The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020
The Health Protection Regulations 2020, informally known as "the Lockdown Regulations", was a statutory instrument enacted at 1pm on 26 March 2020 by the Secretary of State for Health and Social Care, Matt Hancock, in response to the COVID-19 pandemic. It became the principal delegated English legislation restricting freedom of movement, gatherings, and business closures during the COVID-19 emergency period until its repeal by The Health Protection Regulations 2020 on 4 July 2020.
SI 350 gave legal force to some of the 'lockdown' rules that had been announced by the Prime Minister Boris Johnson during a televised address on 23 March 2020.
The SI related to England only; there were similar regulations for Wales, Scotland and Northern Ireland.
Context
The first responses by the UK government to the developing COVID-19 pandemic took the form of guidance rather than legislation. Statements by the prime minister and other ministers included advice to schools to cancel trips abroad ; to the public to avoid non-essential travel, crowded places such as pubs and theatres, mass gatherings, and visits to care homes ; and escalated to the closure of schools, colleges and nurseries.Earlier regulations, in force 21 March 2020 (SI 327)
As a result of the COVID-19 pandemic the Government had on 21 March enacted The Health Protection Regulations 2020 which enforced the closure in England of businesses selling food and drink for consumption on the premises, as well as a range of other businesses such as nightclubs and indoor leisure centres where a high risk of infection could be expected. SI 350 revoked SI 327, which had come into force only five days earlier, and re-enacted most of its provisions with more extensive restrictions.On 25 March the emergency Coronavirus Act 2020 came into force, giving the government wide-ranging discretionary powers in a range of policy areas. However, the Lockdown Regulations and subsequent amendments continued, as a public heath matter, to derive their legal authority from the emergency provisions contained within the Public Health Act 1984, as amended.
Initial enactment, in force 26 March 2020 (SI 350)
Legal basis
SI 350 was introduced by way of a Statutory Instrument made by the Secretary of State for Health and Social Care, Matt Hancock, using emergency powers available to him under the Public Health Act 1984. The regulations themselves state the legal basis for using such powers, namely "the serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 in England"; he also certified that the restrictions "are proportionate to what they seek to achieve, which is a public health response to that threat."The regulations came into force immediately they were made, at 1pm on 26 March, and were laid before parliament at 2.30pm on the same day. The Secretary of State used section 45R of the Public Health Act 1984 to enact the regulations immediately subject to retrospective approval by resolution of each House of Parliament within twenty-eight days. In the regulations themselves he stated that "by reason of urgency, it is necessary to make this instrument" without – as would normally be the case – having first placed a draft before parliament for prior discussion and approval.
Scope and review
The regulations, impose restrictions during the "emergency period" which is defined as the period between 1pm on 26 March 2020 and such ending date as the Secretary of State may later specify. He is required to review the regulations at least every 21 days, and to terminate any restriction that he considers to be no longer necessary.Business closures
The business closures originally set out in SI 327 are re-enacted. With a few exceptions, all premises selling food or drink for consumption on the premises must remain closed including cafes, restaurants, bars and pubs; any adjacent seating area is to be treated as part of the premises. Hotels are, however, allowed to continue to provide food to guests via room service. The provision of food for consumption off the premises is now explicitly stated to be allowed.The regulation sets out a new and more detailed list of non food-related businesses that must cease entirely, including most sports venues, sports courts and gyms; indoor leisure facilities; nightclubs; personal care services such as beauty parlours, nail bars and hairdressers; cultural venues such as cinemas, theatres and museums; car showrooms; and all outdoor markets except stalls selling food.
In addition, libraries and all types of non-food shops are required to close unless they are on an approved list or are able to fulfil orders by delivery or without allowing personal access to their premises. The approved list of business premises allowed to remain open includes food retailers, supermarkets; hardware, homeware and convenience stores; off licences; banks, building societies and post offices; laundrettes and dry cleaners; medical centres, pharmacies; vets, pet shops; petrol stations; car repairs; bicycle shops; taxi and vehicle hire; funeral directors; storage facilities; building and agricultural suppliers; car parks, public toilets.
Subject to a few exceptions, all accommodation businesses such as hotels, B&Bs, holiday cottages and campsites have to cease operation.
