14 September 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 throughout 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. These include Coronavirus outbreak FAQs: what you can and can't do and Meeting with others safely. 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. The latest amendments to the law have made the law restricting gatherings much tighter. This Explainer also covers the Regulations on the increased powers of Local Authorities to help them respond to local outbreaks of Covid-19 in their area, as became law on 18 July 2020.

Tip: when viewing legislation, 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 to the legislation will be included as you view it.

There have also been laws introducing local lockdowns to local areas of the UK, including Leicester, the North of England, Blackburn, Luton, Darwen and Bradford. These local lockdown laws were introduced by secondary legislation and some of them have been amended. This Explainer won’t go into detail about the local lockdowns, but you can find the relevant laws below for the currently in force local lockdowns.

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 These Regulations have since been revoked – meaning they have been removed and are no longer law.

A new version of these Regulations - The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (“Regulations No. 2”) - was published on 3 July 2020, came into force on Saturday 4 July 2020 and has been amended several times, including on 9 July 2020 and 14 September 2020. The amendments made to Regulations No. 2 on 14 September 2020 bring in tighter restrictions to the rules on people gathering.


Another new version of these Regulations, the current version - The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 (“Regulations No. 3”) - came into force on Saturday 18 July 2020. These sit alongside Regulations No. 2.

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 of Regulations No. 2)
  • many of the restrictions on people’s movement have been reduced or removed. Gatherings indoors or outdoors in private dwellings or land of under 30 people were allowed, but as of 14 September 2020 this has been reduced to 6 people (Regulation 5 of Regulations No. 2)
  • Local Authorities have powers to restrict access to premises and public outdoor places in that local authority’s area, and restrict or prohibit events in its area (Regulations 4, 5 and 6 of Regulations No. 3)

Following the amendments made to Regulations No. 2 on 9 July 2020, outdoor swimming pools and waterparks can open from 11 July 2020, and the following businesses can open from 13 July 2020:

  • nail bars and salons
  • tanning booths and salons
  • spas, and beauty salons
  • massage parlours
  • tattoo parlours
  • body and skin piercing services

Regulation 9 of Regulations No. 2 sets out what actions can be taken by a ‘relevant person’ to enforce the restrictions set out in Regulations No. 2. 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. Similarly, Regulation 14 of Regulations No. 3 sets out what actions can be taken by an ‘authorised person’ to enforce the restrictions set out in Regulations No. 3. An ‘authorised person’ under these Regulations is a person designated by the local authority or a constable.

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 of Regulations No. 2, 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.

Under Regulation 19 of Regulations No. 3, these Regulations expire at the end of 17 January 2021.


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? 

UPDATED Restrictions on Movement and Gatherings

Previous versions of the Regulations had specific sections that dealt with restrictions on people’s movements and gatherings. These have now all been replaced by Regulation 5 of Regulations No. 2. It’s worth noting that the new Regulations No. 3 make no changes to the restrictions on movements and gatherings, so Regulations No. 2 still apply as law.

Regulation 5 of Regulations No. 2 is about “restrictions on gatherings”. Regulation 5 was amended on 14 September 2020 and replaced with a new version which makes the rules more restrictive again. Regulation 5 now states that during the emergency period people in England cannot take part in a gathering of more than 6 persons, unless they are part of an extended household (“bubble”) with more than 6 people, or unless it is a certain type of gathering, or if the gathering is reasonably necessary.

More information on the exceptions can be found in the Government Guidance on meeting with others safely. We provide an overview of the law here:

Extended households:

  • The law says that “no person  may  participate  in  a  gathering  which consists of more than six people unless— (a)   all the people in the gathering are from the same household, or are members of two households which are linked households in relation to each other.”
  • These linked households are also referred to as “bubbles”.
  • This exception to the 6-person rule means that it is not against the law to be in a gathering of more than 6 people if those people are part of the same bubble.
  • The rules in England on which households can form a bubble are quite restrictive. The rules have been restated in the new Regulation 5ZA of Regulations No. 2 (added by the amendment on 14 September 2020), and say that a household of one adult or one adult and any number children can form a bubble with another household of any size.

 

Certain types of gatherings:

  • The law says that participating in some types of gatherings of more than 6 people are allowed.
  • You can participate in gatherings organised by charities, businesses and public bodies (such as a local council or a hospital) if you participate on your own or as part of a “qualifying group”:
    • A “qualifying group” is a group of 6 people or less, or a group of people from the same household (meaning a “qualifying group” can be of more than 6 people if all those people are all from the same household).
    • Whilst at a gathering (as an individual or as part of a “qualifying group”), the law says that you cannot join another group, and you cannot “mingle” with anyone else at the gathering other than those who are a part of your “qualifying group”.

