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23 September 2020

The “lockdown” began in the UK on 23 March 2020. In June and July laws have been introduced in England about when you must wear a face covering. There are two main situations where you must wear a face covering, these are when you are:

  • using public transport (from 15 June 2020), and
  • going into specific places such as shops, banks, places of worship and transport hubs/stations/ports, defined in the law as “relevant places” (from 24 July 2020).

On 31 July, the Government issued updated Guidance “Face coverings: when to wear one and how to make your own”. It is important to remember that the law, as set out in Regulations may be different to UK Government Guidance. The legal rules about face coverings 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). This Explainer focuses on Regulations which deal with face coverings, where they apply, to who, and exemptions.

From 8 August 2020 there are additional places added to the list of “relevant places” where you must wear a face covering (unless you have a reasonable excuse, outlined below). From 28 August 2020, you will get an increased fine each time you are issued a fine for not wearing a face covering in places where you must.

On 23 September, the regulations were again updated, to add taxis and private hire vehicles to the list of public transport where you should wear a face covering. 

The second set of Regulations made a number of important changes: they added theatres, restaurants, bars and pubs to the list of “relevant places where the public should wear face coverings. They also now require employees and other persons providing services in certain “relevant places”, including in shops, cafes, restaurants, bars and public houses to wear face coverings when they close to members of the public unless they are exempt or have a reasonable excuse. Finally, they increase the fines to be paid for breaches of the Regulations.

This Explainer has been updated to include all of the above changes to the law.

What are the Regulations?

The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 are about wearing face coverings on public transport. These became the law on 8 June 2020.

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 are about wearing face coverings in “relevant places”, like shops. These became the law on the 24 July 2020. 

Changes were made to these Regulations to widen the number of relevant places. These changes were made in The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) Regulations 2020. These changes became the law on the 8 August 2020.

Changes were made to both sets of Regulations on 28 August 2020 by a new set of Regulations. This new set of Regulations, the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) Regulations 2020, increased the cost of fines you receive if you have already been given a notice/fine for not wearing a face covering in both situations where you are required to wear a face covering in England – on public transport and in “relevant places”. This means you will be fined more with each fine if you repeatedly break the law on face coverings.

Changes were made to both sets of Regulations on 23 September 2020 by a new set of Regulations. This new set of Regulations, the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 2) Regulations 2020, introduced the requirement to now wear face coverings whilst in taxis and private hire vehicles and corrects some errors in both sets of Regulations.

A second set of Regulations, the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 3) Regulations 2020 also published on 23 September made a number of other key changes. They added theatres, restaurants, bars and pubs to the list of “relevant places where the public should wear face coverings. They also now require employees and other persons providing services in certain “relevant places”, including in shops, cafes, restaurants, bars and public houses to wear face coverings when they close to members of the public unless they are exempt or have a reasonable excuse. Finally, they increase the fines to be paid for breaches of the Regulations. These changes are in force as of 24 September 2020.

All the Regulations last for 12 months from the date they became law. The Regulations must be reviewed by the Secretary of State (a government Minister) by or before they have been law for 6 months (Regulation 9 in both).


Why have they been introduced?

These Regulations have been introduced to provide a legal framework for requiring people to wear face coverings in certain situations. Both the Regulations say the Government has introduced these laws in response to the serious and imminent threat to public health posed by Covide-19.

What are the changes?

THE PUBLIC TRANSPORT REGULATIONS

What is a face covering?

Regulation 2 defines as face covering as any type which covers a person’s nose and mouth. It does not have to be a face mask.

When must a face covering be worn?

These Regulations require people to wear face coverings on public transport. This is defined as including situations where there is and isn’t payment and breaks in journey. It does not include school transport services or cruise ships. As of 22 September 2020, face coverings must be worn in taxis and private hire vehicles. 

