Please note: this Explainer is being updated and may contain out-of-date information.

16 September 2020

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The “lockdown” began in the UK on 23 March 2020.

The legal rules about when you can leave your house may be different to the Northern Irish Executive’s guidance on Coronavirus (COVID-19): regulations, guidance and what they mean for you and Coronavirus (COVID-19) regulations guidance: family and community.

The legal rules are set out in Regulations. This Explainer focuses on the parts of the Regulations which deal with restrictions on people’s movements.

 

What are the Regulations?

The original Health Protection (Coronavirus, Restrictions) (Northern Ireland) Regulations 2020, were made by the Northern Ireland Department of Health at 9.15pm on 28 March 2020 and the powers came into force across Northern Ireland at 11pm on the same day.

These original Regulations have now been revoked by the new Health Protection (Coronavirus, Restrictions) (No. 2) Regulations (Northern Ireland) 2020 (‘Regulations No. 2’), which came into force at 11pm 23 July 2020. This means that since 11pm 23 July, the original Regulations are no longer the law, and the new Regulations No. 2 have replaced them.

The new Regulations No. 2 have been amended three times, on the 7 August 2020, 25 August 2020 and 11 September 2020.

Tip: When viewing legislation like the new Health Protection (Coronavirus, Restrictions) (No. 2) Regulations (Northern Ireland) 2020, it’s a good idea to make sure you’re viewing the “latest version (Revised)”, which you can choose on the left of the page under “What version?”. That way, all the amendments will be included to the legislation as you view it.

The Regulations applying during the “emergency period” of Covid-19 and meant that:

  • certain premises and businesses must close (Regulation 4)
  • certain business activities are restricted (Schedule)
  • restrictions are placed on gatherings in public and private places (Regulation 5 and 6, respectively) 

The Regulations set out what actions can be taken by a "relevant person to enforce these restrictions. A "relevant person" in this situation means this is a police constable, or a person designated by the Department of Health. Failure to comply with an enforcement action is criminal offence punishable by a fine (Regulation 8).

As these are Regulations, they are a form of delegated or secondary legislation. This means they come from, in this case, the Department of Health a department of the Northern Irish Executive, not from an Act of the Northern Ireland Assembly. 

The Department of Health issue the Regulations and are responsible for reviewing the need for the restrictions and requirements under the Regulations. Under Regulation 3 of the new Regulations No. 2, they must be reviewed at least once every 28 days, with the first review being carried out by 21 August 2020. They expire 6 months from the day the became law (23 July 2020) - so they expire on 23 January 2020. 

The original (now revoked) Northern Irish Regulations were amended on the 24 April, 15 May, 19 May, 21 May, 11 June, 22 June, 25 June, 29 June and 2 July

The key changes made by the 2 July amendments to the original (now revoked) Regulations included:

  • The opening of pubs, cafes and restaurants from 3 July
  • The opening of tattoo parlours and similar businesses from 6 July
  • Funerals are no longer restricted to close family or friends 

The key features of the new Regulations No. 2 include:

  • Restrictions on or the closure of businesses listed in the Schedule (basically bars, pubs, nightclubs, theatres, conference centres, concert halls and soft play areas) (see Regulation 4 and the Schedule)
  • Restrictions on indoor and outdoor gatherings of more than 15 people (Regulation 5, as amended on 25 August 2020)
  • Restrictions on gatherings of more than 15 people in private outdoor dwellings (Regulation 6, as amended on 25 August 2020)
  • Restrictions on gatherings of more than six people from more than two households in private indoor dwellings (Regulation 6, as amended on 25 August 2020)

On 12 May 2020, the Northern Ireland Executive published the Executive Approach to Decision-Making, its five-stage plan for slowly easing the coronavirus lockdown.

 

Why have they been introduced?

These Regulations have been introduced to provide a legal framework for restrictions on people’s movements and gatherings during “lockdown”, and to take all reasonable steps to prevent the community transmission of Covid-19 where possible.

What are the changes?

Restrictions on Movement  

The old Regulations, now revoked, had a Regulation 5 on restrictions to movement. This meant that no person could leave the place where they are living without a defence as set out in the old Regulation 5(2). The new Regulations No. 2 do not include any restrictions on movement, and so there are no restrictions on people’s movement anymore since 23 July 2020. 

Restrictions on Gatherings

Regulations 5 and 6 of the new Regulations No. 2 place restrictions on gatherings. Since 29 June, thanks to amendments to the old Regulations, people have been able to gather in public places in groups of up to 30 people. The new Regulations include this too.

However, amendments made to the new Regulations No. 2 on 25 August bring in stricter rules on gatherings. From 25 August 2020, people cannot participate in an indoor or outdoor gathering of more than 15 people under Regulation 5.

The rules covered in this section apply to indoor and outdoor gatherings in places other than private dwellings – a “private dwelling” basically means a home. There are specific rules about private dwellings under Regulation 6, which we will cover later.