Places of worship also have to be closed, except for funerals or to provide essential voluntary services such as food banks. Similarly, burial grounds and crematoria are off-limits to the public, except when actually in use for a burial or funeral.
Restrictions on movement
As a general rule, no person is allowed to leave the place where they are living without 'reasonable excuse'. No exhaustive definition of 'reasonable excuse' is provided, though the need to leave home to do any of the following is specifically allowed: to obtain basic necessities for those in the same household or for a vulnerable person; to obtain supplies for the essential upkeep, maintenance and functioning of the household, or that of a vulnerable person; to obtain money; to take exercise either alone or with other members of the household; to seek medical assistance; to provide emergency assistance, or assistance to a vulnerable person; to donate blood; to move house where reasonably necessary; to fulfil a legal obligation; to access critical public services including childcare; to continue existing child-access arrangements between parents; to avoid injury or illness or to escape a risk of harm.Travel for the purposes of work or voluntary service is considered a 'reasonable excuse' only if it is not reasonably possible to work at home. Religious leaders are allowed to leave home to attend their place of worship.
Leaving home to attend a funeral is allowed only if the deceased was a close family member or a member of the person's household. Attending the funeral of a friend is prohibited unless there are neither close family members nor members of the deceased's household in attendance.
Restrictions on gatherings
Generally, all public gatherings of more than two people are prohibited. The only exceptions are: where all persons are members of the same household; where the gathering is essential for work purposes; to attend certain funerals; or where reasonably necessary to facilitate a house move, provide emergency assistance, provide care to a vulnerable person, to participate in legal proceedings or fulfil a legal obligation.Offences and enforcement
Enforcement of the regulations is in the hands of the police, with provision being made for the local authority and the Secretary of State to designate additional people for some purposes.It is a criminal offence to breach the restrictions on movement, or without reasonable excuse to breach any of the gathering or business closure rules. Enforcement is by fixed penalty notice or by prosecution.
A police officer has the power to direct anyone in breach of the restrictions on movement to return home, and to direct unlawful public gatherings to disperse, in both cases using force if necessary. Failure to comply is an offence.
Expiry
If not previously revoked, the regulations automatically expire on 26 September 2020.First amendments, in force 22 April 2020 (SI 447)
SI 350 was amended on 22 April 2020, after 26 days, by The Health Protection Regulations 2020 .Legal basis
As with the original regulations, this statutory instrument was introduced by Secretary of State for Health and Social Care, Matt Hancock, using emergency powers under the Public Health Act 1984. The legal basis for the use of the powers is stated to be as before. The regulations came into force at 11.00am on April, and were laid before parliament at 12.30pm on the same day. The Secretary of State again used section 45R of the 1984 act to enact the regulations "by reason of urgency" subject to retrospective approval by resolution of each House of Parliament within twenty-eight days.Changes to the regulations
SI 447 corrects some errors in the original drafting, and deals with some unintended consequences. In connection with the restrictions on movement, it changes the wording from "no person may leave the place where they are living without reasonable excuse" to "no person may leave or be outside of the place where they are living without reasonable excuse" – thereby requiring a person travelling outside the home to have a reasonable excuse for the entire away-from-home period, and not just at the point of leaving the property.To allow people to grieve for lost friends or household members, a new 'reasonable excuse' is added to allow some visits to burial grounds and gardens of remembrance. It is made clear that outdoor swimming pools must remain closed, but that livestock markets may continue. Cash points may remain operational.
Second amendments, in force 13 May 2020 (SI 500)
SI 350 was again amended on 13 May 2020, after a further 20 days, by The Health Protection Regulations 2020 .Legal basis
As with the original regulations, this statutory instrument was introduced by Secretary of State for Health and Social Care, Matt Hancock, using emergency powers under the Public Health Act 1984. The legal basis for the use of the powers is stated to be as before. The regulations came into force at midnight prior to 13 May, and were laid before parliament at 9.30am on the same day. The Secretary of State again used section 45R of the 1984 act to enact the regulations "by reason of urgency" subject to retrospective approval by resolution of each House of Parliament within twenty-eight days.Changes to the regulations
SI 500 provides for the opening of garden centres and outdoor sports courts. It expands the list of "reasonable excuses" for leaving home to permit people to collect goods that have been pre-ordered from a business; to use a waste or recycling centre; and to move home and engage in related activities such as viewing properties to buy or rent.The rules on exercise away from the home are relaxed to allow it to be taken with several members of the same household or with one member of another household. Visits to public open spaces for the purposes of open-air recreation are also allowed, again if desired with several members of the same household or with one member of another household.