  • Support groups of more than 6 people can gather. For example, support groups for:
    • new parents
    • for people facing issues related to their sexuality or identity including those living as lesbian, gay, bisexual or transgender
    • for victims of crime.

  • Gatherings of up to 30 people are allowed for the purposes of the solemnisation of a marriage, formation of a civil partnership or conversion of a civil partnership if:
    • they take place on religious premises or premises approved by law AND
    • the manager has carried out a risk assessment and taken all reasonable measures to limit the risk of transmission of the coronavirus.
  • Gatherings of up to 30 people are allowed if it is “a significant event gathering.” A significant event gathering is one which:
    • Takes place at premises/part of premises operated by a charity, business or public body OR in a public outdoor space – so long as the organiser or manager of the premises has carried out a risk assessment and taken all reasonable measures to limit the risk of transmission of the coronavirus
    • Is for a significant event, such of a ceremony, rite or ritual to:
      • (a) to mark or celebrate a significant milestone in a person’s life, according to their religion or belief, such as events to celebrate a rite of passage or entry into a particular faith (other than a birthday) or coming of age, or
      • (b) to mark a person’s death or celebrate their life following their death, such as a funeral, according to the deceased person’s religion or belief.

  • Gatherings of up to 30 people are allowed for wedding receptions:
    • Which take place in premises other than a private dwelling (i.e. not in someone’s home) and
    • Where the manager has carried out a risk assessment and taken all reasonable measures to limit the risk of transmission of the coronavirus.

  • Protests are allowed
    • If organised by a charity, business, public body or political body
    • And if the organiser has carried out a risk assessment and taken all reasonable measures to limit the risk of transmission of the coronavirus the manager of the premises has carried out a risk assessment and taken all reasonable measures to limit the risk of transmission of the coronavirus.

  • Sports gatherings are allowed. A sport gathering if:
    • organised for the purposes for allowing persons who are not elite sportspersons to take part in any sport or other fitness related activity and
    • organised by a business, charity or public body
    • takes place on relevant premises or outdoors, and
    • the manager of the premises has carried out a risk assessment and taken all reasonable measures to limit the risk of transmission of the coronavirus.

  • Gatherings of more than 6 people are allowed if they take place in criminal justice accommodation.

  • Gatherings which are outdoors and for a “relevant outdoor activity” are allowed. A “relevant outdoor activity means”:
    • a physical activity which is carried on outdoors
    • for which a licence, permit or certificate issued by a public body (other than a licence permitting a person to drive a motor vehicle in the United Kingdom or a licence to serve food or alcohol) to carry on the activity, or for any of the equipment used for the purposes of the activity, must be held by —

           (a) the gathering organiser, or

           (b) any person taking part in the activity.

  • You can participate in a gathering of more than 6 people if you are there to fulfil a legal obligation.
  • You can also be in a group of more than 6 people if you are attending a person giving birth (“M”), at M’s request.

 

Reasonably necessary gatherings:

  • The law says gatherings of more than 6 people are not against the law if the gathering is reasonably necessary. A gathering is reasonably necessary if it is:
    • for work purposes, or for the provision of voluntary or charitable services
    • for the purposes of education or training,
    • for the purposes of childcare provided by a person registered under Part 3 of the Childcare Act 2006, or as part of supervised activities provided for children,
    • to provide emergency assistance,
    • to enable one or more persons in the gathering to avoid injury or illness or to escape a risk of harm
    • to provide care or assistance to a vulnerable person
    • for the purposes of arrangements for access to, and contact between, parents and children where the children do not live in the same household as their parents or one of their parents.

Power to restrict access to public places

Regulation 6 of Regulations No. 2 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. 

 

Powers of Local Authorities under Regulations No. 3

 Since Regulations No. 3 became law on 18 July 2020, Local Authorities can give directions to:

  • close or restrict access to premises in the Local Authority’s area (Regulation 4)
  • prohibit or restrict events in the area (Regulation 5)
  • close or restrict access to outdoor public places in the area (Regulation 6)

The requirements for issuing a direction are:

  • It responds to a serious and imminent threat to public health
  • It is necessary for the purpose of preventing, protecting against, controlling or providing a public health response to coronavirus in the local authority's area
  • It is a proportionate means of achieving that purpose
  • The Local Authority must notify the Secretary of State as soon as possible after the direction is given

The Local Authority issuing the direction must review the restriction at least every 7 days to make sure the conditions above continue to be met.

When giving a direction to close or restrict access to premises, the Local Authority must “have regard to the need to ensure that members of the public have access to essential public services and goods”. The Local Authority giving any direction as explained above must also take steps to give advance notice to people affected by the restrictions – for example, the organiser of an event which is prohibited, or the owner of a business whose premises are being closed.

