6 July 2020

You can download this BIHR 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 Government’s guidance on social distancing. The guidance is not the law, the law is set out in Regulations. The Government’s guidance was called staying at home (social distancing). The Guidance has also changed significantly in recent weeks. With the change of Regulations on 3 July 2020 the Guidance on Staying alert and safe (social distancing) was also updated. Additional guidance documents have also been published by the UK government, which apply from the 4 July onwards. These include Coronavirus outbreak FAQs: what you can and can't do after 4 July and Meeting people from outside your household. Both of these guidance documents refer to the ideas of social “bubbles” and restricting your meetings to 6 people and/or a set number of households. It should be noted that these are guidance documents. These restrictions are not the law on lockdown.

 

The legal rules about lockdown 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 the parts of the Regulations which deal with restrictions on people’s movements, as updated on the afternoon of Friday 3 July 2020. These Regulations make significant changes to previous versions of the Regulations on what you can and cannot do. There are a lot of relaxations to the previous Regulations.

 

 

What are the Regulations?

 

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, were enacted by the Government and came into force on 26 March 2020. These were updated a number of times since then on the 13 May 2020, On 1 June 2020 this law was changed significantly by the 1 June 2020, and 13 June 2020.

 

The current version of The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 were published on 3 July 2020, and came into force on Saturday 4 July 2020.

 

You can view the Regulations, with all the changes here (ensure you have selected “Latest available (Revised)" in the What Version box).

 

The Regulations apply during the “emergency period” of Covid-19. Under the updates since 4 July 2020 the Regulations mean that: 

 

  • certain premises and businesses still have to remain shut; but those which are not listed in the Schedule are allowed to open. (Regulation 4)
  • many of the restriction on people’s movement have been reduced or removed. This has now changed to permitting gatherings indoors or outdoors in private dwellings or land of under 30 people. But the organiser does have to do a risk assessment. (NEW Regulation 5)
  • a new power for the Government Health Minister (Secretary of State for Health and Social Care) to restrict access to public places by making a Direction (or statement) rather than having to make new Regulations.

 

The Regulations set out what actions can be taken by a ‘relevant person’ to enforce these restrictions. A ‘relevant person’ is a police constable, a police community support officer (PCSO) or a person designated by the Secretary of State. Failing to comply with an enforcement action is a criminal offence punishable by a fine (Regulation 9).

 

As these are Regulations, they are a form of delegated or secondary legislation. This means they come from the Government, not from parliament in an Act. They have been made using emergency procedures, which means there has been no debate in parliament about these Regulations before they become the law.

 

Under Regulation 3, the Government Minister that issues the Regulations, the Secretary of State for Health and Social Care, is responsible for reviewing these Regulations every 28 days. The first review of these new Regulations should be carried out by the 31 July 2020. Under Regulation 11 these Regulations end 6 months after they enter into force; this is 4 January 2020.

 

Why have they been introduced?

 

These Regulations were introduced to provide a legal framework for restrictions on people’s movements during “lockdown”. As noted above, please remember that the law as set out in the Regulations may not be the same as the Government issued advice and guidance.

 

What are the changes?

 

Restrictions on Movement and Gatherings

 

Previously versions of the Regulations had specific sections that dealt with restrictions on people’s movements and gatherings. The old Regulations prevented you from staying overnight somewhere other than your home unless a reasonable excuse applies (was Regulation 6), allowing linked households, often called “bubbles” (Regulation 7) and restricting gatherings in outside spaces to 6 people (Regulation 7). These have now all been replaced by new Regulation 5.

 

New Regulation 5 is about “restrictions on gatherings”. This now states that during the emergency period that the Regulations apply for you:

 

  • Cannot take part in a gathering of more than 30 persons in a private home or land (or vessel). This means you are allowed gatherings of under 30 people. There are no restrictions on whether people should be from linked households or a limited number of households. Nor is there a time limit on the gatherings, e.g. this does not prevent overnight stays in other people’s homes.

 

  • Where an indoor or outdoor gathering has been organised by a charity or business or public or political body, there is no limit on the number of persons present. But the person who has organised the gathering has to carry out a risk assessment. The Regulations say:

 

  • This risk assessment should meet the requirements for conducting risk assessments under Regulation 3 of the Management of Health and Safety at Work Regulations 1999. This includes for those people/organisations who would not normally have to meet those Regulations.

 

  • The Coronavirus Regulations also state that when deciding if all reasonable risk management measures have been taken, the relevant guidance from the Government should be considered.

 

NEW Power to restrict access to public places

 

New Regulation 6 provides the Secretary of State (the Minister for Health and Social Care) with a new power to issue directions that restrict access to a specific public outdoor place or places.

 

The requirements for issuing a direction are:

 

  • It responds to a serious and imminent threat to public health
  • It is necessary to prevent, protect against, control or provide a public health response to coronavirus infections
  • Proportionate to achieving this purpose
  • The Minister must consult with Chief Medical Officer or one of the Deputy Chief Medical Officers at the Dept for Health and Social Care
  • The direction contains a specific set of information, including the boundaries of the areas, start and end dates and times, and the publishing of the direction and informing the relevant authorities, e.g. the local authority of the area

 

The Minister must review the need for the restriction at least every 7 days. Local authorities have responsibilities to take reasonable steps to ensure that people affected are aware of the direction and prevent access to the restricted area.

 

If an area is closed by a direction you cannot enter it without a reasonable excuse. These excuses are listed in Regulation 6(12) and are similar to the excuses that used to be in place for general restrictions on movements. This says “includes” which means there may be other reasonable excuses which are not listed in the Regulation.  

