28 September 2020

You can download this Explainer as a PDF here.

On 28 September 2020 the Health Protection (Coronavirus, Restrictions) (Self- Isolation) (England) Regulations 2020 became law. These Regulations introduce a new legal duty on people to self-isolate in two situations:

  1. If you test positive for Covid-19; or
  2. If you are told by contact tracing system (but specifically not by the app) to self-isolate.

Self-isolation means remaining in your home and only leaving in the situations that the Regulations says. We explain this in more detail below. 

If you do not self-isolate when directed to, this is a criminal offence under these Regulations. If you commit an offence under these Regulations, you can be punished by a fine which starts at £1,000 and goes up to £10,000.

On 28 September, the Government also updated their Guidance on self-isolation: Stay at home: guidance for households with possible or confirmed coronavirus (COVID-19) infection. However, it is important to remember that the guidance is not the law, the law is set out in Regulations.

What are Regulations?

The legal rules about lockdown are set out in Regulations. The Regulations are government-made law, made under emergency powers. This means they are not debated and approved by parliament before becoming law.

Why have new Regulations been introduced and why?

The Health Protection (Coronavirus, Restrictions) (Self- Isolation) (England) Regulations 2020 were made on 27 September 2020 and came into force at 12.00am on 28 September. These regulations apply in England only.

The Regulations say that they were introduced in “response to the serious and imminent threat to public health which [Coivd-19] in England.” As noted above, please remember that the law as set out in the Regulations may not be the same as the Government issued advice and guidance. 

What do the new Regulations say?

Part 1 of the Regulations introduces a new legal requirement for adults to self-isolate if they are notified that they have:

  1. tested positive for coronavirus from a test after 28 September 2020; or
  2. had close contact after 28 Sept with someone who has tested positive or coronavirus. The Regulations define close contact as having face to face contact with some less than 1 metre apart, spending more than 15 minutes within 2 metres of someone, or travelling in a car or other small vehicle with a person or in close proximity to a person on a plane.

There is also legal requirement for adults who are responsible for a child, to ensure that a child who has tested positive or been in close contact self-isolates.

Part 2 introduces a requirement on employers of workers who are required to self-isolate. Regulation 7 says that when your employer is aware of your requirement to self-isolate, they cannot knowingly allow the worker to attend any other place for work. This means they should not allow you to go into the workplace or other places where you may work outside of where you are self-isolating. The Regulations do allow for employers to ask people to work from wherever they are self-isolating, just not to come to work. 

Who will tell you if you need to self-isolate?

The notification to self-isolate can only be provided to you by one of three people: 

  • the Secretary of State for Health and Social Care
  • an NHS worker, or
  • a Local Authority worker.

If any of these people tell you the notification to self-isolate is withdrawn, it is as if it never existed. If a tracing app tells you to self-isolate, this does not count as a notification requiring you to self-isolate.

If you are told to self-isolate what does this mean you have to do?

Under Regulation 2 “self-isolate” means you must

  • remain in your home or that of a friend or family member or accommodation provided or arranged under immigration law or other suitable accommodation (suitable accommodation is not defined); and
  • not leave that place except where necessary for the following reasons:
    • seek medical assistance, where this is required urgently or on the advice of a registered medical practitioner. This includes services from dentists, opticians, audiologists, chiropodists, chiropractors, osteopaths and other medical or health practitioners, or services relating to mental health;
    • to access urgent veterinary services;
    • to fulfil a legal obligation, including attending court or satisfying bail conditions, or participating in legal proceedings;
    • to avoid a risk of harm;
    • to attend a funeral of a close family member;
    • to obtain basic necessities, such as food and medical supplies for people in the same household (including any pets or animals in the household) where it is not possible to get these in other ways;
    • to access critical public services, including social services, and services provided to victims (such as victims of crime);
    • to move to a different place where it becomes impracticable to remain at the address to self-isolate

If you are told to self-isolate for how long will it be for?