The fixed penalty for a first breach of the regulations is increased from £60 to £100 – as before, with a 50% reduction for prompt payment.
Third amendments, in force 1 June 2020 (SI 558)
SI 350 was again amended on 1 June 2020, after a further 19 days, by The Health Protection Regulations 2020 .These amendments increase the period for regular review of the regulations by the Secretary of State from 21 to 28 days.
Legal basis
As with the original regulations, this statutory instrument was introduced by Secretary of State for Health and Social Care, Matt Hancock, using emergency powers under the Public Health Act 1984. The legal basis for the use of the powers is stated to be as before. The regulations came into force at midnight prior to 1 June, and were laid before parliament at 11.30am on the same day. The Secretary of State again used section 45R of the 1984 act to enact the regulations "by reason of urgency" subject to retrospective approval by resolution of each House of Parliament within twenty-eight days.Changes to business closures
Outdoor non-food markets may now re-open, as may car showrooms. Outdoor sports amenities are also allowed to re-open, including water sports, stables, shooting and archery venues, golf courses and driving ranges.Some types of venue, previously not mentioned, are now explicitly required to remain closed, including indoor games, recreation and entertainment venues, theme and adventure parks, social clubs, model villages, aquariums and zoos, and farm attractions. In addition, indoor visitor attractions at venues which are otherwise allowed to open must remain closed: this includes shops and visitor centres.
Changes to restrictions on movement
SI 558 makes significant changes to the earlier regulations, sweeping away entirely the general prohibition against leaving home. This is replaced with a new general rule that "No person may, without reasonable excuse, stay overnight at any place other than the place where they are living." Again, this rule does not apply to homeless persons. The list of "reasonable excuses" is also new, and now includes: the need to stay elsewhere while moving house, to attend certain funerals, to fulfil a legal obligation or participate in legal proceedings; or where it is reasonably necessary for work purposes or the provision of voluntary services, to provide care to a vulnerable person, to obtain medical assistance or provide emergency assistance, or to avoid injury or illness or escape a risk of harm.It is also permitted to stay away overnight in order to continue existing child-access arrangements between parents; when the home is unsafe or unavailable; or where the person may not lawfully travel there or is required by law to stay elsewhere.
Additional exemptions are made for elite athletes, including permission to stay overnight away from home.
Changes to restrictions on gatherings
The previous regulation that restricted public gatherings is swept away, and is replaced by a new general prohibition that applies not only to public places but also to private places. This bans outdoor gatherings of more than six people, and all indoor gatherings of any size. A 'gathering' for this purpose is when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other. Outdoor gatherings of six or fewer people are allowed, no matter how many households are represented.A list of exceptions to this general rule is given; the list is exhaustive, and there is no open-ended "reasonable excuse" provision. The exceptions are: where all the persons in the gathering are members of the same household; certain funeral gatherings; or where the gathering is reasonably necessary for work or voluntary services, to facilitate a house move, to provide care to a vulnerable person, to provide emergency assistance, to avoid injury or illness or to escape a risk of harm, or to continue existing child-access arrangements between parents.
Gatherings for education and registered early years childcare are also permitted, thus allowing schools to re-open. Places of worship may again be used by registered early years childcare providers.
Additional exemptions are made for elite athletes, including the use of indoor elite training facilities.
Changes to offences and enforcement
The previous offence of leaving or being away from home without reasonable excuse is abolished. It is replaced with a new offence of staying away from home overnight, without reasonable excuse. The police have the power to direct any person breaching the rule to return home.The police continue to have the power to break up all unlawful gatherings and to direct people to return home. Where the gathering is in a public place they further have the power to remove persons to their homes, using force if necessary.
