Introduction

As is well-known the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the 2020 Regulations’) (in force from 1 pm on 26 March 2020) 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. How far can such regulations go? Can they be amended to require people to stay at home in all circumstances? What is the scope for amendment to the regulations?

At present, during the emergency period, no person may leave the place where they are living without reasonable excuse. Further, during the emergency period, no person may participate in a gathering in a public place of more than two people, subject to limited exceptions. In addition, businesses and their premises are subject to closure and regulation. For a summary of the provisions, see my blog post Summary of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (from 1 pm on 26 March 2020).

The 2020 Regulations are made under Part IIA of the Public Health (Control of Diseases) Act 1984 (‘the 1984 Act’). What provisions does that Act make for making public health regulations such as the 2020 Regulations?

The Scope for Making Regulations

The Secretary of State (as regards England) and Welsh Ministers (as regards Wales) may make regulations for the purpose of preventing, protecting against, controlling, or providing a public health response to the incidence or spread of infection or contamination. The power may be exercised in relation to infection or contamination generally or in relation to particular forms. It may make provision of a general nature, make contingent provision, or make specific provision in response to a particular set of circumstances.

In particular, it may include provision for:

• imposing duties on registered medical practitioners or other persons to record and notify cases or suspected cases of infection or contamination
• conferring on local authorities or other persons functions in relation to the monitoring of public health risks, and
• imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health

It is in relation to the last of these three items, the imposition of restrictions or requirements on or in relation to persons, things or premises, that the scope for making public health regulations is considered below.

Such health protection regulations may not include provision requiring a person to undergo medical treatment, including vaccination and other prophylactic treatment.

The scope for making health protection regulations needs to be considered alongside the complementary provision in Part IIA of the 1984 Act for magistrates to make orders to control people, things, and premises to reduce infection risk, see my blog post Magistrates’ Powers to Make Orders to Control People, Things, and Premises to Reduce Infection Risk. Taken together, the two represent a regime that imposes restrictions on civil liberties, freedoms, and human rights.

The significance of these two 1984 Act methods of securing public health, (i) making regulations to regulate conduct, and (ii) handing powers to magistrates to regulate conduct in individual cases, lies in the way they relate to each other. For example, on the application of a local authority, a magistrate may impose an order on a person or group of persons restricting where they go or with whom they have contact. Such a regime needs to considered alongside the power of Ministers to make regulations at a general level to regulate where a person goes or with whom they have contact. The lawfulness of the provision in the 2020 Regulations that no person may leave the place where they are living without reasonable excuse needs to be assessed in that context.

Part IIA of the 1984 Act provides for draconian interferences with an individual’s or group’s civil liberties, freedoms, and human rights to be made by a magistrate (a judicial authority) on application by a local authority and after assessment of the evidence. That suggests that the scope to make general regulations should be less invasive. There has to be a purpose to the provision  made to seek an order. Logically it must be in situations where general regulations reach their natural limit. That suggests that, having regard to the overall scheme in Part IIA of the 1984 Act, the scope of the power to make invasive regulations needs to be confined within limits that respect the division or labour between the two methods. In practical terms this must limit the degree to which regulations may interfere with civil liberties, freedoms, and human rights.

Restrictions or Requirements on or in relation to Persons, Things or Premises

In particular, restrictions or requirements in relation to persons, things, or premises may include provision for:

• a requirement that a child is to be kept away from school
• a prohibition or restriction relating to the holding of an event or gathering
• a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies or the handling, transport or disposal of human remains, and
• special restrictions as regards persons, things, and premises

Health protection regulations in relation to persons, things, and premises may not include provision imposing a restriction or requirement unless the appropriate Minister (English or Welsh as the case may be) making the regulations considers that the restriction or requirement is proportionate to what is sought to be achieved. Nor may such regulations include provision enabling the imposition of a restriction or requirement (by a decision-maker) unless they provide that a decision to impose such a restriction or requirement may only be taken if the person considers, when taking the decision, that it is proportionate to what is sought to be achieved.

In respect of events or gatherings, health protection regulations may be made in relation to holding (as opposed to participating in) them. The 2020 Regulations make no such provision. Instead, prohibitions or restrictions relating to the holding of an event or gathering are provided for in the Coronavirus Act 2020, see my blog post The Coronavirus Act 2020: Powers to Control Movement, Events, Gatherings and Premises. The 2020 Regulations make provision to restrict participation in gatherings but need to do so under another provision of the 1984 Act (see below).

