My previous post looked at the latest "lockdown" regulations which came into force on 1 June 2020. Here is a link to the up to date version of the legislation.
Whether the public realise it or not, the latest legislation has the potential for serious impact on what individuals may do within the privacy of their homes. Here is a closer look ....
New Regulation 6 (Restrictions on Movement):
An entirely new Regulation 6 replaced the earlier version.
"No person may,
without reasonable excuse, stay overnight at any place other than the place where they are living."
There is then a non-exhaustive list (a to g) of the circumstances in which a person ("P") has a reasonable excuse.
The new Regulation is a major change from the earlier regulation which stated - "During the emergency period, no person may leave the place where they are living without reasonable excuse." (There was a non-exhaustive list of what could be a reasonable excuse).
Example 1 - P visits and stays overnight with a friend Q. In this situation P commits and
offence unless he has a reasonable excuse for the overnight stay.
New Regulation 7 (Restrictions on Gatherings):
An entirely new Regulation 7 replaced the earlier version.
"During the emergency period, unless paragraph (2) applies, no person may participate in a gathering which takes place in a public or private place - (a) outdoors, and consists of more than six persons, or (b) indoors, and consists of two or more persons."
The word "gathering" is defined -
"For the purposes of this regulation - (a) there is a gathering 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; (b) a place is indoors if it would be considered to be enclosed or substantially enclosed for the purposes of section 2 of the Health Act 2006, under the Smoke Free (Premises and Enforcement) Regulations 2006.
The new Regulation 7 paragraph 2 is a list (a to f) of the exceptions.
Regulation 7 applies to gatherings in both public and private places. The earlier regulation on gatherings applied only to public places and only applied if there were more than two people present.
Example 2 - P visits a friend Q. P stays overnight in Q's home. This situation is a "gathering" for the purposes of Regulation 7 even though P and Q are in a private place. In this situation both P and Q have acted outside regulation 7 because their conduct is not within the exceptions listed in paragraph 2 but whether they have committed an offence under Regulation 7 depends on a proper reading of Regulation 9 where offences under the regulations are defined.
The problem:
Regulation 9 sets out the offences - (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. Prosecution is possible or, under Regulation 10, a fixed penalty notice could be issued.
Regulation 9 states "without reasonable excuse" in relation to Regulations 4,5,7 or 8 so there is a possibility that, for example, there could be a reasonable excuse for a particular gathering. A court would take into account the point that this is public health legislation aimed at preventing the spread of coronavirus infection.
On any view, this legislation is a major inroad by the law into what is permissible within the privacy of an individual's home.
See Lockdown and the Law for an interesting discussion between barrister Adam Wagner and solicitor David Allen Green.
Legal note on the "Emergency" regulation-making procedure:
The legal basis for the Regulations is Part 2A of the Public Health (Control of Disease) Act 1984. In particular, see sections 45C and 45D. Section 45C(1) is the actual power to 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)." Section 45D places certain restrictions on the power.
The 1984 Act section 45Q requires draft regulations to be laid before Parliament and approved by each House. Obviously this enables prior parliamentary scrutiny of the legislation BUT this can be avoided by the government because the 1984 Act contains an emergency procedure permitting the making of Regulations without a draft being laid before Parliament - see section 45R. This applies "if the instrument contains a declaration that the person making it is of the opinion that, by reason of urgency, it is necessary to make the order without a draft being so laid and approved."
The emergency procedure has been used in connection with the original "lockdown" regulations made on 26 March and all the subsequent amendments. It is questionable whether there is the necessary urgency to justify using the emergency procedure to amend the regulations.
Parliament has made arrangements to continue to function through the pandemic but there have been a number of recesses. The dates when health protection regulations were made and parliamentary recess dates are shown in this table -
Recess dates
|
Regulations made
|
13 February – 24 February
|
10 February - Health Protection (Coronavirus) Regulations 2020 (S.I.
2020/129). Those regulations were made on 10 February 2020 under powers
in the Public Health
(Control of Disease) Act 1984.
These Regulations applied to “potentially infected persons” and were
later revoked by the Coronavirus Act 2020.
|
25 March – 21 April
|
26 March - Original restrictions regulations made - The Health
Protection (Coronavirus, Restrictions) (England) Regulations 2020 - SI
2020/350
21 April – Amendment Regulations were made - The Health Protection
(Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 - SI
2020/447
|
6 May – 11 May
|
12 May – second amendment regulations made - The Health
Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2)
Regulations 2020 -SI 2020/500
|
20 May – 2 June
|
31 May – third amendment regulations made - The Health
Protection (Coronavirus, Restrictions) (England) (Amendment) (No 3)
Regulations 2020 - SI 2020/558
|
21 July – 8 September
|
Summer recess
|
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