 

The Powers for Enforcing the Regulations

 

Regulation 7 now 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.

 

A relevant person can enforce these Restrictions if they believe you have not complied with Regulation 4 (business closures), Regulation 5 (gatherings), and Regulation 6(10) and (11) (breaking lockdowns imposed by a direction).  Enforcement can include:

 

  • Issue a prohibition notice to a person they reasonably believe is breaking Regulation 4 by operating a closed business and it necessary and proportionate to stop that person from continuing to breach the Regulation.

 

  • If people are gathering together in a way not allowed by Regulation 5 (e.g. more than 30 people in a private home), they can
    • Direct the gathering to disperse / break up
    • Direct any person in the gathering to return to where they live
    • remove a person from the gathering

 

  • If a person is in an area closed by a direct, a relevant person can
    • Direct the person to leave that area immediately
    • Remove that person from the restricted area
    • believes you have not complied with Regulation 7 (restrictions on gatherings both outside and inside your home) they can enforce the Regulation by:

 

  • They may use reasonable force when removing people, as set out above, if it is necessary.

 

  • For both Regulation 5 and 6 if a relevant person believes a child is breaking the Regulations, they can take the above enforcements actions in relation to a person who has responsibility for the child.

 

  • The above enforcement actions should only be taken whether it is necessary and proportionate to ensure people obey Regulations 5 and 6(11).

 

Criminal Offences and Fixed Penalty Notices

 

Regulation 9 sets out three criminal offences which may be committed: 

 

  • Disobeying a requirement in Regulations about operating a closed business, about gatherings or about lockdown set out by a direction.
  • Stopping a person carrying out a function under the Regulations without a reasonable excuse
  • Disobeying a direction or reasonable instruction to return to where you live or leave an unlawful gathering, 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 (was over 18 until 22 April) 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. they believe multiple offences have been committed) they can issue criminal proceedings in court straight away.

 

If an FPN is issued by the police, a person does not have to accept it. If they do not then 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. 

 

Changes on the 13 May 2020 have increased the potential fixed penalties for breaches of the Regulations from £60 to £100 for a first FPN (£50 if paid within 14 days). The maximum fixed penalty for repeated FPNs was also raised from £960 to £3,200 for six or more breaches.

 

 

What does this mean for people?

 

The changes to the Regulations made on the 4 July significantly relax the legal restrictions that were on people as part of the “lockdown”:  

 

  • No more bans on overnight stays outside of your home. This means the police now cannot question you for being outside of your home, or direct you home, and there is no power to fine you for being outside of your home.

 

  • Gatherings are permitted in your home or your outdoor space of up to 30 people. Legally, this is no longer limited to interacting with your linked households (or “bubbles”).

 

  • Businesses that are allowed to open do not have restrictions on the number of people, but are expected to conduct risk assessments which consider safety and guidance on coronavirus.

 

It is important to keep in mind that the guidance issued by the Government, such as advice on social distancing, may be different to the law. Guidance should be looked as by businesses and other gathering organisers in deciding what risk assessments should take place. But guidance is not the law. (This information should not be taken as encouragement to not follow the guidance, especially social distancing advice, which is an important part of public health measures)

 

 

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. A range of lockdown restrictions may engage the right to liberty, but this does not mean they have been breached, if the safeguards have been met.

 

  • The right to non-retrospective punishment(Article 7) which requires criminal offences to be known by the public (foreseeable and accessible). The changes to the Regulations, the lack of clear promotion about the Regulations and the confusion between the Regulations and Guidance is problematic.

 

  • The right free assembly(Article 11), which covers the ability to gather in public spaces. This covers issues related to people’s ability to meet with others. Restrictions on this right must be lawful, necessary (e.g. to protect the person/wider public) and proportionate.

 

  • 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. Restrictions on this right must be lawful, necessary (e.g. to protect the person/wider public) and proportionate.

 

  • The right to manifest religious beliefs(Article 9) by attending places of worship

and similar. Restrictions on this right must be lawful, necessary (e.g. to protect the person/wider public) and proportionate. Continued restrictions on places of worship raises concerns under this right.

 

  • The right to not be discriminated againstin 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 11 May 2020 the Government published Our plan to rebuild: The UK Government’s COVID-19 recovery strategy, updated on the 26 May. It states that the UK Government’s phase 1 response has been to “contain, delay and mitigate” and that phase 2 will focus on smarter controls, and phase 3 will focus on reliable treatment. Phase 2 sets out 3 steps: Step1: exercise more than once a day, outdoor public places open; Step 2: phased return for primary schools and non-essential retail; Step 3: places of worship, leisure facilities and hospitality open. Step 1 started on 11 May; Step 2 started on 1 June 2020. Step 3 started on 4 July 2020.

 

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 website.

 

On 12 June 2020 the JCHR published a report on the impact the government’s response to Covid-19 (Coronavirus) is having on young people with learning disabilities and/or Autism of young people who are detained. You can read the full report here. The report finds that the Covid-19 crisis has resulted in human rights abuses. Young people's rights are at risk through unlawful blanket bans on visits, the suspension of routine inspections, increased use of restraint and solitary confinement, and the vulnerability of those in detention to infection with Covid-19. You an read our BIHR Explainer on the JCHR report here. You can also read on our BIHR Blog about these issues here.

 

On 3 July 2020 the JCHR published a new report on Human Rights and the Government’s response to COVID-19: children whose mothers are in prison. This follows up on previous reports on this issue, highlighting that the outbreak of Covid-19 has made concerns about the separation of children from mothers in prison even more worrying.

 

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 England Explainer series here:

1. First version

2. 26 May 2020

3. 1 June 2020

4. 15 June 2020