Introduction

Further to Prime Minister Boris Johnson's televised statement to the nation on Halloween and his statement to Parliament on 2nd November, The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 were laid before Parliament on 3rd November (pursuant to s.45C(1) of the Public Health (Control of Disease) Act 1984). 

On 4th November, MPs voted by 516 to 39 to approve the regulations.

When does it come into effect?

The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 came into force on 5th November 2020 (Pursuant to Regulation 1(1)).

Pursuant to Regulation 23(1) 'these Regulations expire at the end of the period of 28 days beginning with the day on which they come into force.' This is notably shorter than the six month automatic expiry under Regulation 11 of the original Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 introduced in March ("The March Regulations"). 

What restrictions does it impose?

Requirement to stay at Home

Regulation 5(1) provides:

No person may leave or be outside of the place they are living without reasonable excuse"

Ostensibly, this is very similar to the curfew requirement imposed by Regulation 6(1) of the March Regulations.

no person may leave the place where they are living without reasonable excuse"

There does, however, appear to be a significant distinction. The March regulations only imposed the requirement that without reasonable excuse "no person may leave the place where they are living."  The current regulations also forbid that a person "be outside of the place they are living" without reasonable excuse.   

The reason for the change may be that there was a concern that a person who had a reasonable excuse to leave their home might argue under former Regulation 6(1) that they would not commit an offence if they continued to remain outside of their home after they had completed the activities covered by said reasonable excuse. An example might be a person who left their home to shop for essential supplies in the morning but, after completing their shopping, did not return straight home, but remained outside of their home throughout the day. 

Under the old wording, if "leaving home" was construed as the discrete instance of exiting one's home, as opposed to the continuous act of being away from home then they might not have contravened Regulation 6(1) of the March Regulations.

By requiring that a person have a reasonable excuse to be "outside of the place they are living" it appears clear that there is not only a prohibition on leaving home without a reasonable excuse but remaining away from home without a reasonable excuse. In other words there is an obligation to return home without undue delay once the permitted purpose has been completed.

Reasonable Excuse to Leave Home / Remain Outside

As with the March Regulations, the current regulations do not exhaustively define what constitutes a "reasonable excuse", but as Regulation 5(2)(a) provides 'the circumstances in which a person has a reasonable excuse include where one of the exceptions set out in regulation 6 applies.'

The reasonable excuse "exceptions" are:

EXCEPTION  1 - Leaving home for certain purposes

That is is reasonably necessary for the person concerned ("P") to leave or be outside the place where P is living - 

• (a) to buy goods or obtain services from any business or service listed in Part 3 of the Schedule,

 for—

 

(i) P or for those in the same household; 

(ii) vulnerable persons, 

or 

(iii) persons in the same household as a vulnerable person;

The Schedule is entitled 'Businesses subject to restrictions or closure, or permitted to remain open', with Part 3 of the Schedule entitled 'Businesses permitted to remain open'. The extensive number of businesses and services listed in Part 3, from paragraphs 33 and 52, include[1]: 

Food retailers; off licences; pharmacies; newsagents; hardware stores; building merchants; petrol stations; car repair/MOT stations; bicycle shops; taxi and vehicle hire services; banks and building societies; post offices; laundrettes; dental services, opticians, audiology services and other health service providers; veterinary surgeons and pet shops; agricultural supplies; storage and distribution facilities; car parks; public toilets; and garden centres.

• (b) to obtain money from or deposit money with any business listed in paragraph 43 or 44 of the Schedule

The businesses listed in paragraphs 43 and 44 of the Schedule are banks; building societies; credit unions; short term loan providers; savings clubs; cash points; undertakings which by way of business operate currency exchange offices, transmit money (or any representation of money) by any means or cash cheques which are made payable to customers; and Post offices.

• (c) to take exercise outside—

(i) alone, 

(ii) with— 

(aa) one or more members of their household, their linked household,

or 

(bb) where exercise is being taken as part of providing informal childcare for a child aged 13 or under, one or more members of their linked childcare household, or 

(iii) in a public outdoor place, with one other person who is not a member of their household, their linked household or their linked childcare household,

and paragraph (3) applies in determining whether a person is complying with the limits in this sub-paragraph;

• (d) to visit a public outdoor place for the purposes of open air recreation—

(i) alone, 

(ii) with— 

(aa) one or more members of their household, their linked household, or 

(bb) where exercise is being taken as part of providing informal childcare for a child aged 13 or under, one or more members of their linked childcare household, or 

(iii) with one other person who is not a member of their household or their linked household,

and paragraph (3) applies in determining whether a person is complying with the limits in this sub-paragraph;

• (e) to attend a place of worship;

• (f) to attend an event commemorating Remembrance Sunday or to attend the gathering referred in regulation 11(18)(a)(ii);

• (g) to undertake any of the following activities in connection with the purchase, sale, letting or rental of a residential property

(i) visiting estate or letting agents, developer sales offices or show homes; 

(ii) viewing residential properties to look for a property to buy or to rent; 

(iii) preparing a residential property to move in; 

(iv) moving house; 

(v) visiting a residential property to undertake any activities required for the rental or sale of that property;

• (h) to visit a member of a household which is a linked household in relation to P’s household;

• (i) to collect food, drink or other goods which have been ordered from a business, or to access goods or services which are provided, in any way permitted by regulation 17 or 18;

• (j) to visit a waste disposal or recycling centre.

