New Three Tier Coronavirus Restrictions imposed under the 1984 Act

Three Tier Lockdown Restrictions - Introduction

Further to Prime Minister Boris Johnson's statement in Parliament[1] and address to the nation on 12th October 2020, the Secretary of State for Health has introduced three statutory instruments before Parliament which are due to come into force on 14th October 2020. 

In his address, Boris Johnson announced that a three tier lockdown system would be introduced across the country whereby every area in England would be classified as being on medium, high, or very high alert. These areas would known as Tier 1, Tier 2, and Tier 3 respectively.

Areas with the lowest rates of infection would fall into Tier 1 (medium risk). These areas would not face additional restrictions beyond those already imposed across England, for example the requirement that pubs, bars, and restaurants close at 10pm.

Areas with higher rates of infection would fall into Tier 2 (high risk). In addition to existing national measures, there would be the additional restrictions imposed in these areas of prohibiting mixing between different households in private homes.

Areas with the highest increases in viral transmission would fall into Tier 3 (very high risk). In addition to the restrictions imposed upon Tier 1 and Tier 2 areas, the additional restrictions are said to be that pubs and bars will be closed save where they serve substantial meals, and gyms, leisure centres, betting shops and casinos will also close. There has also been an indication that further measures may be introduced in consultation with local authorities. 

The foregoing is derived from public statements and media articles[2], however, as with all coronavirus restrictions, it is important to have regard to the regulations that give legal force to those measures. As held in FSA v Arch and Others [2020] EWHC, government "guidance, exhortation, and advice...including by the Prime Minister... do not count as restrictions imposed." Whilst they may have considerable moral force, they do not in themselves have legal force.

The Regulations

Accordingly, pursuant to s45C(1) of the Public Health (Control of Disease) Act 1984, the government has laid before Parliament a statutory instrument for each of the three tiers of restriction:

TIER 1 - The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020 [SI 2020/1103]

When does it come into effect?

The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020 [SI 2020/1103], accessible at https://www.legislation.gov.uk/uksi/2020/1103/pdfs/uksi_20201103_en.pdf having been made by the Health Secretary at 5pm on 12th October 2020 and laid before Parliament at 6pm on the 12th October 2020 is set to be enacted on the 13th October. 

In accordance with Regulation 1(2), it is set to come into force on 14th October 2020. 

Pursuant to Regulation 8(1), the Secretary of State must review the need for each of the Tier 1 restrictions at least once every 28 days, with the first review on the 11th November 2020. He must consider whether each of the Tier 1 restrictions continues to be necessary for the purposes of preventing, protecting against, controlling or providing a public health response to the incidence or spread of coronavirus. 

The regulations are due to expire after six months.

What restrictions does it impose?

In accordance with Regulation 3(2)(a) it imposes the "Tier 1 restrictions" set out in Schedule 1, namely:

What powers does it grant?

The enforcement powers are set out at Regulation 4. These empower a "relevant person" defined by Regulation 4(9)(b) as a constable, PCSO, local authority appointee, or Secretary of State appointee, to inter alia give a prohibition notice (Regulation 4(2)), direct a gathering to disperse, direct a person to return to the place where they are living, remove any person from a gathering (Regulation4(3)), and use reasonable force in exercise of said power (Regulation 4(4). Regulation 4(5) also allows the relevant person to direct that an individual having responsibility for a child take the child to the place where they are living and that the individual ensure compliance by the child (Regulation 4(6). 

Offences and penalties are set out in Regulation 5, with the power to imposed Fixed Penalty Notice being set out at Regulation 6.

Where does it apply?

In accordance with Regulation 3(2)(b) it applies to:

every area of England (including the territorial waters adjacent to England and the airspace above England and those territorial waters) other than the excluded area."

The excluded area is as specified in Schedule 2, namely a Tier 2 area specified in SI 2020/1104 or a Tier 3 area specified in SI 2020/1105.

Essentially it applies throughout England, save where more onerous restrictions are imposed by one of the other two regulations. 

TIER 2 - The Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) Regulations 2020 [SI 2020/1104]

When does it come into effect?

The Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) Regulations 2020 [SI 2020/1104], accessible at https://www.legislation.gov.uk/uksi/2020/1104/pdfs/uksi_20201104_en.pdf having been made by the Health Secretary at 5pm on 12th October 2020 and laid before Parliament at 6pm on the 12th October 2020 is set to be enacted on the 13th October. 

