Matt Hancock enters the bedroom: the 3rd and 4th Amendments to the Health Protection Coronavirus Regulations

Introduction

 The Health Protection Regulations are changing rapidly. What changes are being made? Most strikingly, the amending regulations regulate not just personal movement and gatherings in public spaces but also in the private places in which people live: they regulate with whom a person can stay overnight and prohibit indoor gatherings at home. This new regime, introduced through regulations made under an emergency procedure that itself weakens opportunities for parliamentary scrutiny, is backed up through enforcement by way of civil penalties and prosecutions for connected criminal offences. Looking at the whole package, the regulations are a gross intrusion into personal life wholly at odds with liberty and the common law tradition of freedom. Other changes made by the amending regulations concern the re-opening of businesses and services.

What is in force and from when? The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No 3) Regulations 2020 make changes to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (‘the 2020 Regulations’) from 1 June 2020.  Thereafter, the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No 4) Regulations 2020 make further changes from 13 June 2020 and  from 15 June 2020.  The regulations are all made by Matt Hancock MP, in his capacity as Secretary of State for Health and Social Care.

For a Summary of the 2020 Regulations as made, see my blog post Summary of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (from 1 pm on 26 March 2020). For the changes made on 22 April 2020, see my blog post Changes to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, in force from 11 am on 22 April 2020. For the changes made on 13 May 2020, see my blog post Changes to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, in force from 13 May 2020 .

Movement Restrictions from 1 June 2020

 From 1 June 2020 the former restrictions on movement in public places (where matters such as exercise away from the home were expressly permitted) are scraped and replaced by legislation that regulates who may stay overnight in a place where a person is living. The revised provision regulates private places and the bedroom in particular.

No person may, without reasonable excuse, stay overnight at any place other than the place where they are living. Thereafter, the list of reasonable excuses given is non-exhaustive (i.e. there may be other excuses not listed). The expressly permitted reasonable excuses are:

  • A person needs to stay elsewhere to attend a funeral, as (1) a member of the deceased person’s household, (2) a close family member of the deceased person, or (3) if no-one from (1) or (2) is attending, a friend of the deceased person
  • A person is an elite athlete, a coach of an elite athlete, or (in the case of an elite athlete who is a minor), a parent of the elite athlete, and needs to stay elsewhere for the purposes of training or competition
  • A person needs to stay elsewhere while moving house
  • It is reasonably necessary for a person to stay elsewhere (1) for work purposes, or for the provision of voluntary or charitable services; (2) to provide care or assistance to a vulnerable person; (3) to provide emergency assistance; (4) to avoid injury or illness, or to escape a risk of harm; or (5) to obtain medical assistance
  • A person needs to stay elsewhere to fulfil a legal obligation or participate in legal proceedings
  • A person is a child that does not live in the same household as their parents, or one of their parents, and the overnight stay is necessary to continue existing arrangements for access to, and contact between, parents and children
  • A person is unable to return to the place where that person lives, because (1) it is not safe for P to live there, (2) a person may not lawfully travel there, or is required by law to stay in another place, or (3) the place where the person is living is not available to that person for any other reason

The prohibition on staying overnight at a place other than where a person is not living does does not apply to someone who is homeless.

While the movement restrictions do not expressly  state that it is prohibited for a person to stay overnight at a place they are not living with their partner or indeed with someone on a purely casual basis, they leave it to judgment as to whether or not any person so doing has a reasonable excuse. But who is to judge what constitutes a reasonable excuse? A relevant officer who is minded to issue a civil penalty notice, a prosecutor deciding whether to charge a person, and a magistrate determining whether a person is guilty of an offence may all have to grapple with what constitutes a reasonable excuse. In addition, how do these movement restrictions operate alongside the new gathering restrictions (see below)? Do they overlap in their regulation of overnight stays or are the gathering restrictions limited to other matters? While the movement restrictions regulating overnight stays may be satisfied by a reasonable excuse not expressly set out in the 2020 Regulations, the gathering restrictions contain no such latitude.

Movement Restrictions from 13 June 2020

 Further amendments to the movement restrictions were made from 13 June 2020. From that point no person may, without reasonable excuse, stay overnight at any place other than the place where they are living or where their linked household is living (see below as regards linked households). Thus, it is now a reasonable excuse to stay overnight with a person if they are in a linked household. If they are not in such a household, then a person may need to establish a reasonable excuse for an overnight stay on some other basis, remembering that the list of reasonable excuses is non-exhaustive.

In addition, further reasonable excuses are added: (1) to enable a person to attend a birth; or (2) to make a visit as permitted by the gathering restrictions  to attend a person giving birth at their request; to visit a person dying;  to visit a person in a hospital, hospice, or care home; or to accompany a person to a medical appointment.

‘Linked Household’ from 13 June 2020

 Where a household comprises one adult, or one adult and one or more persons who are under the age of 18 on 12 June 2020 (‘the first household’), the adult may choose to be linked with one other household (‘the second household’), provided that:

  • the second household is not linked with any other household; and
  • all the adult members of the second household agree

The first and second households cease to be linked households if neither household satisfies these conditions. There is no limit on the number of adults or children who may be in the second household. Once the first and second households have ceased being linked households, neither the first household nor the second household may be linked with any other household.