Special Restrictions as regards Persons, Things, and Premises

Health protection regulations may not include provision enabling the imposition of a special restriction or requirement (by means of an individual decision) unless:

• they are made in response to a serious and imminent threat to public health, or
• the imposition of the restriction or requirement is expressed to be contingent on there being such a threat at the time when it is imposed

The 2020 Regulations include a statement that they are made in response to the serious and immanent threat to public health posed by the incidence of and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).

As regards decisions made under health protection regulations, such regulations must provide for a right of appeal to a magistrates’ court against any decision taken under the regulations by virtue of which a special restriction or requirement is imposed. The 2020 Regulations do not empower decision-makers (for example a local authority) to impose a special restriction or requirement. Instead, they impose special restrictions by general regulation, coupled with enforcement powers thereafter. Thus, the absence of a right of appeal in the 2020 Regulations is not unlawful.

Health protection regulations that enable a special restriction or requirement to be imposed by a decision-maker must also provide that, if the restriction or requirement is capable of remaining in force in relation to any person, thing or premises for more than a specified period, a specified person may require the continuation of the restriction or requirement to be reviewed in accordance with the regulations at specified intervals by a person determined in accordance with the regulations. As noted above, the 2020 Regulations do not empower decision-makers to impose a special restriction or requirement.

Where health protection regulations provide for special restrictions or requirements that a person be detained in a hospital or other suitable establishment, or be kept in isolation or quarantine, the period and the intervals specified must be 28 days or less, and the regulations must require the continuation of the restriction or requirement to be reviewed without an application being made.

The 2020 Regulations do not make provision for a person be detained in a hospital or other suitable establishment, or to be kept in isolation or quarantine and so compliance with this statutory requirement. Requirements such as these are imposed by the Coronavirus Act 2020, see my blog posts The Coronavirus Act 2020: Powers of Control for Immigration Officers, Constables, and Public Health Officials, for Screening and Assessment, and Powers to Control Movement, Activity, and Human Contact and Detention and Disease: The Right to Liberty, Article 5 ECHR, and Screening for Coronavirus.

Persons

Further, as regards persons, health protection regulations may make provision for special restrictions so that a person:

• submit to medical examination (an individual decision is required)
• be removed to a hospital or other suitable establishment (an individual decision is required)
• be detained in a hospital or other suitable establishment (an individual decision is required)
• be kept in isolation or quarantine (an individual decision is required)
• be disinfected or decontaminated
• wear protective clothing
• provide information or answer questions about their health or other circumstances
• has their health monitored and the results reported
• attend training or advice sessions on how to reduce the risk of infecting or contaminating others
• be subject to restrictions on where they go or with whom they have contact
• abstain from working or trading

It is in relation to restrictions on where a person may go or with whom they have contact that the 2020 Regulations may run into difficulty. They make provision so that during the emergency period, no person may leave the place where they are living without reasonable excuse, see my blog post Summary of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (from 1 pm on 26 March 2020). Is that provision with the scope of the power conferred under the 1984 Act? There has also been speculation in the media as to whether the 2020 Regulations may be amended to as to require persons to remain where they are living in all circumstances. Would such an amendment by within the scope of the 1984 Act?

There are three main areas of concern. First, the enabling power is to impose restrictions on where a person goes or with whom they have contact. Reading the words using their ordinary meaning, it does not appear expressly to authorise a regulation requiring a person to remain where they are living (even with limited exceptions in the form of a reasonable excuse). Its focus is on where a person goes (i.e. the particular destination) and with whom they have contact. Second, given the provision in Part IIA of the 1984 Act for a local authority to apply to a magistrate for an order to impose on an individual or a group a restriction on where they go or with whom they have contact (see above), the function of a general regulation made under the same part of the 1984 Act must necessarily be less invasive as regards restrictions on civil liberties, freedoms, and human rights. Third, when interpreting an Act of Parliament or regulations made under an Act, plain words (or necessary implication) must be found for a measure to be interpreted and applied so as to interfere with fundamental rights (e.g. the right to liberty/movement, freedom of association, etc.). Reading the enabling provision with this in mind, it is hard to see how it authorises a requirement for a person to remain where they are living subject to a reasonable excuse for departing, and impossible to see how it could require a person to remain whey they are living in all circumstances. Separately and together, these three factors suggest that the 2020 Regulations as made are highly problematic and possibly in excess of their enabling power. None of this is to say that, as an ethical imperative, a person ought not to regulate their conduct by following official guidance to protect themselves and others in the public interest. It is merely to observe that, absent an amendment to the 1984 Act, health protection regulations such as the 2020 Regulations may go so far and no further.

