You can download this Explainer as a PDF here.

17 September 2020

The “lockdown” began in the UK on 23 March 2020. In July laws were introduced in Northern Ireland about when you must wear a face covering. Currently you must wear a face covering when you are:

  • using public transport or are in public transport premises such as railway and bus stations (from 10 July 2020)
  • entering a “relevant place” (basically shops) (from 10 August 2020).

The Northern Ireland Executive made face coverings mandatory in shops and other relevant places from 10 August.

NI Direct has published guidance on Coronavirus (COVID-19): face coverings. It is important to remember that the law, as set out in Regulations may be different to the 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.

What are the Regulations?

The requirement to wear face covering on public transport was first made mandatory by an amendment to the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 on 10 July. However, these Regulations have since been revoked.

The requirement to wear face coverings on public transport is now in the Health Protection (Coronavirus, Wearing of Face Coverings) Regulations (Northern Ireland) 2020. These Regulations became law on 23 July. These Regulations were amended on 3 July 2020 to introduce the requirement to wear a face covering in “relevant places”. Relevant places basically include shops and shopping centres. The rules in these amendments became law on 10 August 2020 following an announcement of the Northern Ireland Department of Health.

These Regulations last for 12 months and the Department of Health must review the need for the requirements imposed by these Regulations by or before they have been law for 6 months.

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. The Regulations say the Department of Health has introduced these laws in response to the serious and imminent threat to public health posed by Covid-19.

What are the changes?

People in Northern Ireland must now wear face coverings when using public transport, in a public transport premises such as a bus or train station or in a shop or shopping centre.

What is a face covering?

A face covering is defined as “a covering of any type which covers a person’s nose and mouth” (Regulation 2).

When must a face covering be worn?

These Regulations require people to wear face coverings on public transport and whilst in public transport premises such as railway and bus stations.

Public transport includes bus, coach, rail and ferry services. Public transport premises are “off-road premises where a passenger transport service may stop or terminate, allowing passengers on and off”, so this would include bus stations, train stations, ferry terminals and airports but not bus stops.

There is no requirement to wear face coverings on a school transport service, or on ferries where the ferry “area is outdoors and a distance of at least two metres can be maintained between any persons on the ferry or the part of the ferry which is open to members of the public”. 

There is no requirement to wear face coverings on a school transport service, or on ferries where the ferry “area is outdoors and a distance of at least two metres can be maintained between any persons on the ferry or the part of the ferry which is open to members of the public”.

These Regulations also require people to wear face coverings while in a “relevant place”.

Relevant places are listed in Schedule 1 to the Regulations, and basically include shops and enclosed shopping centres. The Schedule says that “shops” does not include the following:

  • restaurants, including restaurants and dining rooms in hotels or members’ clubs;
  • cafes, including workplace canteens
  • bars, including bars in hotels or members’ clubs
  • public houses
  • a place where access or attendance is regulated by means of sale of tickets or by appointment
  • a place where aerobic exercise is the primary reason for going there
  • banks, building societies, credit unions, short-term loan providers, savings clubs, cash points 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.

This means a face covering is not required in the specific places listed above.

The following people do not have to wear face coverings:

  • children under 13 years old
  • police constables acting in the course of their duty,
  • emergency responders (other than a constable) acting in their capacity as an emergency responder,
  • people providing a passenger transport service, or an employee of that person, where there is a partition between the person or employee and members of the public.

Reasonable excuses for not wearing a face covering

Under Regulation 5, the following are examples of reasonable excuses, which mean you do not have to wear a face covering on public transport or when you are in a public transport premise

  • to seek medical assistance,
  • the need to provide care or assistance to a vulnerable person, including to provide emergency assistance,
  • to avoid injury, illness or to escape a risk of harm,
  • where the person cannot put on, wear or remove a face covering:
    • because of any disability (within the meaning of the Disability Discrimination Act 1995(a); or
    • without severe distress;
  • to communicate with a person who has difficulties communicating (in relation to speech, language or otherwise),
  • to eat or drink where reasonably necessary,
  • to take medication,
  • a relevant person (explained below) requests that you remove your face covering
  • if a person responsible for a shop or their employee acting in the course of their employment has asked you to remove your face covering for identification purposes.

In Regulation 5, this list uses the work “includes” which means there may be other similar reasonable excuses for not wearing a face covering.

A “relevant person” means a constable, or a person designated by the Department of Health for the purposes of this regulation.

The Powers for Enforcing the Regulations

Regulation 6 sets out the powers for enforcing the Regulations. Enforcement action can be taken by a “relevant person” (explained above). If a relevant person who believes a person is contriving a requirement in these Regulations without a reasonable excuse (in Regulation 5) they can enforce the Regulations by taking “such action as is necessary to enforce any requirement imposed by regulation. This includes, in particular:

  • directing a person to wear a face covering
  • direct a person to get off the vehicle or leave the transport premises
  • direct a person not to enter or to leave the relevant place (shop).

If you ignore these directions, then a relevant person can remove you from the vehicle, transport premise or shop. The person 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.

If a relevant person has reasonable grounds to believe that a child is repeatedly failing to comply with the requirement to wear a face covering, the relevant person may direct any individual who has responsibility for the child (under 18) to secure, so far as reasonably practicable, that the child complies with that requirement.

Criminal Offences and Fixed Penalty Notices

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

  • not wearing a face covering whilst on public transport, in public transport premises (such as bus and train stations) or in shops without a reasonable excuse;
  • obstructing any person carrying out a function under these Regulations;
  • contravening a direction given by a relevant person under Regulation 6, without a reasonable excuse.

These offences are punishable by a fine. There is a power of arrest if that is needed to maintain public health or public order.

Under Regulation 9, 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

If a FPN is issued by an authorised person (same meaning as relevant person), a person does not have to accept it. If they do not then the police can issue criminal proceedings and the matter will be decided in court.

If a person accepts the FPN they have to pay a fine. If they accept the FPN but do not pay it, then the Chief Constable, or a person designated by the Department of Health, can start court proceedings after 28 days. 

A first FPN is £30, a second is £120, and a third FPN is double the amount of the last FPM received, up to a maximum of £960.

What does this mean for people?

These Regulations mean that 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 12 May 2020, the Northern Ireland Executive published the Executive Approach to Decision-Making, its five-step plan for slowly easing the coronavirus lockdown. The steps will not necessarily move forward at the same speed. For example, step 1 for work may apply at a different time than step 1 for retail.

Northern Ireland’s blueprint does not include a timetable - but the first minister said she hoped to reach the final stage by December. Progression will depend on key health criteria being met. 

It is unclear how long the requirement to wear face coverings on public transport and in shops will apply for. However, the Regulations last for 12 months and the Department of Health must review the need for the requirements imposed by these Regulations by or before they have been law for 6 months.

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 Coverings in NI Explainer series here:

  1. Original version (29 July 2020)
  2. 17 September 2020