The law of Lockdown 2.0 (from Nov 5th)

Fiction:

Lockdown is good for the nation’s health and follows an impact assessment.

Law:

From 5th November 2020 England dispenses with tiers and moves on with The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020. The regulations as made will cease to have effect after 28 days.

By this stage, the various regulations settled into a deceptively simple structure of 3 main restrictions. Within, however, they are complex with detail and exceptions. That is, no doubt from the government’s view, desirable. It means communicating that which is forbidden becomes easy and understanding what is not is difficult (for the public, police and lawyers).

No impact assessment has been made and everyone recognises that the restrictions on liberty will cause serious long term damage to the nation’s health. The new order of the regulations imposed on England, for which all but 38 members of parliament voted, is structured broadly as follows:

  • Don’t leave home
  • Don’t meet any more than 1 person at a time socially
  • Don’t open your business unless the government permits it
Restrictions on leaving home

No person may leave where they live without reasonable excuse. There is no restriction on where you go within your premises, so you are free to roam the garden and outbuildings if you have that luxury (reg 5).

The list of ‘reasonable excuses’ to leave is non-exhaustive. The list of expressly set out exceptions to the restriction is long, some of which are set out below. If relying on an excuse that is not expressly listed, necessity is not strictly required. However, otherwise and always subject to the condition that the activity is ‘reasonable necessary’. the listed exceptions are:

1. everyday circumstances

    • to buy goods or obtain services from any business or service listed as permitted to remain open (see below, Part 3)
    • to get money from a bank, building society or post office
    • to take exercise outside
    • to visit a public outdoor place for the purposes of open air recreation
    • to attend a place of worship
    • collecting from permitted take away/delivery services
    • to visit a waste disposal or recycling centre

2. for purposes of work, voluntary services, education and training etc.

    • for work where it is not reasonably possible to work from home
    • for education or training (this may cover, for example, home tutoring, music, dance and other educational activities.)

3. health reasons

    • to seek medical assistance, including to be vaccinated
    • to avoid injury or illness or to escape a risk of harm (a very important exception – see Low mood – a reasonable excuse to ignore coronavirus restrictions)
    • to visit a household member or close family or any friend receiving treatment in a hospital or staying in a hospice or care home or believed to be dying

4. to attend a funeral or visit burial ground or garden of remembrance of family or friend

5. for allow your children to access or be accompanied to educational facilities

6. for animal welfare, including to visit the vet and to exercise pets owned or cared for

7. to return from holiday

Restrictions on Gatherings

It is important to note that, as under previous regulations, there is no gathering unless people are present together in the same place either (a) in order to engage in any form of social interaction with each other; or (b) to undertake any other activity with each other. As we noted back in June (see Beach visits cannot be restricted) this does not mean you have to leave the beach, or the park, just because you are near others if you are not there with the purpose of, in order to, engaging with others. And a passing reminder, nor is there a law against hugging your friend in the park.

Gatherings are now limited to 2 people

Gatherings anywhere indoors or outdoors are restricted to 2 people (regs 8 and 9) unless an exemption applies (see below). However, no account is to be taken of children under 5 or up to 2 people present as carers for someone needing continuous care.

Organised gatherings of over 30 people

Holding, or being involved in holding, a gathering of over 30 people attracts specific and greater sanctions where such gatherings are

  • in private dwellings
  • in public outdoor places which are not operated by (or part of premises used for operation of) a business, a charitable, benevolent or philanthropic institution or a public body or a political body
  • raves indoors

Exceptions on limits to numbers gathering include where:

1. All are are members of the same or linked household i.e. where one or both households include only one adult. (It is not permitted to change linked households.)

2. The gathering is reasonably necessary

    • for work purposes or for the provision of voluntary or charitable services

    • for the purposes of education or training

    • to avoid injury or illness or to escape a risk of harm

    • to provide care or assistance to a ‘vulnerable person’ (including anyone pregnant, 70 or over or with an underlying health condition)

3. Gatherings for ‘support groups’ of up to 15 people, but not in private dwelling. Support groups are defined as being “organised by a business, a charitable, benevolent or philanthropic institution or a public body to provide mutual aid, therapy or any other form of support to its members or those who attend its meetings.” (‘Business’ is not defined. so no reason why this could not include a sole trader and a new business venture.)

4. Respite care

5. Attending birth at the mother’s request

6. Attending funerals (up to 30 people) and marriage and civil ceremonies (up to 6 people), subject to the required precautions of conducting and applying a risk assessment to limit the risk of transmission of Covid-19 (reg 14)

7. Attending a commemorative event (up to 15 people) to celebrate the life of a person who has died. This cannot be at a private dwelling and is subject to the required precautions. Although example is given of a stone setting or scattering ashes, opportunity was not taken to exclude a traditional, albeit covidified, wake.)

8. Reasonably necessary

    • for registered childcare
    • for supervised activities for children aged 13 or under to enable the person with parental responsibility to work, to search for work or to undertake training or education
    • for informal childcare for a ‘linked childcare household’ i.e. where at least one of linked households has a child aged 13 only. It is not permitted to change linked childcare households.

9. Organised Remembrance Sunday commemorations subject to the required precautions.

Restrictions on businesses

The regulations set out a three part schedule of businesses and premises subject to varying degrees of restrictions. The links will allow you to check where your business is listed.