The Powers for Enforcing the Regulations

Regulations No. 2

Regulation 7 of Regulations No. 2 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).

 

Regulations No. 3

Similar powers for enforcing Regulations No. 3 are found in Regulation 12 of Regulations No. 3. Regulation 12 sets out the powers of an “authorised person” to enforce the Regulations. This is a person designated by the local authority or a constable. 

Enforcement measures can include:

  • Giving a prohibition notice to a person they reasonably believe is breaking a direction under Regulation 4 or 5 – for example, if they are accessing or continuing to run a premise which has been instructed to close under Regulation 4, or holding an event restricted under Regulation 5.

  • Where it is believed that an event is being held against the orders of a Regulation 5 direction, a constable can:
    • direct the event to stop
    • direct a person to leave the event
    • remove a person from the event

Reasonable force may be used if it is necessary and to ensure compliance with a direction. 

  • Where a child is at an event against a Regulation 5 direction or is in a public outdoor place against a Regulation 6 direction and is accompanied by a person with responsibility for the child:
    • a constable can direct that individual to remove the child from the event or place
    • the person with responsibility must ensure that the child complies with any direction or instruction given by the constable to the child.
  • Where it is believed that a person is in a public place which has been closed by a Regulation 6 direction without a reasonable excuse, a constable may:
    • direct that person to leave the place
    • remove that person from the place

Reasonable force may be used if it is necessary and to ensure compliance with a direction.

The reasonable excuses to access or remain in the public outdoor place under a direction are listed in Regulation 7(4):

  • where the person owns, occupies or is responsible for any land or premises in a public outdoor place to which the direction relates
  • where the person needs to enter a public outdoor place closed under a direction to access to, or to leave, the place where they are living
  • where the person is visiting a person who owns or occupies premises on the land, or needs to access the land to access or leave the place they live in
  • where the person needs to enter or remain in the public outdoor place
    • to avoid injury or illness or to escape a risk of harm,
    • to allow for access to, and contact between, parents and children where the children do not live in the same household as their parents, or one of their parents,
  • to fulfil a legal obligation or to participate in legal proceedings, or
  • where it is necessary for a person to enter or remain in a public outdoor place
    • for work purposes, or to provide voluntary or charitable service
    • to facilitate a house move
    • to provide care or assistance to a vulnerable person
    • to provide emergency assistance. 

     

    Criminal Offences and Fixed Penalty Notices

    Regulations No. 2

    Regulation 8 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 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.

    Regulations No. 3

    Regulation 13 or Regulations No. 3 sets out five offences which can be committed under these Regulations:

    • Acting against a restriction under a Regulation 4 direction
    • Acting against a restriction under a Regulation 5 direction, for example
    • Acting against a restriction under a Regulation 6 direction, for example by remaining in a public outdoor place closed by a direction of the Local Authority without a reasonable excuse
    • Obstructing someone who is carrying out functions under these Regulations
    • Acting against action taken by an authorised person under Regulation 12, or failing to comply with a reasonable instruction or a prohibition notice given by an authorised person under Regulation 12

    Similar to Regulations No. 2, these offences are punishable by a fine, or a fixed penalty notice (FPN). For more information on what FPNs are, please see the above section on Criminal Offences and FPNs under Regulations No. 3.

    Under Regulations No. 3, a fixed penalty can be £50 to £100 for a first FPN (£50) if paid within 14 days). The amount of the penalty increases for each additional FPN issued to the same person under Regulations No. 3. The maximum penalty is £3,200 for the sixth or more FPNs given to the same person. 


    What does this mean for people?

    The changes to the Regulations made on the 14 September 2020 significantly tighten the legal restrictions on gatherings of people. This means:

    • No more gatherings of more than 6 people are permitted, unless for the reasons explained earlier in this Explainer.
    • No more overnight stays outside of your home unless at the home of the other household in your bubble.

    The new powers of Local Authorities made on 18 July by Regulations No. 3 increase the lockdown and police powers of Local Authorities to help them respond to local outbreaks of Covid-19. It means people living in different areas may have different restrictions in place to each other, so that might get confusing. It is important to stay up to date with announcements from your Local Authority.

    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 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 11 May 2020 the Government published Our plan to rebuild: The UK Government’s COVID-19 recovery strategy, most recently updated on the 24 July. It states that the UK Government’s phase 1 response has been to “contain, delay and mitigate”, that phase 2 is focusing on smarter controls, and phase 3 will focus on reliable treatment. Phase 2 sets out 3 steps: Step 1 - 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 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. For more information on our evidence and for a summary of our key findings, please follow this link. For information on the JCHR Inquiry visit the JCHR Inquiry website.

    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

    5. 6 July 2020

    6. 28 July 2020

    7. 27 August 2020

    8. 14 September 2020