Coronavirus - Business Continuity

Briefing on the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020

Friday 27 March 2020

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The Health Secretary yesterday made and brought The Health Protection (Coronavirus, Restrictions)(England) Regulations 2020 into force declaring that in accordance with s45R of Public health (Control of Disease) Act 1984 it was necessary to make this order without a draft being laid before parliament and approved (despite having issued guidance on 23 March 2020 in very similar terms).  Although technically approval is still required within 28 days as Parliament is now in recess this will not happen prior to the first review which is due by 16 April 2020.  This effectively means there will be no parliamentary scrutiny of Regulations which on their face impose extraordinary and draconian restrictions on freedom of movement backed by increased powers of arrest and prosecution.  If this is a sign of things to come it does not bode well. The only saving grace is that the Regulations expire after 6 months.

In summary, the Regulations make it illegal for:

  • a wide range of shops and businesses to remain open (Regs 4, 5)
  • a person to leave their house without a reasonable excuse (unless homeless) (Reg 6)
  • a person to take part in public gatherings of more than 2 people subject to exceptions. (Reg 7)

A failure to comply with the regulations can be enforced by a ‘relevant person’ which may include a constable, a police community support officer, a person designated by the Secretary of State for the purposes of the regulation or, in respect of closing businesses, a person designated by the local council.

The new offences of contravening the regulations, obstructing a person carrying out functions under the regulation and contravening directions given by such a person are punishable on summary conviction by a fine (level not specified).  Provision is also made for a fixed penalty notice of £60.

The Regulations appear to lack clarity, conflict with Government guidance (itself internally conflicting and unclear) and statements made by the Prime Minster and at the same time a swingeing attack on freedom of movement and civil liberties. They are backed by extensive enforcement powers including the right to use reasonable force and to ‘remove’ the person to the place where they are living.  These powers are given to police, police community support officers and ‘a person designated by the Secretary of State for the purposes of this Regulation’. 

The result?  The restrictions are unclear.  The excuses are unclear.  It is clear from a brief scan of social media that people are confused about what it all means and are seeking ways to interpret the guidance to enable them to continue their employment, particularly if self-employed.  This is in direct contradiction to the statements by ministers and others not to leave the house unless your work itself is essential.

Real concerns therefore arise over the degree of powers given to the enforcers with insufficient guidance in respect of Regulations which legally don’t achieve their ends. The lack of clarity in the scheme as a whole is troubling given the wide powers of enforcement which leaves the scheme open to abuse and may well lead to a disproportionate and discriminatory impact on marginalised and disadvantaged communities.

What are the provisions and what do they do

Vulnerable persons
Vulnerable persons for the purposes of the regulation are defined as including:

  • any person over 70
  • any person under 70 with an underlying health condition including but not limited to those listed in schedule 1 (chronic long term respiratory diseases, chronic heart disease, chronic kidney disease, chronic liver disease; chronic neurological conditions such as Parkinsons, motor neurone, multiple sclerosis, learning disability or cerebral palsy, diabetes, problems with the spleen, weakened immune system due to HIV, ADIS or medicines such as steroid tablets or chemotherapy, being seriously overweight with a BMI of 40 or above)
  • any person who is pregnant.

This list is non-exhaustive and it should mean that care for your friends or relatives with a serious, chronic debilitating health or mental health condition that prevents or inhibits them providing for their own needs would qualify the person as vulnerable.  What appears to be missing from the list is a person who is at that point in time self-isolating or suffering from coronavirus itself.

The emergency period
The emergency period started on 26 March 2020 at 1pm and ends on the day the Secretary of State for Health terminates the requirement of any restriction.  The Secretary of State must review the Regulations at least once every 21 days with the first review being carried out by 16 April 2020.  As soon as a requirement is no longer necessary it must be terminated by a declaration.  There is a requirement to publish declarations.

Closing business and other restrictions on businesses (Regs 4 and 5)
The previous Health Protection (Coronavirus, Business Closure) (England) Regulations are revoked leaving business closures in place.

Provision is made for closure of a wide range of businesses and premises. 