Part 1: hospitality businesses

Regulation 15 requires the listed businesses to close their premises and cease providing food or drink for consumption on the premises (including areas adjacent with seating or habitually used by customers, regardless of ownership). However, an exemption (see reg 17(1) to (3)) allows:

  • between the hours of 05:00 and 22:00: selling food or drink (but not alcohol) for consumption off the premises
  • between the hours of 22:00 and 05:00: selling food or drink (including alcohol) for consumption off the premises where sale is for collection (without entering the premises or to a person in a vehicle) or by delivery and, in either case, being in response to orders received (i) through a website, or otherwise by on-line communication (ii) by telephone, including orders by text message, or (iii) by post

Food or drink provided by a hotel or other accommodation as part of room service remains permitted. Motorway service areas remain permitted to allow consumption in adjacent seating areas.

Part 2: other businesses

Reg 16 requires these businesses simply to close their premises, subject to the exceptions made for some specific business premises:

  • premises for blood donation
  • premises used for the making of a film, television programme, audio programme or audio-visual advertisement
  • facilities for training by elite sportspersons, including stables, indoor gyms, fitness studios, and other indoor sports facilities, and any outdoor facilities for sport
  • indoor fitness and dance studios by professional dancers and choreographers
  • theatres and concert halls for—(i) training (ii) rehearsal or (iii) performance, in each case (it appears from the guidance) without an audience for broadcast or recording purposes
  • indoor gyms, fitness studios, indoor sports facilities and other indoor leisure centres, in each case (it appears from the guidance) for supervised activities for children
  • indoor gyms, fitness studios, indoor swimming pools, indoor sports courts and other indoor leisure centres and outdoor sports courts and swimming pools by schools or providers for post-16 education or training
  • stables for care or exercise of animals

Part 3: businesses permitted to remain open

The Part 3 list does not have any specific restrictions applied to it. If your business is not listed in any of the parts, however, then it has not necessarily escaped.

Other shops and libraries

For libraries and for shops offering goods for sale or for hire which are not listed in Part 3 as permitted to remain open, they must close their premises and cease selling goods or providing their services except:

    • for collection (without entering the premises ) or by delivery and, in either case, being in response to orders received (i) through a website, or otherwise by on-line communication (ii) by telephone, including orders by text message, or (iii) by post
    • for providing hot or cold food for consumption off the premises
    • for providing goods or services to the homeless
    • to open premises for the purposes of making a film, television programme, audio programme or audio-visual advertisement

Libraries premises may also remain open for the purposes of—

  • support groups
  • registered childcare
  • education or training
  • to provide essential voluntary services or public support services, including digital access to public services

[Further notes about hotel accommodation, places of worship and community halls will be added to this post, as may notes about the enforcement provisions. Time, however, has been short while the regulations are long. ]

 

Miscellaneous commentary

There has been little time to look for slithers of light under the dark cloud of these regulations. We will come back to look for the cracks but meanwhile hope the following may be helpful to some

  • Any theatre or concert hall is able to put on a show for broadcast or recording, not just Strictly at the BBC.
  • Hospitality businesses may find some ingenuity in use of text and social media for sale of food and drink including alcohol, subject of course to licensing restrictions.
  • The government guidance in relation to these regulations uses language that you “should minimise time spent outside your home.” There is no legal requirement arising from that guidance.
  • The guidance states “When around other people, stay 2 metres apart from anyone not in your household.” Again, there is no legal requirement arising. If you meet a friend in the public park to exercise together, you may hug or wrestle as you wish.
  • Government guidance had also suggested staying overnight at a linked household was not permitted. Again, this is not banned in the regulations. Indeed, there is no ban on overnight stays. If there is a reasonable excuse to have left the home and remain away, then there is no law against staying overnight elsewhere.
  • As for homebuying and selling, increased interest in moving homes might be expected during lockdown since, apart from more advanced arrangements in the process, the exceptions includes a rather broad “viewing residential properties to look for a property to buy or to rent”.
  • Taking care in particular of mental health, perhaps the most important of the exemptions to remember is where gathering, meeting others, is reasonably necessary to avoid injury or illness or to escape a risk of harm. Do read Low mood – a reasonable excuse to ignore coronavirus restrictions.

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Warning: Law and circumstances can change very quickly.  Please note the date of publication of any blog post and check for any updates on the issues addressed. In any event, we do not condone or encourage breaching the law and neither the above nor any information posted on this website constitutes legal advice. It must not be relied upon as such and specialist legal advice should be taken in relation to specific circumstances. Please read our disclaimer.

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3 thoughts on “The law of Lockdown 2.0 (from Nov 5th)”

  1. The thing which I always find unclear is whether you can drive for exercise? For example, is it wrong to drive for 20 minutes to a local park or beach for exercise?

  2. “Gatherings anywhere indoors or outdoors are restricted to 2 people (regs 8 and 9) unless an exemption applies.”. Reg 8 (meeting indoors) prohibits a gathering of 2 or more people. So surely this means you can’t meet anyone indoors unless they are part of your household or linked household? Reg 9 (meeting outdoors) prohibits more than 2 people so 2 is ok. Can you please check and confirm?

  3. DevonshireDozer

    I really do appreciate what you are doing here. The entire British establishment has turned on its citizenship. People I know well are being put out of business. Others are being denied normal health care & regular treatment for diseases such as cancer, MS & other nasties. They are suffering unnecessary pain & will die prematurely.

    AFAIK you are the only people putting up legally sound responses to the outrage – excellent lectures by Lord Sumption excepted.

    Are causes such as yours eligible for legal aid? If an appropriate person walked into one of your offices & asked to build a case, what financial assistance would they be entitled to?

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