The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 were made at 1pm on 26 March 2020 and are now in force. They contain sweeping restrictions never before seen in peacetime in the United Kingdom. They apply to England only and expire in 6 months. They revoke and replace the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 – leaving the business closures in place.
Restrictions on movement
Reg 6 provides that no person may leave their home unless with reasonable excuse, which includes:
- to obtain basic necessities, including money, food and medical supplies and supplies for the essential upkeep, maintenance and functioning of your household – (what is a “basic” necessity is not further defined);
- to obtain the same for a vulnerable person (i.e. a person over 70, a person with an underlying health condition and a pregnant person);
- to take exercise, alone or with other members of your household – note: the limitation to one form of exercise per day, contained in the Prime Minister’s nationally televised ‘instruction’ of 23rdMarch, is not enacted;
- to seek medical assistance;
- to provide care or assistance to a vulnerable person, or to provide emergency assistance;
- to donate blood;
- to travel for the purposes of work or voluntary or charitable services, where it is not reasonably possible work etc. from home;
- to attend a funeral – but only if it is of a member of your household, a close family member, or (if no family or cohabitees of the deceased are attending) of a friend;
- to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings
- to access critical public services, including childcare or educational facilities for your child, social services, DWP services, victim support,
- to continue child access and contact arrangements between separated parents
- for ministers of religion and worship leaders, to go to their place of worship
- to move house where reasonably necessary
- to avoid injury or illness or to escape a risk of harm
- some other reasonable excuse – the above being non-exhaustive examples of a reasonable excuse.
Rather poignantly – and for obvious reasons, these restrictions do not apply to the homeless. However, if they are temporarily accommodated during this emergency, then that accommodation becomes “the place where they are living”.
The restrictions on movement have purchase only outside the combined premises in which you live (including any garden, garage, shed, outhouse etc. The reasonable excuse afforded by work would appear to include the situation where it is not reasonably possible to work from home because your employer unreasonably insists that you attend your workplace, even if they fail to ensure appropriate social distancing in the workplace.
To be clear, unlike the equivalent Welsh regulations, there is no explicit prohibition on leaving one’s home only once a day, no time limit by which one has to return home and no requirement that one may leave one’s home only for exceptional reasons
Note that the concept (Reg (1)(3)(c)) of vulnerable person is loosely defined in relation to those under 70 and not pregnant. It includes those with “an underlying health condition, including but not limited to, the conditions listed in Schedule 1”. There is no indication of the threshold level of seriousness concerned, but the list in schedule 1 are serious and chronic conditions (e.g. chronic organ and neurological diseases, learning disabilities, cerebral palsy, chronic immunodeficiencies and being seriously overweight with a BMI of at least 40).
An underlying health condition, so as to justify outings to assist a vulnerable person, will be of the same order but it is not at all clear whether serious mental illness, such as serious depression, anxiety or agoraphobia would count. On a proper analysis, it is submitted that such illness, if serious and chronic, should be taken to qualify the sufferer as vulnerable for these purposes.
Restriction on gatherings
Reg 7 prohibits restrictions on gatherings of more than two people not in the same household, save where it is otherwise essential for work, to attend a funeral, where reasonably necessary to provide care or assistance to a vulnerable person, to provide emergency assistance or to participate in legal proceedings.
Closure of premises
By reg 5, restaurants and bars – including those in hotels and private clubs, cafes whether independent or those in workplaces but not in hospitals, care homes, schools, prison canteens or services providing food and drink to the homeless must close any part of the premises in which food or drink are sold for consumption on those premises. Pubs must similarly close. All such business may still sell food for consumption off the premises.
Hotels (insofar as they are permitted to remain open – see below) can still provide food as part of room service. Workplace canteens can remain open where there is no practical alternative for staff to obtain food. These terms are not defined. It is unclear whether a vending machine would be suitable and, then, whether items such as snacks would constitute “food” for these purposes.
Business that must close are cinemas, theatres, nightclubs, bingo halls, concert halls, museums and galleries, casinos, betting shops, spas, nail / hair / beauty salons, barbers, massage parlours, tattoo/piercing parlours, skating rinks, indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades, soft play areas, other indoor leisure centres or facilities, funfairs (indoors and outdoors), playgrounds, sports courts, outdoor gyms, outdoor markets except for food stalls, car showrooms, auction houses.
All business other than those specified, offering goods for sale or hire or a shop or providing library services must stop doing so except by making deliveries from orders by website, telephone or post.
Specified business that may remain open are food stores, including markets, convenience stores and corner shops, off licences, pharmacies, newsagents, homeware/building supplies/hardware stores, petrol stations, car repair/MOT services, bicycle shops, taxis/vehicle hire business, banks/building societies/credit unions/short term loan providers/cash points, post officers, funeral directors, laundrettes/dry cleaners, dental services/opticians/audiology services/chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health, vets/pet shops, agricultural supplies shops, storage and distribution facilities including drop off/collection points for the above stated business, car parks and public toilets.