  • Restaurants and bars including those in private clubs, pubs, cafes and canteens (subject to certain public service and work place exceptions such as hospitals, care homes, prisons, military facilities, homeless services and schools) must close any part in which food or drink are sold for consumption on the premises.  Provision is made for such businesses to become takeaway food and drink providers and for workplace canteens to remain open where there is no practical alternative for staff to obtain food.  ‘Practical alternative’ is not defined.
  • Cinemas, theatres, bingo halls, concert halls museums and galleries may broadcast a performance to people outside the premises, whether over the internet or as part of a radio or television broadcast.
  • Any suitable premises may be opened to host blood donation sessions.

All other business offering goods for sale or hire in a shop or the provision of library services must cease, save for making deliveries in response to orders received online, by telephone or post.

Holiday accommodation business must close save for circumstances where:

  • a person cannot return to their main residence
  • a person uses the holiday accommodation as their main residence
  • needs accommodation whilst moving house
  • needs accommodation to attend a funeral
  • to provide accommodation or support services for the homeless
  • to host blood donation sessions
  • for any purpose requested by the Secretary of State or a local authority.

There would therefore appear to be a clear aim in the not too distant future to re-purpose some existing hotel and other holiday accommodation perhaps as homeless shelters or isolation units.  For example, Arrowe Park Hospital, Kents Hill Park and Heathrow Ariel Hotel were designated as an ‘isolation facility’ under the previous regulations and the Government is, this morning, asking Local Authorities to house rough sleepers by the weekend.

Places of Worship, Crematoriums and Burial Grounds (Reg 5)
Places of worship must close save for permitted uses of:

  • funerals
  • to broadcast an act of worship
  • to provide essential voluntary services or urgent public support services including food banks or other support for homeless or vulnerable, blood donation or emergencies.

Research is ongoing as to whether the severity of the outbreak in the West Midlands has been exacerbated by older people attending places of worship.  There is potential for this to give rise to discrimination and hate crimes against religious communities. 

It is also of note that during April religious practice across many denominations will be affected including Easter, Passover seders, Hindu Rama Navami, Sikh Vaisakhi festivities and Ramadan.

Crematoriums and burial grounds must be closed to members of the public except for funerals or burials.

Note also however that the rules on restrictions of movement prohibit a person leaving the house unless it is to attend the funeral of a member of the household, close family member or only if no one from these groups is attending, a friend.  It is unclear how this will be enforced.

Community Centres (Reg 5)
These must close except where used:

  • to provide essential voluntary activities or urgent public support including the provision of food banks or other support for the homeless or vulnerable people, blood donation sessions or support in an emergency

Not to leave the place where you live without reasonable excuse (Reg 6)
The place where a person is living includes the premises where you live together with any garden, yard, passage, stair, garage, outhouse or other appurtenance of such premises (an accessory or other item associated with a particular activity or style of living- eg. Lean to, conservatory, stable etc)

‘Reasonable excuse’ is defined non-exhaustively.

  1. To obtain basic necessities (food, medical supplies and items for essential upkeep, maintenance and functioning of the household and/or money) for yourself, others in the same household (including pets) or for vulnerable persons
  2. To take exercise either alone or with other members of your household
  3. To seek medical assistance including accessing dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health.  Also permitted to go to the vet and pet shops
  4. Provide care and assistance to vulnerable person and/or emergency assistance
  5. To donate blood
  6. 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.
  7. To attend a funeral
  8. To fulfil a legal obligation including attending court, satisfying bail conditions or participate in legal proceedings
  9. To access critical public services including childcare or educational facilities (where still available to the relevant child), social services, DWP, victims of crime services
  10. To enable contact between children and separated parents to continue
  11. For a minister of religion or worship leader to go to their place of worship
  12. To move house where necessary
  13. To avoid injury or escape risk of harm

The prohibition on leaving the house does not apply to the homeless unless they are temporarily accommodated.

It is important to note that victims of domestic and other forms of abuse will have a ‘reasonable excuse’. This would be covered by ‘escape a risk of harm’.

This Regulation is wider that than the provisions announced by the Prime Minister in his statement to the nation on 24 March 2020.  That speech was clear that people need to stay at home for public health reasons.

