|Lockdown - before - after|
This post considers the latest Health Protection regulations made for England. (Separate Regulations will apply in other parts of the UK).The letter of the law is in the Regulations BUT we can all do much more to fight the virus. Please do not take risks with the health of yourself, your loved ones, and others in the community.
Please see the Links at the end of this blogpost for updates and further discussion.
The government has used powers under the Public Health (Control of Disease) Act 1984 (the 1984 Act) to make The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020
Without any doubt, these Regulations are the most draconian restrictions imposed by a democratically elected government in the long history of our nation, including during the two world wars of the 20th century. They entail closure of businesses, restrictions on movement, and restrictions on gatherings of people. The Regulations are detailed and, in places, complex.
The making of the Regulations was foreshadowed by
the Prime Minister's Statement 23 March 2020 where Mr Johnson said - "From this evening I must give the British people a very simple instruction - you must stay at home. Because the critical thing we must do is stop the disease spreading between households." The Prime Minister did not have actual legal power to issue such an order but he indicated that the police would be given the requisite powers. The Regulations, made under the 1984 Act, impose requirements on businesses and individuals and provide for enforcement of the requirements.
- came into force at 1 pm on 26 March and were laid before Parliament at 2.30 pm.
- expire at the end of the period of six months beginning with the day on which they come into force.
- were made using the Emergency Procedure in section 45R of the 1984 Act and are therefore subject to the parliamentary controls in that section
- apply to England only. (Separate Regulations have been made for Wales, Scotland, and Northern Ireland).
: Overview :
Regulation 1 contains certain definitions including the definition of "Vulnerable Person."
A “vulnerable person” includes - (i) any person aged 70 or older; (ii) any person under 70 who has an underlying health condition, including but not limited to, the conditions listed in Schedule 1; (iii) any person who is pregnant.
Regulation 2 - amongst other things this revokes The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 - (SI 2020/327) because they are superseded by the new set of requirements set out in Regulation 4 - see below.
Regulation 3 - The Emergency Period and review of need for restrictions -
the “emergency period” started at 1 pm 26 March and will end, in relation to a restriction or requirement imposed by the Regulations, on the day and at the time specified in a direction published by the Secretary of State terminating the requirement or restriction. This enables the Secretary of State to terminate restrictions or requirements individually whilst retaining other restrictions or requirements.
The Secretary of State must review the need for restrictions and requirements imposed by these Regulations at least once every 21 days, with the first review being carried out by 16th April 2020.
Regulation 4 - Requirement to close premises and businesses during the emergency - this Regulation has to be read in connection with Schedule 2.
Part 1 of Schedule 2 sets out businesses which are required to cease selling food or drink. The list includes restaurants, cafes (with certain limited exceptions), Bars, and Public Houses.
Part 2 of Schedule 2 lists 19 types of business that must close. This is a more extensive list than those set out in earlier Regulations (now revoked).
Regulation 5 -
5(1) A person responsible for carrying on a business, not listed in Part 3 of Schedule 2, of offering goods for sale or for hire in a shop, or providing library services must, during the emergency period -
(a) cease to carry on that business or provide that service except by making deliveries or otherwise providing services in response to orders received - (i) through a website, or otherwise by on-line communication, (ii) by telephone, including orders by text message, or (iii) by post;
(b) close any premises which are not required to carry out its business or provide its services as permitted by sub-paragraph (a);
(c) cease to admit any person to its premises who is not required to carry on its business or provide its service as permitted by sub-paragraph (a).
(2) Paragraph (1) does not apply to any business which provides hot or cold food for consumption off the premises.
5(3) closes businesses which provide holiday accommodation but exceptions apply - see 5(4).
5(5) closes places of worship but certain uses are permitted - e.g. funerals - see 5(6).
5(7) closes community centres but, again, with specified exceptions
Regulation 6 - Restrictions on movement -
Regulation 6(1) states - During the emergency period, no person may leave the place where they are living without reasonable excuse. Hence, the "reasonable excuse" has to exist at the time the person leaves their home. Situations could arise where there was a reasonable excuse to go out such as to shop for groceries but the shop turns out to be empty. That would not make the going out unlawful in a retrospective way. Perhaps the individual should then act sensibly by returning home.
