(Updated 7 July 2020)

You can download this Explainer as a pdf here.

The “lockdown” began in the UK on the 23 of March 2020. The legal rules about when you can leave your house in Wales are set out in Regulations. The original Regulations came into force on 26 March 2020 and have been amended 7 times.

This Explainer focuses on the parts of the Regulations which deal with restrictions on people’s movements (amended and updated on 3 and 24 April, 11, 21 and 29 May, 22 June and 6 July 2020). 

The First Minister of Wales’ written statement on the review of the Regulations in Wales was updated on the 3 July, and the fifth formal review of the Regulations will be carried out by 9 July. The Welsh Government’s Guidance was updated on the 2 July 2020, you can read it here. Please note that the Guidance may not be as up-to-date as the latest Regulations.

The new amendment Regulations came into force on Monday 6 July 2020. You can read them here. They mark quite a significant change to the lockdown and the rules on people’s movements in Wales, and we will outline the changes in this explainer.

 

What are the Regulations? 

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

These Regulations apply during the “emergency period” of Covid-19 and mean that: 

  • certain premises and businesses must close (Regulation 4)
  • certain business activities are restricted (Regulation 5)
  • guidance on maintaining distancing of 2 metres between persons (Regulation 7A)
  • restrictions are placed on people’s movement and gatherings (Regulation 8)
  • requirements to close and not enter certain public paths and land (Regulation 9) 

The Regulations set out when restrictions can be enforced by a ‘relevant person’. A ‘relevant person’ in this situation means a police constable, a police community support officer (PCSO) or a person designated by the Welsh Ministers.

Failure to comply with an enforcement action is criminal offence punishable by a fine (Regulation 12). As these are Regulations, they are a form of delegated or secondary legislation. This means they come from the Welsh Government, not from an Act of the Welsh Assembly. Welsh Ministers issue the Regulations and under Regulation 3(2) they are responsible for reviewing the need for the restrictions and requirements, and if needed whether they are proportionate, every 21 days.

 

Why have they been introduced? 

These Regulations have been introduced to provide a legal framework for restrictions on people’s movements during “lockdown”. The Welsh Government states that the Regulations are, “For the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Wales.”

 

What are the changes?

Guidance on maintaining a social distance of 2 metres between people

Regulation 7A (inserted on 7 April 2020 and updated) states that certain businesses that are allowed to stay open must have regard to guidance from the Welsh Government about reasonable measures to ensure there is a distance of 2 metres between people. (This covers businesses in Regulations 4(1) (as applies to workplace canteens), 4(5B), 5(3C), 6(1) or 2(a)m 6A(1), 7(1), (3), (4A), (5)).

Regulation 7 (as amended on 22nd June) states that a place of worship may be used, if all reasonable measures are taken to ensure a distance of 2 metres is maintained between every person, “(aa)for prayer by— (i)an individual, (ii)members of the same household, or (iii)an individual and the individual’s carer, which does not form part of communal worship”. A place of worship may also be used to broadcast an act of worship, marriage ceremonies or formations of civil partnerships, and funerals.

Forming a “bubble” with another household

From 6 July, two households in Wales can join together and agree to be treated as one extended household (“bubble”). For two households to join, all of the adults of both households must agree.

Please note that a household may only agree to be treated as a single household with one other household. Also, if a bubble of two households ends, neither household may agree to be treated as a single household with any other household.

You can read the Welsh Government’s Guidance on extended households here.

Restrictions on Movement

Regulation 8 was amended earlier in the lockdown to state that from the 1 June 2020 no person may leave the area local to the place where they are living or remain away from that area without a reasonable excuse. The First Minister of Wales, Mark Drakeford provided a written statement to explain what “stay local” meant in this context: “use five miles as a guide but recognising this is a flexible concept which can vary depending on people’s circumstances.”

The newest Regulations lift the requirement to stay local. Now, from the 6 July, people can travel into, out of and within Wales. This is perhaps the greatest change for people living in Wales. You can read Mark Drakeford’s new written statement on Visiting Wales here.

Restrictions on Gatherings

Since 22 June, people have been allowed to gather indoors with members of their own household, their carer, or a person they are providing care to.

The latest regulations update Regulation 8 to relax the restrictions on outdoor gatherings a little more. From 6 July, people in Wales can now gather outdoors with:

  • members of their household or one other household,
  • their carer, or
  • a person they are providing care to.

To gather outdoors or indoors with anyone more than those listed above, you must have a reasonable excuse. From 6 July, the list of reasonable excuses includes the need to (but is not limited to):

  • obtain medical assistance
    (including accessing dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health, and veterinary services)
  • provide care or assistance to a vulnerable person
  • provide or receive emergency assistance
  • donate blood
  • work or provide voluntary or charitable services (but see also regulation 8A)
  • where the person is an elite athlete, train or compete
  • attend a solemnization of a marriage or formation of a civil partnership as a party to the marriage or civil partnership, if invited to attend, or as the carer of a person attending.
  • attend a funeral as a person responsible for arranging the funeral, if invited by such a person or as the care of a person attending
  • fulfil a legal obligation, including attending court, bail conditions or legal proceedings
  • access critical public services (such as childcare services and social services)
  • move children between the houses of parents that do not live together and continue contact between parents and children (“parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child)
  • move home (you can read the Welsh Government’s Guidance on Moving home during the coronavirus pandemic here)
  • prepare a residential property for persons to move in
  • visit estate or letting agents, developer sales offices or show homes
  • view an unoccupied residential property when related to the purchase, sale, letting or rental of that property
  • participate in activities organised by outdoor visitor attractions
  • avoid injury or illness or escape a risk of harm

A “vulnerable person” is defined under the Regulation 1 as including:  

“(i) any person aged 70 or older;
(ii) any person under 70 who has an underlying health condition, including but not limited to, the conditions listed in Schedule 2;
(iii) any person who is pregnant;
(iv) any child;
(v) any person who is a vulnerable adult within the meaning given by section 60(1) of the Safeguarding of Vulnerable Groups Act 2006.”

Working from Home

Regulation 8A (in force from 1 June 2020) states that there is a requirement to continue to work from home where reasonably practicable. This includes when providing voluntary or charitable services when it is reasonably practicable for the person to do this from the place where they are living. The new regulation explains that “from home” includes, “the premises where they live together with any garden, yard, passage, stair, garage, outhouse or other appurtenance of such premises.”

Additional Changes

In addition to the changes outlined above, from 6 July outdoor visitor attractions can open. The First Minister has explained that he hopes this “will pave the way for the tourism sector to begin re-opening from 11 July, if conditions allow.”

Indoor visitor attractions are still required to remain closed.

 

The Powers for Enforcing the Regulations

Regulation 10 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 believes people are gathered outside in groups larger than just two households without a reasonable excuse (in Regulation 8), they can enforce the Regulations by: 

  • directing the gathering to disperse
  • directing people to return to where they live or
  • removing people 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.

A relevant person can also take other action they believe is necessary and proportionate to enforce the Regulations, including requiring a person to provide information on whether two households have formed a bubble (one extended household).

Criminal Offences and Fixed Penalty Notices

Regulation 12 sets out three criminal offences which may be committed:

  • Disobeying a requirement in the Regulations, such as gathering with more people than is allowed without a reasonable excuse (Regulation 8) or failing to close your business (Regulation 4)
  • 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 13, 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 without going to court. However, if the police believe the offence is serious (e.g. they 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 FPM received, up to a maximum of £1920.

The update to the Regulations as of 6 July states that any offence committed before 6 July should be looked at alongside the Regulations at the time- “as if these amendments had not been made.”

 

What does this mean for people?

The Regulations mean that you can leave and be outside of your home more freely now, but still with restricted contact with other people. You can only meet outdoors with one other household and can only be indoors with members of you own household – to meet with more people you must have one of the reasonable excuses listed in Regulation 8, or a reason similar to these (because it says “including” it is not exhaustive). If you do not have a reasonable excuse 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.  

The list of reasonable excuses may be wider that the small number of reasons for leaving home which is usually advertised by the Government communications.

 

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 Welsh Government have said that at the next review on 9 July, they will consider a range of specific options for re-opening the hospitality sector (bars and restaurants) outdoors from 13 July, self-contained holiday accommodation from 11 July and hairdressing by appointment. 

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.”

The JCHR Inquiry is accepting evidence from the public and experts in writing and through oral sessions and is asking questions of the government and conducting scrutiny sessions with Ministers. A key feature of the JCHR Inquiry is the use of these Regulations and their enforcement by the police. For information on the JCHR Inquiry visit the Reviews section of our Human Rights and Coronavirus Hub here, and the JCHR Inquiry page here.

The closing date to submit evidence to the JCHR is 22 July 2020.

On 24 April 2020 the Welsh Government published “Leading Wales out of the coronavirus pandemic: a framework for recovery”. The Welsh Government states that this Framework sets out the 1) measures and evidence to judge the infection and transmission rates in Wales; 2) principles to examine proposed measures to east restrictions; and 3) how the Government will enhance public health surveillance and response systems to track the virus as restrictions ease and protecting people’s health. This should be read with a document published on 15 May 2020, “Unlocking our society and economy: continuing the conversation”.

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 Wales Explainer series here:

  1. 26 May 2020 Explainer

  2. 1 June 2020 Explainer

  3. 24 June 2020 Explainer

  4. 6 July 2020 Explainer