This requirement does not apply to a gathering which is organised or operated for:

  • Cultural purposes
  • Entertainment purposes
  • Recreational purposes
  • Outdoor sports
  • Social purposes
  • Community purposes
  • Educational purposes
  • Work purposes
  • Legal purposes
  • Religious purposes
  • Political purposes
  • A sports event at an indoors venue with a capacity of less than 5000

And which fulfils these conditions:

  1. That the person responsible for organising or operating the gathering has carried out a risk assessment which meets the requirements of the Management of Health and Safety at Work Regulations (Northern Ireland) 2000(1); and

  2. That the person responsible for organising or operating the gathering takes all reasonable measures to limit the risk of transmission of Covid-19, including implementing measures identified in the risk assessment and complying with any relevant guidance issued by a Northern Ireland Department.

This means more than 15 people can gather indoors or outdoors where the gathering is organised for those purposes and fulfils the above rules on risk assessments and measures to limit risk of transmission of Covid-19.

These restrictions on indoor and outdoor gatherings of more than 15 people do not apply to gatherings which aren’t organised for the specific purposes allowed above, but which are nevertheless for the following purposes:

  • To help any person to avoid injury or illness or to escape a risk of harm
  • To provide emergency or medical assistance to any person

Restrictions on Gatherings: private dwellings

Regulation 6 of the new Regulations No. 2 places restrictions on gatherings in private dwellings, both indoor or outdoor. A “private dwelling” is “a dwelling occupied by a person as their only or main residence and includes any garden, yard, passage, stair, outhouse” etc. of the dwelling.

 

From 25 August 2020, in outdoor private dwellings (such as a garden) people can meet in groups up to 15 people only.

 

From 25 August 2020, in indoor private dwellings (such as inside a house) people can only meet if the gathering is of:

  • Six people or less; and
  • People from two households or less.

If more than six people live in the same household together, they do not break the above rule if the gather together, so long as there are no people from other households there too.

People can only gather in indoor private dwellings in larger groups if the gathering is for the purpose of:

  • providing care or assistance, including social services, to a vulnerable person;
  • providing emergency or medical assistance to any person; or
  • the fulfilment of a legal obligation.

People can gather indoors in a private dwelling in groups of up to 10 people if for the purpose of a marriage or a civil partnership where a party to the marriage or civil partnership is seriously ill and death in consequence of that illness can reasonably be expected within six months of the date of the ceremony/

These rules on gathering do not apply to funerals or events related to funerals, but everyone at the funeral must follow the guidance on funerals issued by Northern Ireland’s Department of Health.

The Powers for Enforcing the Regulations

Regulation 7 sets out the powers for enforcing the Regulations. Enforcement action can be taken by a “relevant person”. This is usually a police constable, but also includes a person designated by the Department of Health. If a relevant person who believes someone breaking any of the requirements discussed above, they can enforce the Regulations by:

  • giving them a prohibition notice

If a relevant person who believes there is gathering against the rules of Regulations 5 and 6, they can enforce the Regulations by:

  • directing the gathering to disperse
  • directing any person in the gathering to return to the place where they are living; or
  • removing any person from the gathering (reasonable force can be sued if necessary)

There are also similar powers in relation to a child who is at a gathering which is not within the rules of the Regulations. A police officer can direct a person who has responsibility for the child to take the child back to where they live, and the person with responsibility for the child must make sure the child complies with any direction from a relevant person. Where a relevant person has reasonable grounds to believe that a child is repeatedly breaking Regulations 5 or 6, the relevant person may direct a person who has responsibility for the child to make sure that the child complies with that restriction.

Regulation 7(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 8 sets out three criminal offences which may be committed:

  • Disobeying a requirement in Regulations about the restriction or closure of businesses (not addressed in this Explainer) or gathering in groups of more than 30 people outdoors unless for one of the specified purposes, or 10 people indoors, without a reasonable excuse
  • Stopping a person carrying out a function under the Regulations without a reasonable excuse
  • Disobeying a direction or reasonable instruction 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. 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, 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 FPN received, up to a maximum of £960.

Please note that it is not an offence to attend a funeral and fail to follow the guidance on funerals issued by Northern Ireland’s Department of Health (as directed by Regulations 5 and 6), and you cannot be issued a FPN for this.

What does this mean for people?

The Regulations mean gather in groups larger than 15 outdoors, or six indoors, you must be attending an organised outdoors gathering for one of the specific purposes in Regulations 5 and 6, or be attending a funeral. If you meet in bigger groups than allowed, you are likely to be committing an offence under the Regulations. The police can direct you to go home and remove you from the gathering, and you may be issued with a fixed penalty notice or start criminal proceedings.

 

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 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.
  • The right to non-retrospective punishment (Article 7) which requires criminal offences to be known by the public (foreseeable and accessible).
  • The right freely assembly (Article 11), which covers the ability to gather in public spaces.
  • 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.
  • The right to manifest religious beliefs (Article 9) by attending places of worship and similar.
  • 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-stage plan for slowly easing the coronavirus lockdown. Northern Ireland has now reached many elements of steps 4 and 5 – such as the reopening hairdressers (step 4) and cafes, restaurants, pubs, libraries and cinemas (step 5).

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.

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 Lockdown and Police Powers in Northern Ireland Explainer series here:

  1. 1 June 2020

  2. 29 June 2020

  3. 7 July 2020

  4. 29 July 2020
  5. 16 September 2020