Under Regulation 3 a person must wear a face covering when they are getting onto and travelling on public transport. This applies unless the person has a reasonable excuse to not wear a face covering OR they are a within this list of people:

  • A child under 11 years old
  • An employee of the transport service who is working
  • Any other person providing services as agreed with the transport service
  • A police officer or community support officer
  • An emergency responder
  • A person in a cabin/berth or similar who is in that cabin (including sharing it with members of their own household or a linked household (“bubble”))
  • A relevant official who is working. This includes an inspector or surveyor of ships, a pilot, a civil aviation inspector or a border force officer.

Reasonable excuses to not wear a face covering

Under Regulation 4, the following are examples of reasonable excuses, which mean you do not have to wear a face covering on public transport:

  • You cannot put on, wear or remove a face covering because of any physical or mental illness or impairment, or disability (as covered by the Equality Act 2010)
  • You cannot put on, wear or remove a face covering without severe distress
  • You are travelling with, or assisting, someone who relies on lip reading to communicate
  • You have removed your face covering to avoid harm or injury, or the risk of harm or injury, to yourself or others
  • You are travelling to avoid injury, or to escape a risk of harm, and do not have a face covering with you
  • It is reasonably necessary for you to eat or drink and you remove your covering to do so
  • You remove you face covering to take medication
  • A relevant person (explained below) requests that you remove your face covering.

In Regulation 4, this list uses the work “includes” which means there may be other similar reasonable excuses for not wearing a face covering.

Under Regulation 5 a relevant person is a police officer or community support officer. For public transport provided by TfL, a relevant person, is also a TfL officer or contractor. For other public transport services, a relevant person is the operator (the company) or any of its employees or agents. The Secretary of State can also designate someone to be a relevant person.

Enforcing the requirement to wear a face covering

Under Regulation 5 only a relevant person can enforce the requirement to wear a face covering whilst using public transport. If a relevant person believes you are breaking the requirement to wear a face covering under Regulation 3 (and you do not have a reasonable excuse), they can:

  • Direct you to wear a face covering
  • Direct you to get off the vehicle

A relevant person can make similar directions in relation to children aged 11 and over, and adults responsible for them.

If you ignore these directions, then a reasonable person can remove you from the vehicle. A police officer doing this can use reasonable force, if necessary.

A relevant person should only exercise these powers to enforce the wearing of face coverings if they consider it necessary and proportionate.

Criminal Offences and Fixed Penalty Notices

Regulation 7 sets out three criminal offences which may be committed:

  • Not wearing a face covering as required by Regulation
  • Obstructing, without reasonable excuse, a person carrying out functions in the Regulations
  • Not obeying a direction, without reasonable excuse

If an authorised person reasonably believes that an offence has been committed by a person aged 18 and over, they can issue a fixed penalty notice (FPN), which is often thought of as a monetary fine. An authorised person is the same as a relevant person (above).

If an FPN is issued a person does not have to accept it. If they do not then the criminal proceedings may be started and the matter will be decided in court.

If a person accepts the FPN they have to pay a fine. As of the 24 Septembers the fines have been doubled. The FPN is £200, reduced to £1000 if paid within 14 days.

Now, the amount of the penalty increases for each additional FPN issued to the same person under Regulation 7. A second FPN will be £400, increasing to £6,400 for the sixth and any subsequent FPNs.

The Crown Prosecution Service (or any person designate by the Secretary of State) can take the case to court instead of issuing an FPN.


THE RELEVANT PLACE REGULATIONS (SHOPS, ETC.)

What is a face covering?

Regulation 2 defines as face covering as any type which covers a person’s nose and mouth. It does not have to be a face mask.

When must a face covering be worn?

Regulation 3 says that a person entering or remaining in a relevant place must wear a face covering, unless they have a reasonable excuse. Under Regulation 3 and Part 1 of the Schedule, a relevant place means:

  • a shop
  • an enclosed shopping centre
  • a bank or building society (and similar services such as currency exchange)
  • a post office
  • a transport hub (places used as stations, terminals, ports or similar).

