PLEASE NOTE: On 22 September 2020, the First Minister announced planned changes to the "lockdown" regulations. We will update this Explainer when the changes are published.

16 September 2020

You can download this Explainer as a PDF here.

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 Scottish Government’s advice on staying safe and protecting others. 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. These changes have been made by the Government, without debate or votes in the Scottish Parliament; this is permitted with these Regulations.

Some areas of Scotland are under local lockdown. This Explainer will not give information on local lockdowns, but on the law covering the whole of Scotland. For more information on local lockdowns in Scotland, see the Scottish Government’s Guidance on local advice and measures.


What are the Regulations?

The original Health Protection (Coronavirus, Restrictions) (Scotland) Regulations 2020 were enacted by the Government and came into force on 26 March 2020.

Originally these Regulations applied during the “emergency period” of Covid-19 and meant that:

  • certain premises and businesses must close
  • certain business activities are restricted
  • restrictions are placed on people’s movement (lifted 10 July 2020)
  • gatherings are restricted
  • there is a requirement to wear face coverings whilst on public transport (since 22 June 2020) and whilst in shops (10 July 2020)

These Regulations were amended many times over April, May, June, July and August 2020.

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.

The Regulations set out what actions can by a ‘relevant person’ enforce these restrictions. A ‘relevant person’ in this situation means this is a police constable, a police community support officer (PCSO) or a person designated by the Scottish Ministers. Failure to comply with an enforcement action is criminal offence punishable by a fine.

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. The first review must happen by the 31 October 2020. Under Regulation 3(3) if these restrictions are no longer necessary, they must be terminated.

On 21 May 2020, the Scottish Government published Coronavirus (COVID-19): framework for decision making - Scotland's route map through and out of the crisis. This provides a Road Map for Scotland to transition out of lockdown. Scotland moved into Phrase 3 of the Road Map in July 2020. The most recent update on this came on 10 September 2020, with the publication of Coronavirus (COVID-19) Phase 3: Scotland's route map update – 10 September 2020. This update says that Scotland has not yet met the criteria for progressing to Phase 4 of the Route Map.

Other changes will be allowed in the future, if the virus is controlled, as per the roadmap.

 

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”.

 

What are the changes?

Restrictions on Movement

As of 10 July, restrictions on movement were lifted. Please see previous versions of this Explainer for details on the old restrictions.

Restrictions on Gatherings

Restrictions on gatherings have been in place since March 2020. The new Regulations also include restrictions on gatherings. These new Regulations tighten the rules on gatherings – the rules had been gradually relaxed by amendments to the old Regulations.

Part 3 of the new Regulations contains the current rules on gatherings. There are different rules for gatherings in public places, in “private dwellings” and for parties in private dwellings. Under these Regulations, a “gathering” means “a situation where two or more persons, who are not members of the same household, are present together in a place in order to engage in any form of social interaction with each other”.

Restriction on public gatherings (Regulation 10)

The new rules say that people cannot participate in a gathering in a public place of more than six people from more than two households. A “public place” means “a place to which the public, or a section of the public, has access whether on payment or otherwise”. This would include restaurants, bars and cafés.

There are some situations where a gathering of more than six people in a public place is allowed:

  • if such a gathering is for one of the following specific purposes, it is not against the law:
    • work or providing voluntary or charitable services,
    • childcare, education or training,
    • attending a place of worship,
    • facilitating a house move,
    • an organised activity which—
      • takes place outdoors, or
      • is for persons under 18 years of age (whether indoors or outdoors),
    • organised exercise
  • if such a gathering relates to a funeral, marriage ceremony or civil partnership registration it is not against the law.
  • if such a gathering takes place in student accommodation it is not against the law if:
    • everyone in the gathering is using cooking, dining, toilet or washing facilities which are shared with any person who is not a member of their household, and
    • has the accommodation as their only or main residence.

Note: an activity or exercise is “organised” if it is organised by:

  • person who is responsible for carrying on a business or providing a service,
  • a person who is responsible for a place of worship,
  • a charity or other not for profit organisation,
  • a club or political organisation, or
  • the governing body of a sport or other activity

Note: children under 12 years old are not included in the number of persons participating in a gathering but are included when counting the number of households participating in a gathering. This means that a gathering of more than six people is allowed if, for example, there are six adults and there are also children as long as the children come from the two households involved in the gathering only. If children came from other households too, they would be counted as people involved in the gathering and the gathering would be larger than six and therefore break the law.

Restriction on gatherings in private dwellings (Regulation 9)

The restrictions on gatherings in private dwellings are similar to the restrictions on gatherings in public places. People cannot participate in a gathering in a private dwelling of more than six people from more than two households. A “private dwelling” means “a caravan, houseboat or any building, or part of a building, used or intended to be used as a dwelling (including any garden or yard and any indoor passage or stair, outhouse or other structure of the dwelling)”. Effectively, this means people’s homes. For the full definition of a private dwelling, please see Regulation 2 of the new Regulations.