The definition of ‘linked household is used in the movement restrictions (see above) and the gathering restrictions (see below).

 Gathering Restrictions from 1 June 2020

 From 1 June 2020 the former gathering restrictions are scrapped and replaced in their entirety. The new provisions now regulate private as well as public places.

During the emergency period, unless a prescribed exception applies, no person may participate in a gathering which takes place in a public or private place:

  • outdoors, and consists of more than six persons, or
  • indoors, and consists of two or more persons

In the result, no gathering in an indoor place in a private place is permitted, as even gatherings of two (!) are prohibited. Further, unlike the new movement restrictions, there is no non-exhaustive list of reasonable excuses. Instead, there is a defined list of exceptions:

  • all the persons in the gathering are members of the same household
  • the person is attending a funeral, as (1) a member of the deceased person’s household, (2) a close family member of the deceased person, or (3) if no-one within paragraph (1) or (2) is attending, a friend of the deceased person
  • the person concerned is an elite athlete, the coach of an elite athlete, or (in the case of an elite athlete who is a minor), the parent of an elite athlete, and the gathering is necessary for training or competition
  • the gathering is reasonably necessary (1) for work purposes, or for the provision of voluntary or charitable services; (2) to facilitate a house move; (3) to provide care or assistance to a vulnerable person; (4) to provide emergency assistance; (5) for the purposes of early years childcare; (6) to enable one or more persons in the gathering to avoid injury or illness or to escape a risk of harm; or (7)  to continue existing arrangements for access to, and contact between, parents and children where the children do not live in the same household as their parents, or one of their parents
  • the person concerned is fulfilling a legal obligation or participating in legal proceedings or
  • the gathering takes place at an educational facility and is reasonably necessary for the purposes of education

A ‘gathering’ is defined as when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other.

As these regulations extend into private places and prohibit indoor gatherings of two people, it appears they may prohibit sexual relations with someone with whom a person is not living. If so, this would be a gross invasion of a person’s right to respect for private life and fundamental rights.  If the regulations are to extend that far, clear, precise, words would need to be used for them to be lawful.  The gathering restrictions do not expressly prohibit sexual relations, nor should such prohibition be implied. Moreover, the generally expressed prohibition on any form of social interaction or any other activity is not enough (or ought not to be) where such a fundamental form of human behaviour is concerned.

The enabling power to make the gathering restrictions by regulations is in the Public Health (Control of Diseases) Act 1984 (sections 45C and 45G). It permits restrictions on where a person goes or with whom they have contact. However, this language too is in general terms. More is needed if the gathering restrictions made by regulations are to intrude into the sphere of sexual relations conducted between consenting adults indoors and in private. Insofar as the they do so intrude, the gathering regulations may be unlawful.

Further, there is no need for such a power: the same sexual conduct, out of doors (in a gathering) is lawful. There is no basis for such a distinction. It is arbitrary. Finally, it is the restrictions on movement that regulate overnight stays (and allows for a person to advance a reasonable excuse), so perhaps the gathering restrictions ought to be narrowly confined to other situations.

Gathering Restrictions from 13 June 2020

 As regards the prescribed exceptions to the prohibition on gatherings, to the exception that all the persons in the gathering are members of the same household is added or members of two households which are linked households in relation to each other. Thus, if the prohibition on a gathering of two people indoors in private extends to prohibit sexual relations, such conduct is not now prohibited if the other person is in a linked household.

Further exceptions are added:

  • the person concerned is attending a person giving birth, at that person’s request
  • the person concerned is visiting a person they reasonably believe is dying and the person is (1)  a member of the dying person’s household; (2) a close family member, (3) a friend, or (4) where no-one falling within paragraphs (1) to (3) is visiting the dying person, any other person
  • the person concerned is visiting a person receiving treatment in a hospital or staying in a hospice or care home, or is accompanying a person to a medical appointment and is (1) a member of that person’s household, (2) a close family member, or (3) a friend

Gathering Restrictions from 15 June 2020

To the list of prescribed exceptions on gathering restrictions is added: the person concerned is attending a drive-in cinema in a car or other vehicle, and the people in the vehicle are members of the same household, or of two households which are linked households in relation to each other.

Business Restrictions from 1 June 2020

As regards the provision made to close certain business in all circumstances (cinemas, theatres, etc.), an exception is made for facilities for training for elite athletes, including indoor fitness studios, gyms, sports courts, indoor or outdoor swimming pools and other indoor leisure centres.

As regards the provision made to restrict the provision of holiday accommodation, an exception is made for the provision of accommodation to:

  • a person who is isolating themselves from others as required by law; and
  • a person who is an elite athlete, the coach of an elite athlete, or (in the case of an elite athlete who is a minor), the parent of an elite athlete, and needs accommodation for the purposes of training or competition.

As regards places of worship and community centres, permission is given to use them to provide early years childcare.

