In response to the coronavirus pandemic, the Government has passed emergency legislation that, to a degree unprecedented in this country in peacetime, restricts various freedoms we have come to regard as central to the functioning of a liberal democracy; including the freedom to carry on business, to travel from home and to assemble.
At such an extraordinary time, most of us understand and accept the need for some temporary restrictions on our liberties in order to prevent the spread of the coronavirus and to save lives. However, there has been some confusion in the minds of both the public and the police about the actual scope of the new legislation.
The police and others are obliged, and only have the power, to enforce the law not Government guidance. For example, as we will see, the social distancing guidance remains just guidance and has not been enshrined as law in the Regulations.
What follows is a brief headline guide to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, highlighting important areas generally and matters which may be of particular interest to businesses who continue to operate, during the lockdown period.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020
These Regulations have been at the forefront of the Government's response to the pandemic and they have been in force since 1pm on 26th March 2020.
They apply only in England, but there are near-identical regulations in place for Wales and Northern Ireland.
They apply only during the "emergency period" – i.e. from 1pm on 26th March 2020 to a date not more than 6 months later. Although any Regulation can be terminated earlier by the Secretary of State for Health, who must also review the need for the Regulations in whole or in part every 21 days.
The Regulations provide for restrictions on:
Business activities and the operation of premises;
Freedom of movement;
Gatherings of more than 2 people.
These Regulations in fact revoke the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 and set out the restrictions on business activities and the power to close premises in the following areas:
a) Businesses selling food and/or drink and subject only to partial closure (Reg.4(1) and Part 1of Schedule 2);
b) Businesses whose operation is likely to result in members of the public coming into close contact and therefore subject to complete closure (Reg. 4(4) and Part 2of Schedule 2);
c) Businesses providing holiday accommodation (Reg. 5(3)-(4));
d) Places of worship, community centres, crematoria and burial grounds (Reg. 5(6) - (8); and
e) Other businesses (Reg. 5(1)).
A full list of the businesses in each of the above mentioned categories, can be found at this link: http://www.legislation.gov.uk/uksi/2020/350/contents/made
Freedom of movement
This area of the Regulations has become controversial. There is an important distinction to be made, perhaps not originally appreciated by the police and public, between what the Regulations (that is, the law) provides for and what Government guidance recommends (or purports to "instruct").
The law and Government guidance are not the same, and the focus must be on what the law says and what the police have the legal authority to enforce.
Regulation 6(1) stipulates that:
"During the emergency period, no person may leave the place where they are living without reasonable excuse."
Although Government guidance and ministerial pronouncements make free use of the word "essential" in relation to trips from home, that is not the test in the Regulations. The test is simply one of "reasonable excuse", and no one breaches this Regulation if they have such an excuse.
What is a "reasonable excuse"?
Regulation 6 (2) lays out examples of what may amount to a reasonable excuse, but they are not intended to be a comprehensive and closed list of the only possible reasonable excuses; it is a non-exhaustive list of examples.
The most significant examples of reasonable excuse for businesses are, perhaps:
to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonaby possible for that person to work, or to provide those services, from the place where they are living; and
to fulfill a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings.
It is also worth noting that the Regulations do not enshrine the social distancing guidance in to law. No Regulation prescribes social distancing rules, requires them to be observed or gives the power to enforce them.
Regulation 7 prohibits all gatherings of more than two people, but there is an important exception for businesses, under Regulation 7 (b) where the gathering is essential for work purposes.
Powers of enforcement (Regulation 8); who may enforce?
Under Regulation 8 (1) a relevant person may take such action as is necessary to enforce any requirement imposed by regulation 4, 5 or 7. A "relevant person", is defined in Regulation 8(12) as:
a) a police constable;
b) a PCSO;
c) a person designated by a local authority; and
d) a person designated by the Secretary of State.
A power of entry?
Unlike Part 2 of Schedule 21 of the Coronavirus Act 2020, (which provides for entry in limited circumstances when dealing with "infectious persons") the Regulations do not contain an explicit power of entry for the purposes of enforcing the Regulations (even though the Regulations applicable in Wales do contain such a power).
That said, the power to take "such action as is necessary" in Regulation 8(1) to enforce a requirement imposed by Regulation 4, 5, or 7 seems to be very wide. However, it is important to note that this enforcement power does not apply to Reg. 6
As things stand, therefore, it is unclear whether a power to take "such action as is necessary" includes a power of entry onto premises. It has been suggested, that the police may resort, as an alternative, to the power of entry under s.17(1)(e) of the Police and Criminal Evidence Act for the purposes of saving life or limb, or preventing serious damage to property.
Regulation 9 makes it an offence, punishable on summary conviction in the magistrates' court only) by a fine, for a person to:
a) contravene a requirement in Regulation 4, 5, 7 or 8 without reasonable excuse;
b) contravene a requirement in Regulation 6;
c) obstruct, without reasonable excuse, any person carrying out a function under the Regulations; or
d) contravene a direction given under Regulation 8,or fail to comply with a reasonable instruction or a prohibition notice given by a relevant person under Regulation 8.
Powers of arrest
In relation to a power of arrest without warrant, Regulation 9(7) provides that s.24 of PACE applies to an offence under the Regulations as if the reasons for arrest listed in s.24(5) of PACE included:
a) to maintain public health; and
b) to maintain public order.
Under Regulation 10, an "authorised person", which has the same definition as a "relevant person" in Regulation 8(12), may issue a fixed penalty notice to anyone that the authorised person reasonably believes has committed an offence under the Regulations and is over the age of 18.
The amount to be paid is:
a) £60 for the first fixed penalty notice (reduced to £30 if paid within 14 days);
b) £120 for the second fixed penalty notice; and
c) For the third and subsequent fixed penalty notices, double the amount specified in the last fixed penalty notice, up to a maximum of £960.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.