17 September 2020

Download a PDF of this Explainer here

The “lockdown” began in the UK on 23 March 2020. In July laws have been introduced in Wales about when you must wear a face covering. You must wear a face covering when using public transport in Wales from 27 July 2020. From 14 September 2020, you must now also wear a face covering in certain indoor places in Wales.

On 9 June 2020, the Welsh Government issued Guidance Face coverings: guidance for public. This Guidance is updated frequently, and it is a useful resource. It is important to remember that the law, as set out in Regulations may be different to Welsh and 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.

What are the Regulations? 

Regulation 12A of the new Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020 is about wearing face coverings on public transport. This specific part of the Regulations was introduced by an amendment to the Regulations on 24 July 2020. The requirement to wear a face covering on public transport became the law on 27 July 2020.

Regulation 12B of the new Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020 is about wearing face coverings in certain indoor public places. This specific part of the Regulations was introduced by an amendment to the Regulations on 11 September 2020. The requirement to wear a face covering in certain indoor public places became the law on 14 September 2020.

The Regulations expire at the end of the day on 8 January 2021 and must be reviewed by Welsh Ministers by 30 July 2020, and once every subsequent 21 days. 

For more information on these Regulations, particularly on the restrictions on gatherings which are included in them, please see our Lockdown and Police Powers (Wales) Explainer.

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.

 

What are the changes?

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. It does not include school transport services, taxis or private hire vehicles, ferries where people remain outdoors and 2 metres apart, or cruise ships.

Under Regulation 12A 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 if they are a child under 11 years old.

These Regulations also require people to wear face coverings in certain indoor public places. This includes

  • shops,
  • places of worship,
  • public transport stations (such as bus stations, airports and railway stations) and
  • many other indoor public places and businesses such as:
    • pharmacies,
    • banks,
    • post offices,
    • public toilets,
    • cinemas and
    • libraries.

There are many more indoor public places where you must wear a face covering. You can find a full list of these additional premises in Schedule 4 to the Regulations.

Under Regulation 12B a person must wear a face covering when they are in relevant indoor public places. This applies unless a person:

  • has a reasonable excuse not to wear a face covering,
  • if they are under 11 years old, OR
  • if they are in a place where food or drink is sold “for the purpose of consumption on those premises” (for example, in a restaurant you don’t have to wear a face covering because that is a place where food and drink is sold to be eaten there at the restaurant. You would however be required to wear one in a shop, as there the food is not sold to be eaten at the shop.)

Reasonable excuses to not wear a face covering

Under Regulation 12A(4), the following are examples of reasonable excuses, which mean you do not have to wear a face covering on public transport in the following circumstances:

  • 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 2020)
  • To communicate with someone who has difficulty communicating (in relation to speech, language or otherwise)
  • 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 have removed your covering to do so
  • You have removed your face covering to take medication
  • You have been asked to remove the coverings by an enforcement officer (explained below), or by the operator of the public transport (the company) or any of its employees or agents.

This list uses the word “include” which means there may be other similar reasonable excuses for not wearing a face covering.

The reasonable excuses to not wear a face covering in certain indoor public places can be found at Regulation 12B(4), and are almost exactly the same as those for not wearing one whilst on public transport (above). There is one additional reasonable excuse to not wear a face covering in certain indoor public places, and that is:

  • If you are undertaking an activity and wearing a face covering during that activity may reasonably be considered to be a risk to your health.

An “enforcement officer” is a police constable, a police community support officer (PCSO) or a person designated by the Welsh Ministers, a local authority, a National Park authority in Wales, or Natural Resources Wales.

The operators of public transport services have a duty to provide information to passengers about the requirement to wear face coverings on their vehicles.

Enforcing the requirement to wear a face covering

Under Regulation 18, enforcement officers and public transport operators, their employees and agents can enforce the requirement to wear a face covering whilst using public transport. If such a person believes you are breaking the requirement to wear a face covering under Regulation 12A (and you do not have a reasonable excuse), they can:

  • Direct you not to board the vehicle
  • Remove you from the vehicle, using reasonable force if necessary 

Under Regulation 18, if an enforcement officer has reasonable grounds to suspect that you are breaking the requirement (or about to break the requirement) to wear a face covering in certain indoor public places under Regulation 12B, they can:

  • Direct you not to enter the premises
  • Remove you from the premises, using reasonable force if necessary.

If a child (aged 11 and over) fails to wear a face covering on public transport, the adults responsible for them can be directed by an enforcement officer or public transport operators and employees to make sure that the child wears one.

An enforcement officer 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 20 sets out three criminal offences which may be committed: 

  • Not wearing a face covering as required by Regulation 12A and 12B
    (and not following the other restrictions in the Regulations, more information on which can be found in our Lockdown and Police Powers (Wales) Explainer)
  • 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. The fines increase if you given multiple FPNs:

  • First FPN is £60 (£30 if paid within 14 days of the date of the FPN)
  • Second is £120
  • Third FPN is £240
  • Fourth FPN is £480
  • Fifth is £960
  • Sixth FPN and any subsequent FPNs is £1920.

When working out whether someone has already been issued a FPN, and therefore what their FPN will amount to, an enforcement officer will include any FPNs issued to them under the old Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020.

The Director of Public Prosecutions or any person designated by the Welsh Ministers can take the case to court instead of issuing an FPN.

  

What does this mean for people?

The Regulations mean you must wear a face covering on public transport and in certain indoor public places (unless the Regulations do not apply to you, or you have a reasonable excuse, as explained above). If you don’t, you could be stopped from entering or removed from the train or shop etc. or given a fine.

 

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 Regulations expire in 6 months’ time, and will be reviewed periodically by Welsh Ministers until then to make sure they are still proportionate to restricting the spread of Covid-19.

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 Wales Explainer series here:

  1. Original Explainer (29 July 2020)

  2. 17 September 2020