Shops, does not include restaurants with table service or bars (including those in hotels of members clubs) or pubs. The requirement to where a face mask in an enclosed shopping centre does not apply where to those places where there is seating or tables to eat or drink. The requirement to wear a face covering in a transport hub does not apply where there is seating or tables to eat or drink (e.g. a café at a train station).

A shop is defined by the law as any room or building (indoors) which is open to the public and used to sell or hire goods or services. The original Regulations contained a long list of places that were exempt from this definition. The changes to the law made on the 8 August have 1) provided a wider list of examples of relevant places; and 2) reduced the number of places that are exempt from the definition of relevant places.

The changes to the law on the 8 August mean the following places are also relevant places, which means face coverings should be worn:

  • Indoor places of worship (e.g. churches, mosques, etc.).
  • Community centres including youth centres.
  • Crematorium and burial ground chapels
  • Public areas in hotels and hostels (not areas for food a drink, these are exempt, explained above)
  • Concert halls, exhibition halls and other public halls
  • Cinemas
  • Museums, galleries, aquariums, indoor zoos and visitor farms, and other indoor, or indoor parts of, tourist, heritage or cultural sites
  • Bingo halls
  • Public libraries and reading rooms

 

Schedule 2 sets out all the types of places that are exempted from the definition of a shop. This was updated by the changes to the law made on 8 August. This now means a face covering does not have to be worn in these places:

  • Premises (but not registered pharmacies) providing wholly or mainly medical or dental services, audiology services, chiropody, chiropractic, osteopathic, optometry or other medical services including services relating to mental health
  • Indoor fitness studios, gyms, dance studios, leisure centres, indoor swimming pools, water parks, funfairs, theme parks or other premises for indoor sports, leisure or adventure activities
  • Photography studios

 

Regulation 3 also says that the following people do not have to wear face coverings:

  • Children under the age of 11
  • An employee of a public transport service whilst working
  • A person who enters or is within a transport hub in a vehicle (a transport hub includes airports and train stations)
  • A police officer or community support officer whilst working
  • An emergency responder whilst working
  • A relevant official whilst working. These are defined as an inspector or surveyor of ships, a person appointed by the Health and Safety Executive or one of their officers, a local authority officer, a pilot, a civil aviation inspector, and a border force officer
  • A performer performing in the course of their employment or in the course of providing their services.

Requirement on employees to wear face coverings

As of 24 September employees and other persons providing services in certain “relevant places”, including in shops, cafes, restaurants, bars and public houses to wear face coverings when they close to members of the public unless they are exempt or have a reasonable excuse. The “relevant places” where employees must wear face coverings are:

  • Shops but not including premises providing legal or financial service
  • Enclosed shopping centres
  • Restaurants with table service, including restaurants and dining rooms in hotels or members clubs
  • Bars, including bars in hotels, or members clubs.
  • Banks, building societies, credit unions, short-term loan providers, savings clubs and undertakings which by way of business operate a currency exchange office, transmit money (or any representation of money) by any means or cash cheques which are made payable to customers.
  • Post offices
  • Community centres, youth centres, members clubs and social clubs
  • Public areas in hotels and hostels
  • Concert halls, exhibition halls, conference centres or other public halls
  • Museums, galleries, aquariums, indoor zoos and visitor farms and other indoor parts of tourist, heritage or cultural sites
  • Bingo halls
  • Public libraries and reading rooms.
  • Casinos
  • Theatres

Reasonable excuses to not wear a face covering

Under Regulation 4, the following are examples of reasonable excuses, which mean you do not have to wear a face covering in the relevant places explained above (e.g. shops):

  • You cannot put on, wear or remove a face covering because of any physical or mental illness or impairment, or disability (as covered by the Equality Act 2010)
  • You cannot put on, wear or remove a face covering without severe distress
  • You are with someone who relies on lip reading to communicate
  • You have removed your face covering to avoid harm or injury, or the risk of harm or injury, to yourself or others
  • You are travelling to avoid injury, or to escape a risk of harm, and do not have a face covering with you
  • It is reasonably necessary for you to eat or drink and you remove your covering to do so
  • You remove you face covering to take medication
  • A person responsible for a relevant place or an employee requires you to remove the face covering to check your identity
  • You are in a registered pharmacy and an employee of the pharmacy requires you to remove the face covering to assist your health care needs
  • A relevant person (explained below) requests that you remove your face covering.