EXCEPTION  2 - Work, voluntary services, education and training 

That is is reasonably necessary for  P to leave or be outside P's home -

• (a) for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for P to work, or to provide those services, from home;
• (b) for the purposes of education or training;
• (c) to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006(1), to a vulnerable person;
• (d) to provide emergency assistance to any person;
• (e) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;
• (f) to access critical public services, including—(i) social services;(ii) services provided by the Department for Work and Pensions; (iii) services provided to victims (including victims of crime); (iv) asylum and immigration services and interviews;
• (g) to access services provided by voluntary or charitable services, including food banks.

EXCEPTION 3 - Elite Sportsperson etc.

Exception 3 is that P is an elite sportsperson, a coach of an elite sportsperson, or (in the case of an elite sportsperson who is under the age of 18), a parent of the elite sportsperson, and it is reasonably necessary for P to leave or be outside P’s home for the purposes of training or competition.

EXCEPTION 4 - Medical Need

That it is reasonably necessary for P to leave or be outside P’s home—

 

• (a) to seek medical assistance, including to take any medical tests, be vaccinated or access any of the services referred to in paragraph 47 of the Schedule;
• (b) to donate blood or attend medical trials;
• (c) to avoid injury or illness or to escape a risk of harm;
• (d) to attend a person giving birth (“M”) at M’s request;
• (e) to visit a person (“V”) receiving treatment in a hospital or staying in a hospice or care home, or to accompany V to a medical appointment and P is— (i) a member of V’s household, (ii) a close family member of V, or (iii) a friend of V.

EXCEPTION 5 - Support and respite

Exception 5 is that it is reasonably necessary for P to leave or be outside P’s home—

 

• (a) to attend a meeting of a support group which is permitted to meet under regulation 11(6);
• (b) for the following purposes—

(i) respite care being provided for a vulnerable person or a person with a disability, or

(ii)a short break being provided in respect of a looked after child (within the meaning of section 22 of the Children Act 1989(2)).

EXCEPTION 6 - Death bed visit

 That it is reasonably necessary for P to leave or be outside P’s home to visit a person (“D”) whom P reasonably believes is dying, and P is—

(a) a member of D’s household, 

(b) a close family member of D, or 

(c) a friend of D.

EXCEPTION 7 - Funerals

That it is reasonably necessary for P to leave or be outside P’s home— 

(a) to attend a funeral, 

(b) to attend a commemorative event celebrating the life of a person who has died, or 

(c) to visit a burial ground or garden of remembrance, to pay respects to a member of P’s household, a family member or friend.

EXCEPTION 8 - Marriages and Civil Partnerships

That it is reasonably necessary for P to leave or be outside P’s home to attend a marriage ceremony, a civil partnership ceremony or an alternative wedding ceremony permitted under regulation 11(11)

EXCEPTION 9 - Children

That it is reasonably necessary for P to leave or be outside P’s home—

• (a) for the purposes of arrangements for access to, and contact between, parents and a child where the child does not live in the same household as their parents or one of their parents;
• (b) for the purposes of arrangements for contact between siblings where they do not live in the same household and one or more of them is—

(i)a child looked after by a local authority, within the meaning of section 22 of the Children Act 1989, or

(ii)a relevant child, within the meaning of section 23A(3) of that Act;

 

 

• (c) for the purposes of arrangements for prospective adopters (including their household) to meet a child or children who may be placed with the prospective adopters as provided for by an adoption placement plan drawn up in accordance with the Adoption Agencies Regulations 2005(4) (see regulation 35(2) of those Regulations);
• (d) to access educational facilities, or to accompany a child to those facilities where P is the parent or has parental responsibility for, or care of, the child in question;
• (e) subject to paragraph (13), for the purposes of—

(i)childcare provided by a person registered under Part 3 of the Childcare Act 2006(5);

(ii)supervised activities for children;

 

 

• (f) for the purposes of informal childcare, for children aged 13 or under, provided by a member of a household to a member of their linked childcare household (see regulation 13).
• The childcare exception only applies where the childcare is reasonably necessary to enable a parent, or a person who has parental responsibility for, or care of, the child in question, to work, search for work or to undertake training or education.

EXCEPTION 10 - Animal Welfare 

That it is reasonably necessary for P to leave or be outside P’s home—

 

• (a) to attend veterinary services to seek advice about the health and welfare of a pet or other animal owned or cared for by P, or for the treatment of such a pet or animal;
• (b) to attend to the care of or exercise of a pet or other animal owned or cared for by P.

EXCEPTION 11 - Returning Home

That it is reasonably necessary for P to be outside P’s home to enable P to return home from any place where P was on holiday immediately before these Regulations came into force.

EXCEPTION 12 - Prison Visits

That it is reasonably necessary for P to leave or be outside P’s home to visit a person (“VP”) living in criminal justice accommodation, where P is—

(a) a close family member of VP, or 

(b) a friend of VP.

EXCEPTION 13 - Other Visits

That it is reasonably necessary for P to leave or be outside P’s home for the purposes of a visit permitted under regulation 11(10).

Restrictions on Gatherings

• Gatherings are restricted by Part 3 of the Regulations. Paragraphs 7 to 14 of the current regulations, set out the detailed restrictions. 

Closure of and restrictions on businesses

• Certain businesses are closed or face restrictions pursuant to Part 4 of the Regulations. Paragraphs 15 to 18 of the current regulations, set out the detailed restrictions.

What powers does it grant?

• Part 5 of the Regulations grants extensive enforcement powers. Paragraphs 19 to 2 of the current regulations, set out the detailed enforcement powers.

Where does it apply?

Pursuant to Regulation 1(4), the regulations 'apply in relation to England only, including English airspace and English territorial sea.'

KEVIN HOLDER © 2020

BARRISTER

33 BEDFORD ROW

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.