To the list of business required to close and stay closed is added:

  • as regards indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities, these now include indoor games, recreation and entertainment venues
  • as regards funfairs (whether outdoors or indoors), these now include theme parks and adventure parks and activities
  • Social clubs, model villages, aquariums and zoos (including safari parks), and visitor attractions at farms
  • Indoor attractions at visitor attractions such as botanical or other gardens, biomes or greenhouses; heritage sites or film studios; and landmarks, including observation wheels or viewing platforms.

From the list of business required to close and stay closed is removed: Outdoor markets and car showrooms

To the list of businesses permitted to provide goods and services to the public from their premises is added:

  • As regards outdoor sports courts, amenities, including water sports, stables, shooting and archery venues, golf courses, and driving ranges
  • Outdoor markets
  • Showrooms and other premises, including outdoor areas, used for the sale or hire or caravans, boats, or any vehicle which can be propelled by mechanical means

Business Restrictions from 13 June 2020 

Places of worship may be used for private prayer by individuals. However, ‘private prayer’ is not prayer that forms part of communal worship.

Business Restrictions from 15 June 2020

 From 15 June 2020 the measures preventing non-essential shops and services from trading with customers on their premises are swept away.  This change permits non-essential shops to have customers on their premises once again. As a result, there is now no need for a list of essential shops allowed to open to customers and so that list is removed from the 2020 Regulations.  All that remains are restrictions on library services, which still have to be provided indirectly (via phone, website, etc.).

Further, as regards library services, new provision is made so that the library services provider can (1) carry on a business of offering goods for sale or for hire in a shop which is separate from the premises usually used for the provision of library services, or (2) operate a café or restaurant solely to sell food or drink for consumption off the premises, if the café or restaurant is separate from the library premises. Equivalent provision is made for places of worship. A shop, café or restaurant is separate from a library or a place of worship if it is in a self-contained unit, and it is possible for a member of the public to enter it from a place outside the place of worship or library premises.

As regards those premises and businesses expressly required to close (cinemas, theatres, etc.), provision is made stating that the requirement does not prevent a person responsible for carrying on a business or providing a service:

  • carrying on a business of offering goods for sale or for hire (1) in a shop which is separate from the premises used for the closed business; or (2) by making deliveries or otherwise providing services in response to orders received through a website, or otherwise by on-line communication; by telephone, including orders by text message; or by post;
  • from operating a café or restaurant solely to sell food or drink for consumption off the premises, if the café or restaurant is separate from the premises used for the closed business.

A shop, café or restaurant is separate from premises used for the closed business if it is in a self-contained unit, and it is possible for a member of the public to enter it from a place outside those premises.

In addition, a community centre is now permitted to hold an indoor market, and outdoor cinemas, betting shops, auction houses, and retail galleries, where the majority of the art on display is for sale, may open.

Further, the prohibition on aquariums and zoos, including safari parks opening, is replaced by one prohibiting indoor attractions at aquariums, zoos, safari parks, farms, wildlife centres and any place where animals are exhibited to the public as an attraction.  In addition, shops at indoor attractions are no longer prohibited from opening.

 Changes to Enforcement from 1 June 2020

 From 1 June 2020 changes to the enforcement provision are made to allow a ‘relevant person’  (a constable, a police community support officer, or a person designated by the Secretary of State) who considers that a person is staying overnight at a place other than the place where they are living, in contravention of  the movement restrictions, to direct that person to return to the place where they are living (NB no express power is given to compel the person to comply). Equivalent power to direct dispersal is given in respect of gatherings, public and private. However, as regards public gatherings, a relevant person retains full powers to compel removal of a person in breach of gathering restrictions.

Changes to Enforcement from 13 June 2020

 The provision for a criminal offence in relation to obstruction, without reasonable excuse, of any person carrying out a function under the 2020 Regulations now makes it clear that it extends to a relevant person engaged in enforcement. The regime for civil penalties is adjusted in line.

 “We are the dead”

The powers to levy a civil penalty and to prosecute a person for breaches of the movement restrictions  and the gathering restrictions remain in force, see my post Summary of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (from 1 pm on 26 March 2020) and other linked posts tracing subsequent amendments. If those restrictions prohibit sexual relations with another person who is not a member of a person’s household or linked household, even where such conduct takes place indoors in a private place where a person is living, then such conduct may be punished. Where a relevant person reasonably believes an offence has been committed a civil penalty may be issued to the offender, resulting in need to pay a fine. Where the restrictions has been breached without reasonable excuse (and any civil penalty issued remains unpaid), prosecution for a criminal offence may follow. The use the 2020 regulations in this way should be judged unlawful as being incompatible with fundamental rights for the reasons given above. Moreover, regulations with such effect have no place in a free society, whatever the risk of infection, where the state ought to restrain itself from intruding into certain, fundamental areas of private life.  They are akin to the prohibitions found and enforced in George Orwell’s 1984 when Winston and Julia are caught in bed, having been watched from a telescreen hidden behind a picture.

Further minor changes

From 1 June 2020, the period of time within which the Secretary of State must review the need for restrictions and requirements changes to least once every 28 days, instead of every 21 days. No justification is offered for this in the Explanatory Note to the amending regulations.

 

 

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