Regulation 6(2) sets out a non-exhaustive list - (a) to (m) - of things that will be regarded as reasonable excuses. A FULL reading of this list is essential.
The Regulation 6 restrictions will have a major impact on daily life. Also, several of the reasonable excuses specified in Regulation 6(2) present difficult problems of both interpretation and application.
Regulation 7 - Restrictions on gatherings - During the emergency period, no person may participate in a gathering in a public place of more than two people. There are limited exceptions - e.g. where all the persons in the gathering are members of the same household.
Regulation 8 - Enforcement -there are detailed provisions for enforcement of the Regulations by "relevant persons." For example Regulation 8(3) provides - "Where a relevant person considers that a person is outside the place where they are living in contravention of regulation 6(1), the relevant person may - (a) direct that person to return to the place where they are living, or (b) remove that person to the place where they are living. A relevant person exercising the power to remove a person to the place where they are living, may use reasonable force, if necessary, in the exercise of the power.
Regulation 9 - Offences and penalties -
(1) A person who - (a) without reasonable excuse contravenes a requirement in regulation 4, 5, 7 or 8, or (b) contravenes a requirement in regulation 6, commits an offence.
(2) A person who obstructs, without reasonable excuse, any person carrying out a function under these Regulations commits an offence.
(3) A person who, without reasonable excuse, contravenes a direction given under regulation 8, or fails to comply with a reasonable instruction or a prohibition notice given by a relevant person under regulation 8, commits an offence.
(4) An offence under this regulation is punishable on summary conviction by a fine.
(NB: Such fines could be unlimited).
Regulation 9(7) - provides that section 24 of the Police and Criminal Evidence Act 1984 (Arrest without warrant: Constables) applies in relation to an offence under this regulation as if the reasons in subsection (5) of that section included - (a) to maintain public health; (b) to maintain public order.
Regulation 10 - provides for Fixed Penalty Notices. An "authorised person" (e.g. a constable or Police Community Support Officer) may issue a fixed penalty notice to anyone that the authorised person reasonably believes - (a) has committed an offence under these Regulations; (b) is over the age of 18.
The fixed penalty is £60 (or £30 if paid within 14 days) but, if there is a second offence it becomes £120 (no reduction) and for subsequent contraventions the penalty doubles up each time to a maximum of £960 - (i.e. £240, £480, £960).
Regulation 11 - Proceedings for an offence under these Regulations may be brought by the Crown Prosecution Service and any person designated by the Secretary of State.
: Statutory Powers to make the Regulations:
Lawyers always consider whether Regulations are within the powers granted by Parliament.
The enabling legislation:
The Public Health (Control of Disease) Act 1984 section 45C(1), (3)(c), 4(d), section 45F(2) and section 45P are the statutory powers under which the government made the Regulations.
These sections were inserted into the 1984 Act by Part 3 of the Health and Social Care Act 2008 and the reason for doing this is set out in the Explanatory Notes. The crucial point here is that Regulations made under these powers are for the purposes of "public health" and this has to be borne in mind when interpreting the regulations.
The 1984 Act section 45C(1) - The appropriate Minister may by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere). 45C(2) tells us that the power in 45C(1) may be exercised - (a) in relation to infection or contamination generally or in relation to particular forms of infection or contamination, and (b) so as to make provision of a general nature, to make contingent provision or to make specific provision in response to a particular set of circumstances.
The 1984 Act section 45C(3) states - Regulations under subsection (1) may in particular include provision -
(a) imposing duties on registered medical practitioners or other persons to record and notify cases or suspected cases of infection or contamination,
(b) conferring on local authorities or other persons functions in relation to the monitoring of public health risks, and
(c) 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. [My emphasis].
See also Section 45C(4) which provides that the restrictions or requirements that may be imposed under subsection (3)(c) include in particular -
(a) a requirement that a child is to be kept away from school,
(b) a prohibition or restriction relating to the holding of an event or gathering,
(c) 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
(d) a special restriction or requirement.[My emphasis].
The term special restriction or requirement is defined by section 45C(6) as "a restriction or requirement which can be imposed by a justice of the peace by virtue of section 45G(2), 45H(2) or 45I(2) ..." This is discussed further below.
The words "include in particular" indicate that Section 45C(4) is NOT an exhaustive list as to what may be included in Regulations.