In accordance with Regulation 1(2), it is set to come into force on 14th October 2020. 

Pursuant to Regulation 8(3), the Secretary of State must review the need for each of the Tier 2 restrictions at least once every 28 days, with the first review on the 11th November 2020. He must consider whether each of the Tier 2 restrictions continues to be necessary for the purposes of preventing, protecting against, controlling or providing a public health response to the incidence or spread of coronavirus. 

In addition, pursuant to Regulation 8(1) the Secretary of State must review whether each area that is Part of the Tier 2 area should continue to be so at least once every 14 days, with the first review on 28th October 2020.

The regulations are due to expire after six months.

What restrictions does it impose?

In accordance with Regulation 3(2)(a), it imposes the "Tier 2 restrictions" set out in Schedule 1 in "Tier 2" areas specified in Schedule 2, namely:

What powers does it grant?

The enforcement powers are set out at Regulation 4. These empower a "relevant person" defined by Regulation 4(9)(b) as a constable, PCSO, local authority appointee, or Secretary of State appointee, to inter alia give a prohibition notice (Regulation 4(2)), direct a gathering to disperse, direct a person to return to the place where they are living, remove any person from a gathering (Regulation4(3)), and use reasonable force in exercise of said power (Regulation 4(4). Regulation 4(5) also allows the relevant person to direct that an individual having responsibility for a child take the child to the place where they are living and that the individual ensure compliance by the child (Regulation 4(6). 

Offences and penalties are set out in Regulation 5, with the power to imposed Fixed Penalty Notice being set out at Regulation 6.

Where does it apply?

In accordance with Regulation 3(2)(b) it applies to:

the area for the time being specified or described in Schedule 2"

The areas specified in Schedule 2 as of 12th October 2020 are:

TIER 3 - The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020 [SI 2020/1103]

When does it come into effect?

The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020 [SI 2020/1105], accessible at https://www.legislation.gov.uk/uksi/2020/1105/pdfs/uksi_20201105_en.pdfhaving been made by the Health Secretary at 5pm on 12th October 2020 and laid before Parliament at 6pm on the 12th October 2020 is set to be enacted on the 13th October. 

In accordance with Regulation 1(2), it is set to come into force on 14th October 2020. 

Pursuant to Regulation 8(1), the Secretary of State must review the need for each of the Tier 3 restrictions at least once every 28 days, with the first review on the 11th November 2020. He must consider whether each of the Tier 3 restrictions continues to be necessary for the purposes of preventing, protecting against, controlling or providing a public health response to the incidence or spread of coronavirus. 

In addition, pursuant to Regulation 9(1) the the inclusion of an area within Schedule 2 so as to render it a Tier 3 area automatically expires after 28 days.

The regulations are due to expire after six months.

What restrictions does it impose?

In accordance with Regulation 3(2)(a), it imposes the "Tier 3 restrictions" set out in Schedule 1 in "Tier 3" areas specified in Schedule 2, namely:

A requirement pursuant to Schedule 1, Part 3, Paragraph 17 that food and drink at premises specified in Paragraph 15 be consumed whilst seated. Where alcohol is served at the premises, the alchohol and any food must be ordered by and served to customers whilst seated.

What powers does it grant?

The enforcement powers are set out at Regulation 4. These empower a "relevant person" defined by Regulation 4(9)(b) as a constable, PCSO, local authority appointee, or Secretary of State appointee, to take such action as is necessary to enforce any Tier 3 restriction (Regulation 4(1), to give a prohibition notice (Regulation 4(2)), direct a gathering to disperse, direct a person to return to the place where they are living, remove any person from a gathering (Regulation4(3)), and use reasonable force in exercise of said power (Regulation 4(4). Regulation 4(5) also allows the relevant person to direct that an individual having responsibility for a child take the child to the place where they are living and that the individual ensure compliance by the child (Regulation 4(6). 

Offences and penalties are set out in Regulation 5, with the power to imposed Fixed Penalty Notice being set out at Regulation 6. 

Where does it apply?

In accordance with Regulation 3(2)(b) it applies to:

the area for the time being specified or described in Schedule 2"

The areas specified in Schedule 2 as of 12th October 2020 are:

 

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.

[1] https://hansard.parliament.uk/commons/2020-10-12/debates/E8CF3BF7-E203-4771-9D44-D8C58F8E9FA9/Covid-19Update

[2]https://www.bbc.co.uk/news/explainers-52530518