In addition to restrictions on movement, the 2020 Regulations impose restrictions on gatherings, so that absent exceptions, no person may participate in a gathering in a public place of more than two people, see my blog post, Summary of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (from 1 pm on 26 March 2020). A ‘gathering’ is not defined. ‘More than two people’ can include any people and ‘public place’ is broad enough to include vast swathes of the country. Given these broad terms, even if the enabling power to make regulations to restrict where a person goes or with whom they have contact is broad enough to sustain the provision made in the 2020 Regulations, it may be excessive given the provision in Part IIA of the 1984 Act for a local authority to apply to a magistrate for an order to impose on an individual or a group a restriction on where they go or with whom they have contact (see above). Moreover, where plain words (or necessary implication) must be found for a measure to be interpreted and applied so as to interfere with fundamental rights (e.g. right to liberty/movement, freedom of association, etc.), it is questionable whether the prohibition in respect of any and all public places is authorised. Once again, none of this is to say that, as an ethical imperative, a person ought not to regulate their conduct by following official guidance to protect themselves and others in the public interest. It is merely to observe that, absent an amendment to the 1984 Act, health protection regulations such as the 2020 Regulations may go so far and no further.

Things

Further, as regards things, health protection regulations may make provision for special restrictions so that a thing:

• be seized or retained
• be kept in isolation or quarantine
• be disinfected or decontaminated
• in the case of a dead body, be buried or cremated
• in any other case, be destroyed or disposed of

The 2020 Regulations do not appear to make provision in respect of things.

Premises

Further, as regards premises, health protection regulations may make provision for special restrictions so that premises:

• be closed
• in the case of a conveyance or movable structure, be detained
• be disinfected or decontaminated
• in the case of a building, conveyance or structure, be destroyed

The 2020 Regulations make provision for businesses and their premises to be subject to closure and regulation, see my blog post Summary of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (from 1 pm on 26 March 2020).

Clearly premises may be closed. The 2020 Regulations do that for certain business premises.

In addition, in the 2020 Regulations there is a requirement for other business premises permitted to remain open on a limited basis to cease selling food and drink for consumption on the premises. There are also requirements for other business to close their shop trade but to remain open by taking orders via media (online, etc.), and for accommodation businesses, places of worship, community centres, and crematoria and burial grounds to remain open but only on a limited basis. Closure of premises for certain purposes and to regulate permitted trade for those that remain open may exceed the enabling power in respect of premises yet fall within the enabling power to regulate where a person goes and with whom they have contact. However, the scope of the enabling powers may be narrower that may be apparent at first blush given the provision in Part IIA of the 1984 Act for a local authority to apply to a magistrate for an order to impose on an individual or a group a restriction on where they go or with whom they have contact (see above) and to order the closure of premises. As regards an interference with fundamental rights, the closure or business premises may bear upon not only the rights referred to above in respect of persons but also rights associated with business activity and the right to peaceful enjoyment of possessions.

Further, although it may not bear upon the lawfulness of the 2020 Regulations, there may be a degree of overlap with the Coronavirus Act 2020, which makes provision for the Secretary of State to issue a direction prohibiting entry into premises of a specified description, see my blog post The Coronavirus Act 2020: Powers to Control Movement, Events, Gatherings and Premises.

Operational Matters

Health protection regulations may:

• confer functions on local authorities and other persons
• create offences
• enable a court to order a person convicted of any such offence to take or pay for remedial action in appropriate circumstances
• provide for the execution and enforcement of restrictions and requirements imposed by or under regulations
• provide for appeals from and reviews of decisions taken under the regulations
• permit or prohibit the levy of charges
• permit or require the payment of incentive payments, compensation and expenses
• provide for the resolution of disputes

Health protection regulations may not create an offence triable on indictment or punishable with imprisonment. Where an offence is created that is punishable with a fine and a further fine for each day on which the default continues after conviction, the regulation may not provide for the further fine to exceed an amount equal to 2% of the greater of £5,000 or level 4 on the standard scale.

The 2020 Regulations make provision for enforcement by relevant persons taking action in respect of restrictions or requirements, prohibition notices, directing a person, removing a person, using reasonable force, connected summary criminal offences punishable by a fine, and fixed penalty notices to discharge liability to conviction, see my blog post Summary of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (from 1 pm on 26 March 2020).