In Regulation 4, this list uses the work “includes” which means there may be other similar reasonable excuses for not wearing a face covering.

Under Regulation 5 a relevant person is a police officer or community support officer. For transport hubs which include a TfL service, a TfL officer is also a relevant person. The Secretary of State can also designate someone to be a relevant person.

Enforcing the requirement to wear a face covering

Under Regulation 5 only a relevant person (explained above) can enforce the requirement to wear a face covering in a relevant place (explained above). If a relevant person believes you are breaking the requirement to wear a face covering under Regulation 3 (and you do not have a reasonable excuse), they can:

  • Direct you to wear a face covering
  • Direct you to leave the relevant place.

A relevant person can make similar directions in relation to children aged 11 and over, and adults responsible for them.

If you ignore these directions, then a reasonable person can remove you from the relevant place. A police officer doing this can use reasonable force, if necessary.

A relevant person should only exercise these powers to enforce the wearing of face coverings if they consider it necessary and proportionate.

Criminal Offences and Fixed Penalty Notices

Regulation 6 sets out three criminal offences which may be committed:

  • Not wearing a face covering as required by Regulation 3
  • Obstructing, without reasonable excuse, a person carrying out functions in the Regulations
  • Not obeying a direction, without reasonable excuse

Under Regulation 7, if an authorised person reasonably believes that an offence has been committed by a person aged 18 and over, they can issue a fixed penalty notice (FPN). This is often thought of as a monetary fine. An authorised person is the same as a relevant person (above).

If an FPN is issued a person does not have to accept it. If they do not then the criminal proceedings may be started and the matter will be decided in court. If a person accepts the FPN they have to pay a fine.

As of the 24 Septembers the fines have been doubled. The FPN is £200, reduced to £1000 if paid within 14 days.

Now, the amount of the penalty increases for each additional FPN issued to the same person under Regulation 7. A second FPN will be £400, increasing to £6,400 for the sixth and any subsequent FPNs.

The Crown Prosecution Service (or any person designate by the Secretary of State) can take the case to court instead of issuing an FPN.


What does this mean for people?

Both sets of Regulations means there are now a range of places where you are required to wear a face covering (unless the Regulations do not apply to you, or you have a reasonable excuse, as explained above).


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), which includes a duty on government to take proactive steps to protect life.
  • The right to non-retrospective punishment (Article 7) which requires criminal offences to be known by the public (foreseeable and accessible). The creating of the Regulations, the lack of clear information 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 physical and mental health and wellbeing (as well as participating in the community, relationships with others, and maintaining contact with family). Restrictions on this right must be lawful, necessary (e.g. to protect the person/wider public) 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.

What happens now?

On 11 May 2020 the Government published Our plan to rebuild: The UK Government’s COVID-19 recovery strategy, updated on the 26 May. It states that the UK Government’s phase 1 response has been to “contain, delay and mitigate” and that phase 2 will focus on smarter controls, and phase 3 will focus on reliable treatment. Phase 2 sets out 3 steps: Step1: 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.

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."

For information on the JCHR Inquiry visit the JCHR Inquiry website. The JCHR Inquiry finished accepting evidence from the public and experts in writing on 22 July. They have been holding oral sessions and asking questions of the government and conducting scrutiny sessions with Ministers. We at BIHR submitted evidence from three different groups who told us about their experience of health and social care during Covid-19. You can read our three full reports and easy read versions 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.

You can download PDFs of our previous versions of this Face Covering Laws in England Explainer series here:

  1. First version - 27 July 2020
  2. 7 August 2020
  3. 16 September 2020
  4. 23 September 2020