Fourth amendments, in force 13 & 15 June 2020 (SI 588)
SI 350 was amended on 12 June 2020, after a further 11 days, by The Health Protection Regulations 2020 .Legal basis
As with the original regulations, this statutory instrument was introduced by Secretary of State for Health and Social Care, Matt Hancock, using emergency powers under the Public Health Act 1984. The legal basis for the use of the powers is stated to be as before. The regulations came into force at on 13 and 15 June, and were laid before parliament at 2.30pm on 12 June, the first occasion that amendments had been presented to parliament before they entered into force. The Secretary of State again used section 45R of the 1984 act to enact the regulations "by reason of urgency" subject to retrospective approval by resolution of each House of Parliament within twenty-eight days.Changes to business closures
Under previous regulations, most retail businesses were required to close unless they appeared on a list of specific exemptions. SI 588 reverses this, allowing businesses to re-open from 15 June unless on a list of prohibitions. This was reported as allowing "non-essential stores" to start operating again.Businesses which remain prohibited from opening include restaurants, cafes, bars, pubs; theatres, concert halls; most cinemas, museums & galleries; nightclubs, social clubs, bingo halls, casinos; barbers, massage parlours and certain other personal service venues; swimming pools, skating rinks, gyms, playgrounds; funfairs, theme parks, model villages; certain indoor facilities including leisure and entertainment venues, sports courts, fitness studios and soft play areas; indoor attractions at otherwise-outdoor venues such as gardens, heritage sites, and places with outdoor animal exhibits including farms, zoos and safari parks. Libraries must also still remain closed.
In addition to the general re-opening of retail businesses, there are some more specific relaxations of the rules. Betting shops and auction houses may now re-open, as may drive-in cinemas and retail art galleries. Outdoor animal-related attractions such as farms, zoos and safari parks may open, as may most indoor shops within visitor attractions that are otherwise outside.
Where a library, a place of worship, or any business that is still required to remain closed has a shop in a self-contained unit with its own separate entrance, that shop may open. Similarly, a cafe in a self-contained unit is allowed to sell food and drink for consumption off the premises.
Places of worship may again be used for private prayer. The restrictions on community centres are relaxed to allow them once again to host indoor markets.
Changes to restrictions on gatherings and freedom of movement
SI 588 introduces from 13 June the concept of "linked households". This in limited circumstances allows two previously-separate households to be treated as one for the purpose of meeting up either outside or indoors. It also allows the members of one household to stay overnight at the home of the other.In order to become linked, one of the households must consist of exactly one adult, while the other can have any number of adults. Both households can include any number of children under the age of 18 on 12 June 2020. All the adults must agree to the linking, and each household may become linked to only one other household. If the linkage is later broken, neither household many subsequently link with any other.
The rules on gatherings are also relaxed from 13 June to allow medical appointments and births to be accompanied, and to permit certain visits to people in hospital, hospices and care homes. Some visits may also be made, regardless of location, to any person that the visitor reasonably believes is dying. Where necessary the visitor in each of these situations is also allowed to stay overnight away from home.
Repeal 4 July 2020
On 4 July 2020 the regulations were repealed in their entirety and were replaced with The Health Protection Regulations 2020. These regulations relaxed many of the restrictions, but introduced a new power for the Secretary of State to close outdoor public areas.Government announcements and advice
The powers granted by SI 350 must be reviewed every 28 days. On 16 April, the government extended the lockdown for a further 21 days.On 23 March the Cabinet Office and the Ministry of Housing, Communities and Local Government issued guidance listing the affected types of businesses, premises and venues, and the exceptions; this document was reissued on 13 May to reflect the SI 500 amendments, and for the first time referenced separate guidance issued by the three devolved administrations.
Following SI 500, the government published updated guidance on spending time outdoors, and updated earlier guidance around moving home.
Contrary to widespread media reports that people could only exercise once per day, neither the initial regulations nor the amendments make any mention of frequency or duration; nor have they required people by law to maintain the recommended two-metre separation.
Response
The cross-bench peer and human rights barrister David Anderson concluded:Barrister Kevin Holder said:
Lawyer and legal journalist David Allen Green said:
However, following amendment by SI 447, Green also said:
Former Justice of the Supreme Court, Lord Sumption, said that there is no moral or principled justification for these restrictions, saying: