15 September 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 and who you can meet with in Wales are set out in Regulations. 

The original Regulations came into force on 26 March 2020 and were amended 7 times. These original Regulations and the amendments have now been revoked – meaning they are no longer the law. 

They have been replaced by The Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations (“Regulations No. 2”), which were made on 9 July 2020, and came into force in two stages, either on 11 July 2020 or 13 July 2020. They were amended on 20 July and 24 July 2020 to allow certain businesses such as holiday accommodation, camping sites and salons to reopen from 25 July 2020. Further amendments came into force on 3 August 2020, 10 August 2020, 17 August 2020, 22 August 2020, 28 August 2020 and 14 September 2020. The Regulations and their most recent amendments introduce tighter restrictions on gathering indoors in Wales, and we will outline the changes in this explainer.

Tip: When viewing the new Regulations No. 2, 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.

Regulations No. 2 must be reviewed by Welsh Ministers by 10 September 2020 then at least once every following 21 days. They must review whether the restrictions and requirements the Regulations introduced are proportionate to what the Welsh Ministers seek to achieve by them – which is a public health response to threat of Covid-19. You can read the First Minister of Wales’s first Written Statement on the review of Regulations No. 2 here (from 11 September 2020).

This Explainer focuses on the parts of the Regulations which deal with restrictions on people’s movements and gatherings and the powers of enforcement given to police and other officials.

On 8 September 2020, new amendments to Regulations No. 2 introduced the first “local lockdown” in Wales in the county borough of Caerphilly. If you live in Caerphilly, rules on forming an extended household, on movement and on gatherings will be different and this Explainer may not apply to you. Please read the Caerphilly Amendment Regulations carefully, and their accompanying explanatory note, which can both be found here. You can read the Welsh Government’s Guidance on the local lockdown in Caerphilly here.

The Welsh Government’s ‘Coronavirus regulations: frequently asked questions’ guidance was updated on the 14 September 2020 – you can read it here. You can also read the Welsh Government’s ‘Coronavirus legislation and guidance on the law’ here, which was last updated on 11 September 2020. Please note that Guidance may not be as up-to-date as the latest Regulations.

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, and were then amended a number of times. These Regulations have now been revoked (removed and are no longer the law) and replaced by The Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020 (“Regulations No. 2”).

These Regulations apply during the “emergency period” of Covid-19 and the new Regulations No. 2 mean that:

  • certain premises, businesses (including any indoor premise used for the consumption of food and drink) and public paths must stay closed (Part 2)
  • guidance on measures to minimise risk of exposure to coronavirus for people who are responsible for 'open premises' and while working is introduced, and also new rules on wearing face coverings (Part 3)
  • restrictions continue on people’s movement and gatherings (Part 4)

The Regulations set out when restrictions can be enforced by an ‘enforcement officer’. An ‘enforcement officer’ means 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. 

Failure to comply with an enforcement action is criminal offence punishable by a fine (Regulation 20). 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.

 

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?

NEW Minimising risk of exposure to coronavirus at open premises and while working

The new Regulations No. 2 have a new section (Part 3) which is about staying safe while working and how to reduce the risk of exposure to Covid-19.

Regulation 12 places duties on people responsible for premises open to the public (for example, all the businesses now allowed to open as listed in Schedule 4, places of worship and community centres), or for work carried out on those premises, to take measures to reduce the risk of exposure to Covid-19 on those premises.

Under Regulation 12(2) (introduced on 10 August 2020 and amended on 17 August 2020), such people are required to:

  • Take all reasonable measures to ensure 2 metres is maintained between people on the premises

  • Take any other reasonable measures, for example measures which limit close face to face interaction and maintain hygiene such as—
    • changing the layout of premises including the location of furniture and workstations;
    • controlling use of entrances, passageways, stairs and lifts;
    • controlling use of shared facilities such as toilets and kitchens;
    • otherwise controlling the use of, or access to, any other part of the premises;
    • installing barriers or screens;
    • providing or requiring use of personal protective equipment

  • Provide information to those entering or working at premises about how to minimise risk of exposure to Covid-19

  • Additional measures may include:
    • stopping certain activities
    • closing a part of the premises.
    • collecting contact information from people at the premises and retaining it for 21 days for the purpose of providing it to any of the following people if they request it—

      • (i)the Welsh Ministers,
      • (ii)a public health officer,
      • (iii)a person designated by the local authority in whose area the premises are located to process information for the purposes of contacting persons who may have been exposed to coronavirus

Regulation 13 gives guidance on how to apply the requirements of Regulation 12, and those people who have duties under Regulation 12 must take into account that guidance. For these purposes 'premises' includes public transport.

Regulations No. 2, as amended on 24 July 2020 and 14 September 2020, also include a requirement to wear face coverings on public transport from 27 July under Regulation 12A AND a new requirement to wear face coverings in certain indoor public places from 14 September. For more information on when you need to wear a face covering, please see our Explainers on face coverings – there is a specific Explainer for each of the nations of the UK, including Wales.

Forming a “bubble” with another household

Since 6 July, households in Wales have been able to join together and agree to be treated as one extended household (“bubble”).

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

On 22 August 2020, rules on forming an extended household came into law with an amendment to the new Regulations No. 2 in Wales. Under new Regulation 2A of the Regulations, up to four households can now join together to form a bubble. Between 6 July and 22 August 2020, only two households could form a bubble.

All adults in the separate households must agree to being treated as a single extended household. If an adult in a household stops agreeing to being in the extended household, that household is no longer part of the extended household/bubble. Any household can only be part of one bubble. This is so even if the household stops being part of one bubble - it cannot then become part of another bubble.

This may be different for areas in Wales under local lockdowns - please refer to the appropriate law and guidance.

Restrictions on Movement

Under Regulation 8 of the old Regulations as amended, from1 June 2020 no person could leave the area local to the place where they are living or remain away from that area without a reasonable excuse.

This requirement to stay local was lifted earlier in July. Since 6 July 2020, people can travel into, out of and within Wales. This is perhaps the greatest recent change for people living in Wales. You can read Mark Drakeford’s written statement on Visiting Wales here.

This may be different for areas in Wales under local lockdowns - please refer to the appropriate law and guidance.

Restrictions on Gatherings

Since 22 June, people have been allowed to gather indoors with:

  • members of their own household (including members of up to 4 other households if part of an exclusive extended household)
  • their carer, or
  • a person they are providing care to.

The 14 September 2020 amendments made the rules on gathering indoors more restrictive for those in extended households. These amendments state that people cannot gather indoors with “more than 6 members of an extended household, not including any children under the age of 11”. This means only 6 members over the age of 11 of an extended household can gather indoors at any one time. This applies in restaurants and pubs as well as in people’s home.

For households which are not part of an extended household, the same rules continue to apply – you can only gather indoors with members of your own household. The exception to this rule still applies for all households (including extended households) – people can gather indoors with more than just their household/6 members of an extended household if the additional person is a carer or a person someone in the household is providing care to.

To gather indoors with anyone more than those listed above, you must have a reasonable excuse. From 28 August 2020, 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
  • 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 carer of a person attending
  • participate in a gathering of no more than 30 people at a premise listed in Schedule 4 to:
    • (i) celebrate a solemnization of a marriage or formation of a civil partnership that takes place on or after 22 August 2020
    • (ii) celebrate the life of a deceased person whose funeral is held on or after 22 August 2020
  • attend a place of worship
  • fulfil a legal obligation, including attending court, bail conditions or legal proceedings
  • access or receive public services
  • access childcare or participate in supervised activities for children
  • access educational 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)
  • undertake activities in connection with the purchase, sale, letting, or rental of residential property
  • avoid injury or illness or escape a risk of harm
  • exercise with others, in a gathering of no more than 30 people, at a fitness studio, gym, swimming pool, other indoor leisure centre or facility or any other open premises
  • visit a person who is resident in a care home, hospice, or in secure accommodation

A “vulnerable person” is defined under the Regulation 2 as including:  

  1. “any person aged 70 or older;
  2. any person under 70 who has an underlying health condition
  • any person who is pregnant;
  1. any child;
  2. any person who is a vulnerable adult within the meaning given by section 60(1) of the Safeguarding of Vulnerable Groups Act 2006.”

These rules on gathering indoors do not apply to a person who is homeless.

From 6 July, people in Wales have been able to gather outdoors with:

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

These rules are restated in the new Regulations No. 2 in Regulation 14.

Amendments made on 3 August 2020 significantly relaxed the rules on gatherings outdoors. They mean that from 3 August, people have been able to gather outdoors in groups of up to 30 people.

People can only be gathered outdoors in groups of more than 30 people if they have a reasonable excuse, which includes the need to:

  • work or provide voluntary or charitable services
  • where the person is an elite athlete, train or compete
  • meet a legal obligation
  • access or receive public services
  • access childcare or participate in supervised activities for children
  • access educational services.

Having said this, these rules do not apply to organised outdoors events of up to 100 people which have been authorised in writing by Welsh Ministers in accordance with any conditions specified in writing by the Welsh Ministers. An “organised outdoor event” is one that:

  • is outdoors
  • is organised by:
    • a business
    • a public body or a charitable institution
    • a club or political organisation
    • the national governing body of a sport or other activity
  • and where the person organising it has:
    • carried out a risk assessment
    • and followed the requirements on minimising risk of exposure to coronavirus at open premises and while working (found in Regulations 12 and 13 of Regulations No. 2, which we explained earlier in this Explainer)

On 28 August 2020, new amendment regulations introduced a restriction on organising certain unlicensed music events of more than 30 people. You can find these rules at Regulation 14B of Regulations No. 2.

This may be different for areas in Wales under local lockdowns - please refer to the appropriate law and guidance.

Working from Home

Regulation 8A of the old Regulations (in force from 1 June 2020) stated that there is a requirement to continue to work from home where reasonably practicable. This requirement has been removed by the new Regulations No. 2, as updated on 24 July. From 25 July 2020, there is no longer a requirement to continue to work from home where reasonably practicable.

This may be different for areas in Wales under local lockdowns - please refer to the appropriate law and guidance.

The Powers for Enforcing the Regulations

Part 5 of Regulations No. 2 sets out the powers for enforcing the Regulations. Enforcement action can be taken by an “enforcement officer”. This usually means a police officer, but also includes 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. An enforcement officer has a range of powers to enforce the new Regulations No. 2, including:

  • Issuing compliance notices to businesses open against Regulations 6 and 7
  • Removing a person from a public path or access land which is closed under Regulation 11, and can use reasonable force to do so if necessary
  • Directing someone not wearing a face covering (against Regulation 12A) to not board public transport, and removing such a person from the transport, using reasonable force if necessary
  • If an enforcement officer believes people are gathered outside in groups larger than allowed by Regulations 14 without a reasonable excuse they:
    • direct the gathering to disperse
    • direct people to return to where they live or
    • remove people to where they live (reasonable force may be used if necessary)
  • A power of entry under Regulation 19 into any premises if the enforcement officer:
    • has reasonable grounds for suspecting that a requirement under these Regulations is being, has been or is about to be broken on the premises, and
    • considers it necessary to enter the premises for the purpose of establishing whether the requirement is being, has been or is about to be broken. 

There are also similar powers in relation to a child who is gathered with people against Regulation 14 or is failing to wear a face covering against Regulation 12A. A police officer can:

  • direct a person who has responsibility for the child to take the child back to where they live.
  • direct a person who has responsibility for the child to secure, so far as reasonably practicable, that the child complies with the requirement to wear a face covering

An enforcement officer can also take other action they believe is necessary and proportionate to enforce the Regulations. 

The amendment to the Regulations on 10 August 2020 introduced new powers of enforcement officers under new Regulation 17A and Schedule 5 to enforce Regulations 12(2) on minimising risk of exposure to and spread of coronavirus at open premises and while working. These powers include:

  • Issuing a “premises improvement notice”
  • Issuing a “premises closure notice”

Criminal Offences and Fixed Penalty Notices

Regulation 20 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 (Regulations 14, 14A and 14B)
    • failing to wear a face covering on public transport (Regulation 12A) or in certain indoor public places (Regulation 12B)
    • failing to close your business if it is one of the listed businesses which need to be closed (Part 2)
    • failing to close your business if it has been issued a “premises closure notice” after failing to take the steps required to reduce risk of exposure to or spread of coronavirus (Regulation 12 and Schedule 5, from 10 August 2020)
  • 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 21, if an enforcement officer reasonably believes that an offence has been committed by a person aged 18 or over they can issue a fixed penalty notice (FPN). This 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 £60 (£30 if paid within 14 days of the date of the FPN), a second is £120, and a third FPN is £240, a fourth FPN is £480, a fifth is £960, and a 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.

 

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 gather indoors (including homes, restaurants and pubs) with members of your own household, or in groups of up to 6 members of an exclusive extended household. Children under 11 are not included in this number. To meet with anyone else indoors you must have one of the reasonable excuses listed in Regulation 14, or a reason similar to these (because it says “including” it is not exhaustive).

You can only meet outdoors with up to 30 people - to meet with more people outdoors you must have one of the reasonable excuses listed in Regulation 14A, or a reason similar to these. 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.

You can also attend an organised outdoor event of up to 100 people if the event meets the conditions discussed earlier and found under Regulation 14A(3).

 

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 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.

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”. More recently, the Welsh Government published their “Coronavirus control plan for Wales” in August. You can read it 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 Wales Explainer series here:

  1. 26 May 2020 Explainer

  2. 1 June 2020 Explainer

  3. 24 June 2020 Explainer

  4. 6 July 2020 Explainer

  5. 29 July 2020 Explainer

  6. 10 September 2020 Explainer

  7. 15 Septmber 2020 Explainer