  • Exercise: Unlike the guidance and the statement by the Prime Minister on 24 March 2020 which states explicitly one form of exercise a day e.g. a walk, run or cycle (which would in all likelihood have been unenforceable)  there is no limitation on the time, period, number of times or distance from home that an individual is allowed to exercise.
  • Travel for work, voluntary or charitable services: The Regulation permits people to leave their house to ‘travel for the purposes of work or to provide charitable or voluntary services’.  Neither the work nor the travel to the work have to be essential it just has to be not ‘reasonably possible’ to do the work or provide the services from home

This is a much broader exception than that announced by the PM on 24 March 2020 in which he stated: ‘Travelling to and from work but only where this is absolutely necessary and cannot be done from home’.

Moreover, the Guidance produced by the government prior to the Regulations which provided for people to carry on working requires that:

  1. the person working has no coronavirus symptoms;
  2. the work cannot be done from home;
  3. it is not work for one of those organisations required to close;
  4. the business does not take place in one of the venues required to close;
  5. the work is not carried out in a household which is isolating or being shielded unless to remedy a direct risk to the safety of the household e.g. plumbing or repairs.

This confusing and conflicting advice is particularly affecting both self-employed people who wish to carry on working and workers who do not wish to travel but are under pressure from their employers.  It will be open to interpretation both by individuals seeking to leave their house with reasonable excuse and those individuals responsible for enforcing the Regulation.

Restrictions on gatherings (Reg 7)
No gathering of more than two people in a public place except where:

  • members of the same household;
  • where the gathering is for essential work purposes;
  • to attend a funeral;
  • where reasonably necessary to;
    • facilitate a house move;
    • provide care or assistance to a vulnerable person;
    • provide emergency assistance;
    • participate in legal proceedings or fulfil a legal obligation.

Enforcement powers
The reason that the lack of clarity in the scheme as a whole is troubling is the wide powers of enforcement which leaves the scheme open to abuse and may well lead to a disproportionate and discriminatory impact on marginalised and disadvantaged communities.

Relevant person
A relevant person for the purpose of enforcement powers is defined as:

  • a constable;
  • a police community support officer;
  • a person designated by the Secretary of State for the purposes of this regulation;
  • in respect of closing/regulating businesses only: a person designated by a local authority for the purposes of the regulation.

Powers of the relevant person
A very wide power of ‘such action as is necessary to enforce any requirement imposed by regulations 4,5 or 7’ is provided (business, premises and gatherings).  If it is believed that regulations 4 or 5 are being contravened a ‘prohibition notice’ can be given if deemed necessary and proportionate for the purpose of preventing the person from continuing to contravene the requirement.

Powers in respect of individuals breaching the restrictions on movement include:

  • direction to return to place where they are living (home);
  • removal to their home;
  • use of reasonable force to remove to their home;
  • directing those responsible for a child breaching the restrictions to take them home or ensure as far as is reasonably practicable that the child complies.

These powers must only be exercised where the relevant person considers it is a necessary and proportionate means of ensuring compliance with the requirement.

Powers to break up gatherings of three or more people in contravention of regulation 7 include:

  • direct to disperse;
  • direct any person in the gathering to return home;
  • removal to their home.

The relevant person may give any reasonable instructions they consider necessary and s24 PACE applies in relation to any arrest with the section being treated as if the reasons for arrest include ‘to maintain public health’ and ‘to maintain public order’.

Prosecutions
New offences are created of:

  • contravention of any of the requirements of the Regulation;
  • to obstruct without reasonable excuse a person carrying out any functions under the regulations;
  • failure to comply with a reasonable instruction or a prohibition notice.

Offences are punishable on summary conviction by a fine but this amount is not specified. Prosecutions may be brought by the Crown Prosecution Service or any person designated by the Secretary of State.

Fixed penalty notices
As an alternative to prosecution, provision for a fixed penalty notice to anyone the authorised person believes has committed an offence and is over 18 is made at Regulation 10.  This is in the sum of £60 which is reduced to £30 if paid before the end of 14 days.  If a second fixed penalty is received this will be £120 and for a third and subsequent notice, double the amount of the previous notice, up to a maximum of £960.

The notice must include:

  • reasonably detailed particulars of the circumstances alleged to constitute the offence;
  • the period during which there will be no proceedings for the offence;
  • specify the amount of the fixed penalty;
  • state the name and address of the person to whom the fixed penalty may be paid;
  • specify permissible methods of payment.

The concern arises that to avoid prosecution an individual, who in fact has a reasonable excuse for whatever proscribed activity they are engaging in, will simply pay the fine.

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