Lockdown becomes Law

Author: Kevin Holder
In: News Published: Thursday 26 March 2020

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Introduction

At 1pm on 26th March 2020, Secretary of State for Health, Matt Hancock, signed the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 bringing the lock down restrictions announced by the Prime Minister on Monday into law with immediate effect.

Since announcing social distancing "rules" on Monday, the Government has been ambiguous as to their legal basis. News reports and Government statements described them as legally binding, but conceded that enforcement powers were not in place. 

It was widely assumed that the Government would enact secondary legislation under s45 of the Public Health (Control of Disease) Act 1984 in the immediate aftermath of the Prime Minister's address to the nation, however whilst multiple statutory instruments have been made over the last three days, the anticipated social distancing statutory instrument failed to materialise.  

Many commentators attributed this to a desire on the part of the Government to make use of powers under the Coronavirus Act 2020 (which gained Royal Assent yesterday), however although the Health Secretary appears to have waited until after enactment of the Coronavirus Bill, the regulations made today were in exercise of existing powers conferred by sections 45C(1), (3)(c), (4)(d), 45F(2) and 45P of the Public Health (Control of Disease) Act 1984.

 

Purpose

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 are stated to be:

"made in response to the serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARSCoV-2) in England.

 

Duration

  • Pursuant to Regulation 1, the regulations enter into force in England at 1pm on 26th March 2020 and terminate in six months pursuant to Regulation 11.
  • Regulation 3(2) provides that the Secretary of State must review the need for restrictions and requirements imposed by the Regulations at least once every 21 days, with the first review being carried out by 16th April 2020.
  • As soon as the Secretary of State considers that any restrictions or requirements set out in the Regulations are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England with the coronavirus, he is obliged to publish a direction terminating that restriction or requirement. 

 

Closure of Premises and Businesses 

Regulations 2 revokes the The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 which entered into force a couple of days ago. 

The requirement to close premises and businesses is now found in Regulation 4 and 5 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.

  • Regulation 4 addresses establishments that sell food and drink and Regulation 5 addresses non exempted shops and libraries. 
  • Regulation 5(3) requires proprietors of holiday accommodation businesses, whether in a hotel, hostel, bed and breakfast accommodation, holiday apartment, home, cottage or bungalow, campsite, caravan park or boarding house, to cease to carry on that business during the emergency period, unless they fall within an exemption under Regulation 5(4). This Regulation is likely to have a substantial impact upon those who have sought to socially isolate in caravan parks and other accommodation in rural parts of the country.
  • Regulation 5(5) requires places of worship to close save for the uses permitted under Regulation 5(6).
  • Regulation 5(6) requires community centres to close save where they are used for certain permitted purposes. 

 

Restrictions on movement of Citizens 

Regulation 6 of the The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 is likely to command the greatest attention, as this is the Regulation which effectively gives legal force to the social distancing rules announced by the Prime Minister on Monday. The restrictions are comprehensive and provide at Regulation 6(1) that:

"During the emergency period, no person may leave the place where they are living without reasonable excuse."

 

Regulation 6(4) disapplies the regulation to any person who is homeless.

Regulation 6(2) proceeds to set out certain circumstances that are deemed to qualify as a "reasonable excuse."

Regulation 6(2) states that "reasonable excuse includes" the circumstances set out in that sub-paragraph. They are accordingly non-exhaustive, however citizens should exercise caution when considering undertaking activities outside those specifically sanctioned, as they may have to justify them as constituting a "reasonable excuse" to Police and the Courts. It should be borne in mind that given that circumstances listed in Regulation 6(2) are comprehensive (and in some respects generous), the Police and Judiciary are likely to be conservative in determining what constitutes "reasonable excuse."  

The "reasonable excuses" for leaving home, set out at Regulation 6(2) are:

  • (a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2;

 

 

  • (b) to take exercise either alone or with other members of their household;

 

 

  • (c) to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of Schedule 2;

 

 

  • (d) to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006(a), to a vulnerable person, or to provide emergency assistance;
  • (e) to donate blood;

 

 

  • (f) to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;

 

 

  • (g) to attend a funeral of: (i) a member of the person’s household, (ii) a close family member, or (iii) if no-one within sub-paragraphs (i) or (ii) are attending, a friend;

 

  • (h) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;

 

  • (i) to access critical public services, including: (i) childcare or educational facilities (where these are still available to a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child); (ii) social services; (iii) services provided by the Department of Work and Pensions; (iv) services provided to victims (such as victims of crime);

 

  • (j) in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “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;

 

  • (k) in the case of a minister of religion or worship leader, to go to their place of worship;

 

  • (l) to move house where reasonably necessary;

 

  • (m) to avoid injury or illness or to escape a risk of harm.


(3) For the purposes of paragraph (1), the place where a person is living includes the premises where they live together with any garden, yard, passage, stair, garage, outhouse or other appurtenance of such premises.

 

 

Vulnerable Persons

Vulnerable Persons are defined as:

  • "any person aged 70 or older'"
  • "any person under 70 who has an underlying health condition (including but not limited to those listed in Schedule 1 such as chronic respiratory diseases, chronic heart, kidney, liver, or neurological conditions, diabetes, a weakened immune system or being seriously overweight with a BMI of 40 or above) ," and;
  • "any person who is pregnant"

 

Restrictions on Gatherings 

No person may participate in a gathering in a public place of more than two people except - 

  • (a) where all the persons in the gathering are members of the same household,
  • (b) where the gathering is essential for work purposes,
  • (c) to attend a funeral,
  • (d) where reasonably necessary— (i) to facilitate a house move, (ii) to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, (iii) to provide emergency assistance, or (iv) to participate in legal proceedings or fulfil a legal obligation.

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 the author, any member of Chambers, or by Chambers as a whole.