You can download this Explainer as a PDF here.

17 September 2020

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

  • using public transport or are in public transport premises such as railway and bus stations (from 22 June 2020),
  • going into a shop (from 10 July 2020), and
  • going into other public indoor places (from 8 August 2020).

On 13 July, the Scottish Government published Guidance Coronavirus (COVID-19) Phase 3: staying safe and protecting others: Face Coverings. The Guidance has been updated multiple times and is a useful resource. It is important to remember that the law, as set out in Regulations may be different to Scottish 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 the Regulations which deal with face coverings, where they apply, to who, and exemptions.

 

What are the Regulations?

The Health Protection (Coronavirus, Restrictions) (Scotland) Regulations 2020, were enacted by the Government and came into force on 26 March 2020.  These Regulations were introduced to provide a legal framework for restrictions on people’s movements and gatherings during “lockdown”. To find out more about these restrictions, please see BHIR Explainer – Coronavirus Law & Policy: Lockdown and Police Powers (Scotland).

These Regulations were amended, lifting many of the restrictions on our movement and gatherings. New requirements to wear face coverings in Scotland were also introduced:

  • as of 22 June there is a requirement to wear face coverings whilst on public transport
  • as of 10 July, there is a requirement to wear face coverings whilst in shops
  • as of 8 August, there is a requirement to wear face coverings whilst in other indoor public places, such as banks, cinemas and places of worship.

On 11 September 2020, the Scottish Government introduced a new set of Regulations, the Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020. These Regulations became the law on 14 September 2020. These new Regulations revoke the original Regulations Health Protection (Coronavirus, Restrictions) (Scotland) Regulations 2020. This means the old Regulations are no longer the law.

Part 4 of the new Regulations restate the rules of face coverings. The rules are the same as in the old Regulations with their amendments, and we will explain them in detail below.

As these are Regulations, they are a form of delegated or secondary legislation. This means they come from the Scottish Government, not from an Act of the Scottish parliament.

Scottish Ministers issue the Regulations and are responsible for reviewing these Regulations every 21 days. Under Regulation 3, the restrictions must be ended if they are no longer necessary. The first review of the new Regulations must take place by 1 October 2020, and then once every 21 days after that.

 

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 Government has introduced these laws in response to the serious and imminent threat to public health posed by Covide-19.

 

What are the changes?

Requirements to wear face coverings, in certain places, have been introduced:

  • as of 22 June there is a requirement to wear face coverings whilst on public transport
  • as of 10 July, there is a requirement to wear face coverings whilst in shops
  • as of 8 August, there is a requirement to wear face coverings whilst in other indoor public places, such as banks, cinemas and places of worship.

 

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 (Regulation 12) and in indoor public places (Regulation 13).

Public transport is a “service provided for the carriage of passengers by road, railway, tramway, air or sea”. This would include buses, planes, trains and trams.

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, on cruise ships or on ferries where the ferry ( or the part of the ferry which is open to members of the public) is entirely outdoors, or a distance of 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.

Indoor public places where face coverings are required include:

  • Shops
    • Not including restaurants (including restaurants and dining rooms in hotels or members’ clubs), cafes (including workplace canteens), bars (including bars in hotels or members’ clubs) and pubs.
  • Banks, building societies and credit unions
  • Cinemas
  • Museums and galleries
  • Places of worship
  • Community centres
  • Indoor fitness studios, gyms, swimming pools or other indoor leisure centres
  • Post offices.

There are more indoor public places where face coverings must be worn. You can find the full list of these places in Schedule 1 to the new Regulations.

The following people do not have to wear face coverings:

  • children under 5 years old
  • 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
  • people flying or otherwise operating a passenger transport service for the carriage of passengers by air
  • people responsible for a shop or any other place listed in Schedule 1 to the new Regulations, or an employee of that person, where there is a partition between the person or employee and members of the public, or a distance of at least two metres is maintained between the person or employee and members of the public
  • people seated at a table in a restaurant, cafe, bar or pub
  • people leading a service for a funeral, marriage ceremony or civil partnership registration, as long as there is a partition between the person and members of the public, or a distance of at least two metres is maintained between the person and members of the public

 

Situations where wearing a face covering is not required

The following are examples of situations where wearing a face covering is not required:

  • when seeking medical assistance
  • when providing care or assistance to a vulnerable person, including to provide emergency assistance
  • when avoiding injury, illness or to escape a risk of harm
  • where the person cannot put on, wear or remove a face covering:
    • because of any physical or mental illness or impairment or disability (within the meaning of section 6 of the Equality Act 2010)
    • without severe distress
  • when communicating with a person who has difficulties communicating (in relation to speech, language or otherwise)
  • when eating or drinking
  • when taking part in exercise which reasonably requires you to not wear a face covering
  • when taking medication
  • when a relevant person (explained below) requests that you remove your face covering
  • when undertaking food handling tasks, to avoid risk to the hygiene or safety of food.

A “relevant person” means a police constable, or a person designated by a local authority for the purposes of this regulation.

The Powers for Enforcing the Regulations

Regulation 14 sets out the powers for enforcing the Regulations. Enforcement action can be taken by a “relevant person”. This is usually a police constable or police community support officer. If a relevant person who believes a person is contriving a requirement in these Regulations they can enforce the Regulations by:

  • taking “such action as is necessary to enforce” the requirement;
  • giving a prohibition notice;
  • removing a person to where they live (reasonable force may be used if necessary and proportionate).

Regulation 14(7) specifically states that enforcement actions, including the giving of directions, should only be taken when necessary and proportionate.

Criminal Offences and Fixed Penalty Notices

Regulation 15 sets out three criminal offences which may be committed:

  • Disobeying a requirement in Regulations about wearing a face covering
  • Stopping a person carrying out a function under the Regulations
  • Disobeying a direction or reasonable instruction

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 16, 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. However, if the police believe the offence is serious (e.g. the believe multiple offences have been committed) they can issue criminal proceedings in court straight away.

If a FPN is issued by the police, 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 police can start criminal 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 are in a situation where a face covering is not required, 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?

The Coronavirus (COVID-19): framework for decision making - Scotland's route map through and out of the crisis sets out a phased approach to lifting varying restrictions. As of 10 July, Scotland is now in “phase three” of this plan. It is unclear how long the requirement to wear face coverings on public transport and in public indoor places will apply for. However, the requirement must be reviewed every 21 days and ended if no longer necessary. 

On 8 April 2020 the Scottish Parliament’s Equality and Human Rights Committee (EHRiC) agreed to hold an inquiry into Coronavirus and the impact on equality and human rights. The remit of the inquiry was agreed on the 23 April 2020, and focuses on what groups are and individuals are disproportionately impacted by Coronavirus. The Committee has put out an open-ended call for evidence (this means there is currently no closing date for people and organisations to share their views with Committee).  

We are currently gathering evidence for the EHRiC inquiry. If you would like to get involved and have a say on the human rights issues that affect your lives and work, please join our Communities of Practice platform. Find out more here. You can also access our survey directly 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 Scotland Explainer series here:

1. Original version

2. 17 September 2020