The making of Regulations under section 45C is subject to the restrictions imposed by section 45D. In particular, section 45D(1) provides that - "Regulations under section 45C may not include provision imposing a restriction or requirement by virtue of subsection (3)(c) of that section unless the appropriate Minister considers, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it."
Section 45D goes further and states -
45D(3) - Regulations under section 45C may not include provision imposing a special restriction or requirement mentioned in section 45G(2)(a), (b), (c) or (d).
45D(4) - Regulations under section 45C may not include provision enabling the imposition of a special restriction or requirement unless - (a) the regulations are made in response to a serious and imminent threat to public health, or (b) imposition of the restriction or requirement is expressed to be contingent on there being such a threat at the time when it is imposed.
Section 45E provides that - (1) Regulations under section 45B or 45C may not include provision requiring a person to undergo medical treatment.
Section 45F makes further provision about the contents of Regulations made under sections 45B or 45C. Here we find section 45F(2) containing a list of what Regulations may do - e.g. confer functions on local authorities and other persons, create offences, etc.
Special restrictions or requirements:
It has already been seen that special restrictions or requirements can be included in Regulations made by the Minister under section 45C(3) are defined by section 45C(6) in terms of the restrictions or requirements that a Justice of the Peace could impose under sections 45G(2), 45H(2) or 45I(2). Local authorities may apply to a justice of the peace to make orders and there is an appeal from such orders to the Magistrates' Court.
When making Regulations under section 45C the Minister is permitted to impose such restrictions or requirements on the wider population by way of the Regulations.
Regulations may be challenged in legal proceedings on the basis that they are ultra vires (beyond the powers) granted by the enabling Act of Parliament - see Boddington v British Transport Police  2 AC 143,  UKHL 13.
It remains to be seen whether any legal challenges to the Regulations will arise in practice. Arguments could be made either way.
Note added 6 April - See the view that the Regulations are lawful - Professor Jeff King - Part 1 dated 1 April and Part 2 dated 2 April and the contrary view that they are ultra vires at UK Human Rights Blog 6 April (Robert Craig) Also see the article published by Blackstone Chambers - Coronavirus and civil liberties in the UK
Navigation through this forest of statutory provisions indicates that, for the purposes of public health, the Minister is empowered to make Regulations imposing particularly severe requirements and restrictions on the population in general.
The Regulations contain numerous problems of interpretation and application. Further, it may have been preferable to put the various restrictions on liberty in the Coronavirus Act. After all, the Cornavirus Bill was passing through Parliament at the time the Minister made the latest Regulations. This course of action would have prevented any vires challenge arising. Arguments of incompatibility with convention rights would have remained a possibility. The government has not chosen to derogate from the European Convention. I have argued previously that the European Convention does not prevent governmental action to cope with a health emergency. Derogation is undesirable except as a very last resort.
The Minister chose to make the Regulations under the Emergency procedure in section 45R which provides that the Regulations cease to have effect after 28 days unless the Regulations are approved by a resolution of each House of Parliament. BUT, the 28 days do not include any time during which Parliament is prorogued or dissolved or during which both Houses are adjourned for more than 4 days. At the time of writing, Parliament is adjourned until 21 April.
The Minister is required to review the the need for restrictions and requirements imposed by these Regulations every 21 days with the first review on 16 April - Regulation 3(2).
: Regulations around the UK :
The Scottish Regulations are made using powers in Schedule 19 of the Coronavirus Act 2020
The Northern Ireland Regulations are made under powers inserted into the Public Health Act (Northern Ireland) 1967. See also Coronavirus Act 2020 s.48 and Schedule 18
College of Policing - Briefing on the Regulations
David Anderson QC - Can we be forced to stay at home?
Garden Court Chambers - Louise Hooper - Briefing on The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020
Addition 4 April: 5 Essex Court - Coronavirus: A Guide for Police Forces
Addition 6 April - Blackstone Chambers - Coronavirus and civil liberties in the UK
Addition 10 April - Joint Committee on Human Rights - Chair Briefing Paper dated 8 April
Addition 16 April - Tom Hickman QC - 8 ways to reinforce or revise the lockdown law
with link to Blackstone Chambers (6 April) Coronavirus and Civil Liberties in the UK
26 March 2020.