There are some situations where a gathering of more than six people in a private dwelling is allowed:

  • if a gathering is for one of the following specific purposes, it is not against the law:
    • work or providing voluntary or charitable services,
    • childcare, education or training,
    • facilitating a house move.
  • if a gathering relates to a funeral, marriage ceremony or civil partnership registration it is not against the law.
  • if a gathering takes place in student accommodation it is not against the law if:
    • everyone in the gathering is using cooking, dining, toilet or washing facilities which are shared with any person who is not a member of their household, and
    • has the accommodation as their only or main residence.

The same rules on children apply as for gatherings in public places (above).

The new Regulations also contain a power for police people to enter a private dwelling if they think people are gathering there against the rules and if it is necessary to do so to stop the gathering. To enter, the police person must have the consent of the person who lives at that home/similar private property (“the occupier of the dwelling”), OR a warrant from a Sheriff or judge authorising a constable to enter the dwelling.

Please see previous versions of this Explainer for details on the old restrictions.

Restriction on parties in private dwellings (Regulation 10)

Additionally, it is against the law to attend a party at a private dwelling. A party is defined as a social gathering of more than 16 people from more than one household.

There are some situations where a social gathering of more than 16 people in a private dwelling is not classed as a party:

  • if the gathering is for one of the following specific purposes:
    • work or providing voluntary or charitable services,
    • childcare, education or training,
  • if the gathering relates to a funeral, marriage ceremony or civil partnership registration.
  • if the gathering takes place in student accommodation:
    • everyone in the gathering is using cooking, dining, toilet or washing facilities which are shared with any person who is not a member of their household, and
    • has the accommodation as their only or main residence.

Children under 12 years old are not included when counting the numbers of people at a party.

Police have the power to enter a property if they think a party is happening there against these rules and if it is necessary to do so to stop the gathering. The police person must have asked someone involved in the party to stop participating in the gathering and if this request has not been obeyed, they can then enter the property.


Face Coverings

Since 22 June, it has been a requirement to wear face coverings whilst on public transport. As of 10 July, you must also wear face coverings whilst in shops. The changes made to the old Regulations on 8 August mean that a face covering in now mandatory in other indoor public places – such as cinemas, libraries, museums and places of worship. The indoor places where face coverings are required are now listed in Schedule 1 to the new Regulations

Please see BIHR Explainer: Face Coverings Scotland for more on this.

 

Requirements on Businesses and Premises

The Regulations also contain rules on what business and premises can open, and the steps they need to take to do so. Most businesses have been allowed to reopen over the past months, but some still need to remain closed.

The requirements on businesses include:

  • Requirement to close certain premises to members of the public (including nightclubs, concert halls and soft play areas).
  • Requirement on businesses and premises which are open (including places of worship) to take reasonable measures to minimise risk of exposure to coronavirus, such as:
    • Maintaining social distancing
    • Reducing the numbers of people at the premises
    • Installing barriers and screens
    • Controlling the use of shared facilities such as toilets and kitchens.
  • Requirement on businesses and premises which are open to take into account to guidance issued by the Scottish Ministers about measures which should be taken.
  • Requirement on restaurants, cafes, bars, public houses, etc. (“hospitality premises”) to collect visitor information and share information with public health officials if asked to.

For more information on what the law says for businesses and premises, you can find it all in Part 2 of the new Regulations.


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 breaking a requirement in these Regulations without a reasonable excuse, they can enforce the Regulations by giving a prohibition notice.

If a relevant person believes people are gathered against the rules in Regulations 8, 9 and 10, they can:

  • direct the gathering to disperse,
  • direct any person in the gathering to return to the place where the person is living, or
  • remove a person to where they live (reasonable force may be used if necessary and proportionate).

There are also similar powers in relation to a child being outside of their home. A police officer can direct a person who has responsibility for the child to take the child back to where they live. For gatherings of more than 3 people that do not fall within the list of exemptions above, a relevant person can direct them to disperse, to return home, or remove them home.

Regulation 7(8) specifically states that enforcement actions, including the giving of directions, should only be taken when necessary and proportionate.

Police also have powers to enter a property where they believe a gathering or party to be happening against these Regulations, if certain steps are followed. This power was explained in more detail earlier in this Explainer.


Criminal Offences and Fixed Penalty Notices

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

  • Disobeying a requirement in these Regulations, such as by:
    • Failing to wear a face covering or gathering without a reasonable excuse
    • Failing to collect and share information to minimise risk of spread of coronavirus, if you are responsible for hospitality premises
  • 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 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, 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.

What does this mean for people?

Initially, the Regulations meant that to leave and be outside of your home you must have had a reasonable excuse. Please see previous versions of this Explainer for details on the old restrictions.

Many of these restrictions have now been lifted, however there are still restrictions on gatherings of more than six people and there is the requirement to wear a face covering in certain indoors places or on public transport.

If you do not abide by the Regulations then you are likely to be committing an offence under the Regulations. The police can direct you to go home, 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?

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.

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 Lockdown and Police Powers in Scotland Explainer series here:

1. 26 May 2020

2. 1 June 2020

3. 6 July 2020

4. 28 July 2020

5. 20 August 2020

6. 16 September 2020