A person operating a hotel, hostel, bed and breakfast, apartment or caravan park must stop their business unless a person is unable to return home, uses it as their main home (for those, perhaps, who live in a suite in the Savoy), needs accommodation whilst moving house or to attend a funeral, or where it is to provide for the homeless.
Places of workshop must close save for funerals, broadcasts of worship or for essential voluntary activities, such as providing foodbanks or support for homeless or vulnerable persons. Community centres, similarly must close, save where providing those essential voluntary activities. This will cause difficulties for Muslims observing the holy month of Ramadan (likely to be between 23 April and 23 May 2020) who will have to refrain from some of their usual customs, particularly when breaking their fast, in the interests of the health of the nation.
Crematoriums and burial grounds are closed to the public save for their attendance at a funeral or burial.
Enforcement and powers of police constables and PCSOs
Enforcement is by ‘relevant persons’ (Reg 8). They are constables, police community support officers (PCSOs) and those designated by local authorities and by the Secretary of State. They may take any action as is necessary to enforce any requirement imposed by regulation 4, 5, or 7 (this excludes Reg 6 – relating to restrictions on movement).
An officer/PCSO may also give a person a prohibition notice if they reasonably believes that a person is contravening Regs 4 or 5 (business closure) and that it is necessary and proportionate to give the prohibition notice for the purpose of preventing that person from continuing to contravene the requirement.
Where a person disobeys the restrictions on movement in Reg 6, officers may – if, but only if, they consider that it is a necessary and proportionate means of ensuring compliance with the requirement:
- direct them to return to their home (strictly to the place where they are living)
- remove them to their home – using reasonable force if necessary
- direct those responsible for children who are breaching Reg 6 to take them home or ensure so far as reasonably practicable that they do comply
An officer / PCSO may deal with an unlawful gathering by:-
- directing the gathering to disperse
- directing anyone in the gathering to go home
- removing them to their home
In exercising these powers, officers and PCSOs may give reasonable instructions that they consider necessary. It is an offence to fail to comply without reasonable excuse or to obstruct a relevant person, punishable by a fine. Importantly, section 24 PACE (powers of arrest of a constable) is not amended but is to be treated as if the necessity criteria included “to maintain public health” and “to maintain public order”.
Pursuant to reg 10, an officer or PCSO may issue a fixed penalty notice to a person over 18 in respect of their commission of an offence. The penalty is £60 with a 50% discount for early payment (to the local authority). Payment of the penalty expunges the person’s criminal liability. Repeat fixed penalty offenders receive doubling penalties, starting at £120, up to £960, with no early payment discount.
Police roadblocks and checkpoints
There has been some suggestion of police roadblocks and similar spot checks on those who may be infringing the restrictions. What will be permissible will be determined in accordance with familiar principles. Unless there is some legal basis to detain a person, it is axiomatic that it will not be lawful to do so, even briefly.
Restrictions on business closure and gatherings may be enforced by taking such action as is necessary to enforce any requirement. It is likely that the Court will consider that action is only necessary where the officer has at least a suspicion that restrictions are being broken. The action may include briefly detaining the person (in a way that they might not consider to be detention) in order to ask questions relevant to whether they are in fact breaching such restrictions. They cannot be compelled to answer, but silence may fail to dispel the suspicion of a breach.
Judged by this yardstick, it may be difficult to justify action taken (including any form of detention or compulsory questioning) in relation a small group of 1 adult and 2 children walking a dog, which is likely to amount to exercise.
Care should be taken with such things as discretionary stops of otherwise lawfully driven vehicles.
In the end, forces are facing a potentially massive policing workload as a result of these Regulations. They may feel that it is appropriate to adopt a risk averse posture, only intervening where truly necessary to prevent a breach of the Regulations which is egregious in the sense of seriously conflicting with their health protection purposes – e.g. a very large and close gathering. It may be disproportionate to target couples sitting wide apart in a park in the sun, perhaps as a break from exercise, given the recent scenes of London Underground and main line trains and buses packed with people travelling to their workplaces. The epidemiological risk of the former is surely tiny compared with that of the latter.
In relation to all the coronavirus measures, the functions of the police are for the protection of public health rather than, as traditionally, the detection and prevention of crime per se. Officers are, therefore, performing more of a public health than law enforcement function – which officers should bear in mind at all times when performing their duties. In these difficult times, all chief officers will want to secure cooperation from the public, in order to avoid unnecessary difficulty and opposition – and to ensure the widest possible consent for what are extreme peacetime measures.
Lastly, police will be careful not to permit potential biases to affect their decisions or actions. Like stop and search, the potentially wide powers granted to police under these Regulations may expose them to claims of unlawful discrimination.