|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.
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. The Regulations are detailed and, in places, complex. This post offers an overview.
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 and Scotland).
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The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 - (SI 2020/327) because they are superseded by the new set of requirements set out in Regulation 4 - see below.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. 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.
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.
There is no doubt that the Regulation 6 restrictions will result in many everyday activities becoming offences unless there is a reasonable excuse for the activity. Also, several of the reasonable excuses specified in Regulation 6(2) present problems of interpretation. In all situations what is reasonable will depend on the full facts.
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 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 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.
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 certain specified matters - e.g. a prohibition or restriction relating to the holding of an event or gathering. 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."
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.
Regulations around the UK:
: 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
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
26 March 2020.