 1 pm on 26 March 2020 restrictions have been imposed by 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 impose severe restrictions on personal movement and gatherings, and compel the closure of businesses and premises, 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.
How do the 2020 Regulations Work?
The 2020 Regulations work by creating an ‘Emergency Period’ during which restrictions or requirements may be imposed. The need for restrictions and requirements during the emergency period is subject to review at least every 21 days, with the first review to be carried out by 16 April 2020.
During this period restrictions are imposed on personal movement and gatherings, and requirements are imposed to closed certain businesses and premises. The restrictions thus imposed amount to a disciplinary regime made manifest by powers of enforcement, and the creation both of criminal offences and of a civil penalty regime to discharge liability to conviction for an offence.
Special provision is made for vulnerable persons (aged 70+, pregnant, or under 70 with an underlying health condition (there is a non-exhaustive list)).
Restrictions on Movement
During the emergency period, no person may leave the place where they are living without reasonable excuse (homeless persons are exempt).
A reasonable excuse includes (but it not limited to) the need to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any of list of businesses (including food retailers, pharmacies, etc. (there is a non-exhaustive list)).
Among other things, a reasonable excuse also includes the need to take exercise either alone or with other household members (in the regulations for England no provision is made to specify how many times a day, for how long, or in what circumstances); to seek medical assistance; to travel for work (any work, not just essential) where not possible to work from where a person is living; for contact and access in split-family situations; to provide care or assistance to a vulnerable person; and to provide voluntary or charitable services.
Restrictions on Gatherings
During the emergency period, no person may participate in a gathering in a public place of more than two people except: where all the persons in the gathering are members of the same household; where the gathering is essential for work purposes; to attend a funeral; or where reasonably necessary: (1) to facilitate a house move; (2) to provide care or assistance to a vulnerable person; (3) to provide emergency assistance; or (4) to participate in legal proceedings or fulfil a legal obligation.
Food and Drink Businesses
Restrictions are imposed on restaurants; cafés; workplace canteens (where no practical alternative exists) but not canteens in key public sectors such as hospitals and care homes; homeless services; bars; and pubs.
Premises or parts of premises where food and drink is sold for consumption on-site must close and selling must cease. Sales of food and drink for consumption off the premises remain permitted. Room service in hotels is not considered as food and drink sold on the premises.
Businesses that must be closed
Certain businesses are to be closed, including Cinemas, Theatres, Gyms, Swimming pools, and Outdoor Markets (except for food stalls). Such businesses and the supply of services by them must cease. But Cinemas, Theatres, Bingo Halls, Concert Halls, or Museums and Galleries may use their premises 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.
Businesses that may continue to receive customers in person
Certain businesses may continue to receive customers in person, including food retailers, pharmacies, newsagents, post offices, laundrettes, banks, etc.
Business that must trade via media
Other businesses must trade via media. 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. Such a person must close any premises which are not required to carry out the business or provide permitted services, and cease to admit any person to the premises who is not required to carry on the permitted business or provide the permitted services.
A person responsible for carrying on a business consisting of the provision of holiday accommodation 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.
In addition. they may continue to carry on their business and keep any premises used in that business open 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; 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.
Certain persons are empowered to enforce the restrictions: constables; police community support officers; persons designated by the Secretary of State; and in relation to the closure of businesses and premises, persons designated by a local authority. Such a person may give any reasonable instructions they consider to be necessary. Save in respect of restrictions on movement, such a person may take such action as is necessaryto enforce any requirement imposed.
As regards restrictions on movement, a person may be directed to where they are living or be removed to that place. As regards restrictions on gatherings, a gathering may be directed to disperse, a person may be directed to where they are living, or a person may be removed to that place. Reasonable force may be used to remove a person. The person exercising the power must judge it to be necessary and proportionate in order to use a power.
Special provision for directions to be given is made to cater for the situation where the person outside the place where they are living is a child accompanied by a responsible individual (e.g. a parent).
As regards the closure of business and premises, a person empowered may give a prohibition notice to a person if they reasonably believe 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 are committed by a person where without reasonable excuse they contravene a requirement (including a restriction) on gatherings; or where they contravene a requirement (including a restriction) on movement. It is also an offence without reasonable excuse to obstruct a person carrying out functions under the 2020 Regulations, to contravene an enforcement direction, or to fail to comply with a reasonable instruction or a prohibition notice.
Offences are punishable on summary conviction in the Magistrates’ Court by a fine. An officer of a corporate body may be liable in certain circumstances if that body is proved to have committed an offence.
There are police powers to arrest without warrant where a 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. Criminal proceedings may be brought by the Crown Prosecution Service (CPS) or a person designated by the Secretary of State.
Fixed Penalty Notices
Fixed penalty notices may be issued by constables; police community support officers; persons designated by the Secretary of State; and in relation to the closure of businesses and premises, persons designated by a local authority.
An authorised person may issue a fixed penalty notice to anyone that the authorised person reasonably believes has committed an offence under the 2020 Regulations who 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 conviction for the offence by payment of a fixed penalty to a local authority specified in the notice.
Where a notice is issued, no proceedings may be taken for the offence before the end of the periodof 28 days following the date of the notice, and the person may not be convicted of the offence if the person pays the fixed penalty before the end of that period. A fixed penalty notice must contain specified particulars.
For the first occasion a person receives a fixed penalty notice, the amount specified under paragraph be £60. However, 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 penalty.
Where a 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 amountspecified in the last fixed penalty notice received by that person, to a maximum of £960. There are no reductions for early payment of second and subsequent notices.