Regulation 3 sets out the law on how long your self-isolation will be. This part is quite tricky, as there are two different timeframes for self-isolation and when you start counting that timeframe depends on your situation.

  • If you are notified that you have tested positive for Coronavirus the self-isolation period is 10 days. The day you start counting your 10 days from starts from the day your test was taken. Unless you have or develop symptoms:
    • if you have symptoms before your test, your 10-day count starts from the day symptoms started (up to 5 days before your test).
    • if you develop symptoms after testing positive then your 10-day count starts again from the day you develop symptoms.
  • If you are notified that you have been in contact with a person who tested positive for Coronavirus you must self-isolate for 14 days.
    • If you live with the person who has tested positive then the 14-day count starts from the day the test was taken. But if you had symptoms before the test was taken, then as above, the 14 days start from the day symptoms started (up to 5 days before the test date).
    • If you don't live with the person who has tested positive then the 14-days starts from date of your last close contact with them.

It is important to know that if the person notifying you to self-isolate asks you to, you must confirm the address where you will be self-isolating and name of each person living in the same household.

If the positive test or contact is about a child, the responsible adult must ensure, as far as is reasonably practicable, the child self-isolates for the period. Again, if requested by the notifier, the adult must provide the address and names of others in the household where they will self-isolate.

Enforcing the Regulations: What happens if you don’t self-isolate as requested?

If you do not obey these Regulations, it will be a criminal offence. Regulation 11 creates 3 offences:

  • If you do not self-isolate when notified and leave your home without one of the reasons lists (e.g. for medical assistance, shopping, etc.)
  • If you do not self-isolate when notified, and you are likely to come into contact with other people, and there is reason to believe that you have been reckless about the consequences of close contact, this is a criminal offence. For example, this might include situations where people who have been told to self-isolate go into a shopping centre and visit several shops (without a reasonable excuse), or going to lots of pubs.
  • Obstructing an authorised person from enforcing these Regulations, or refusing to comply with the directions to go back to where you are self-isolating.

There are also other offences under the Regulations, including if you knowingly give false information about testing or close contacts.

Under Regulation 10, an authorised person is usually a police officer or person designated by the Local Authority. If they believe you have committed one of these offences, an authorised person can: 

  • direct you to return to where you self-isolating
  • remove you to where you are self-isolating. They can use reasonable force, if necessary, to do this,

These powers should only be used by an authorised person if they consider it is a necessary and proportionate to ensure you comply with the Regulations.

Offences under the Regulations can be punished by a fine, if you are convicted. Alternative to going to court, a fixed penalty notice (FPN), which is often thought of as a monetary fine, can be issued by an authorised person under Regulation 12. If a FPN is issued, you do not have to accept it. If you do not then the police can issue criminal proceedings and the matter will be decided in court. If you do accept the FPN you will have to pay a fine, which must be paid within 28 days, or criminal court proceedings will be started.

The fines for a FPN for breaching Regulation 2 (failing to self-isolate) are: 

  • £1,000 for the first time
  • £2,000 for a second FPN
  • £4,000 for a third FPN
  • £10,000 for a fourth and any further FPN

The fines for the offence of being reckless about the consequences of coming into contact with another person or group (see above) starts at £4,000 for the first time and goes up to £10,000.

What human rights are involved?

There are a range of human rights under the Human Rights Act that may be engaged by the Regulations. These include:

  • The right to life (Article 2). This includes a duty on government to take proactive steps to protect life, which is one of the reasons they give for the Regulations that have been issued in response to Coronavirus.
  • The right to liberty (Article 5), which is about not being arbitrarily deprived of your liberty. Deprivations of liberty are only permitted in certain circumstances, and with certain safeguards met. There are some important questions that need to be clarified about this right, in general and for particular groups of people. In general, whilst this the Regulations are about “self”-isolation, not being taken away to isolate, there are some questions about whether this is a deprivation of liberty because of the threat of criminal sanctions. Even more worrying, the Regulations do not seem to deal with situations where people may lack capacity to make a decision to consent to self-isolation, e.g. due to a learning disability or dementia. If families, support workers or staff where a person lives forces them to self-isolate, this will create significant questions about whether that person’s right to liberty is being breached. At the time the Regulations were published, the Government’s Guidance on supporting people with mental capacity issues (here) had not been updated to include issues about self-isolation requirements.
  • The right to non-retrospective punishment (Article 7) which requires criminal offences to be known by the public (foreseeable and accessible). Whilst the general idea of the self-isolation Regulations has been discussed in public statements, there are still problems. The Regulations came into effect on a Monday at 12.01am, but was not published until later afternoon on a Sunday. There is also a lack of clear promotion about the Regulations and the confusion between the Regulations and Guidance is problematic.
  • The rights to respect for private and family life (article 8), which include participating in the community, relationships with others, and maintaining contact with family. Enforced self-isolation will likely interfere with this right. Restrictions on this right must be lawful, necessary (e.g. to protect the person/wider public) and proportionate.
  • The right free assembly (Article 11), which covers the ability to gather in public spaces. Enforced self-isolation will likely interfere with this right. This covers issues related to people’s ability to meet with others. Restrictions on this right must also be lawful, necessary and proportionate.
  • The right to manifest religious beliefs (Article 9) by attending places of worship and similar. Enforced self-isolation will likely interfere with this right. Restrictions on this right must also be lawful, necessary and proportionate.
  • The right to not be discriminated against in the enjoyment of these human rights (article 14). For example, disabled people may require adjustments to ensure the Regulations are not applied in a discriminatory way; we’ve noted the situation of people with mental capacity issues above.

What happens now?

On 11 May 2020 the Government published Our plan to rebuild: The UK Government’s COVID-19 recovery strategy, most recently updated on the 24 July. It states that the UK Government’s phase 1 response has been to “contain, delay and mitigate”, that phase 2 is focusing on smarter controls, and phase 3 will focus on reliable treatment. Phase 2 sets out 3 steps: Step 1 - exercise more than once a day, outdoor public places open; Step 2 - phased return for primary schools and non-essential retail; Step 3 - places of worship, leisure facilities and hospitality open. Step 1 started on 11 May. Step 2 started on 1 June 2020. Step 3 started on 4 July 2020. Since then we have had further easings of restrictions on movement and businesses, and then restrictions have been put in place again in some situations.

The UK Parliament’s Joint Committee on Human Rights (JCHR) has raised concerns about the Regulations and their enforcement by the police. On the 19 March 2020 the JCHR started an Inquiry into “The Government’s response to COVID-19: human rights implications.” The JCHR Chair’s briefing states: 

"This lockdown is the most significant and blanket interference with individual liberty in modern times.  Such extreme measures can only be considered lawful, justified, necessary and proportionate if (1) the threat from disease and death remains sufficiently significant to justify such extraordinary measures; (2) the measures only interfere with human rights and civil liberties to the extent necessary; (3) the measures are enforced in a clear, reasonable and balanced manner; (4) enforcement is authorised, and does not go beyond what is prohibited, by law." 

The JCHR Inquiry finished accepting evidence from the public and experts in writing on 22 July. BIHR submitted evidence to the JCHR based on our work with 1700 people since lockdown and specific research with 230 representing 1) people accessing (or trying to access) public services, their family and friends; 2) community groups and advocates; 3) frontline staff in health, care, social work, education and housing.

You can find our reports here, including Easy Read version. Overall we found that since March 2020, decisions across the UK, by Governments and in local areas, have compromised people’s human rights.

You can find the JCHR’s final report here, which concluded, that the Government must urgently address a number of issues to make sure that its handling of the Coronavirus pandemic is compatible with human rights. You can read our Explainer on the JCHR report here. 

PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.