The law of lockdown 3.0 (from January 6th)

Fiction:

Guidance is law. The Police and public understand both.

Law:

The government guidance on lockdown 3.0 opens with apparently deliberate ambiguity: “You should follow this guidance immediately. This is the law.” The juxtaposition of those sentences, even with the link included, appears intended to suggest the law requires you to follow the guidance. Such is misleading and not true. Citizens have a choice whether or not to follow the guidance.

Introduction

The law imposing lockdown 3.0 is set on in The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020. These provide for the 4 tiers pre-Christmas 2020, but we can forget the tiers other than tier 4 which has been expanded to the whole of England. (Wales and Scotland have similar restrictions, but a bit different, of course.)  These regulations due to expire, unless extended of course, after 31st March 2021, subject to review by Mr Hancock at least once every 28 days.

The drafting of the coronavirus regulations developed significantly over 2020, becoming ever longer and ever more complicated and changing constantly. As a result this note is rather long as well as overdue. Despite the opening salvo, in many respects the drafting of guidance is commendably clear and often in line with the strict legal position. Regrettably, that cannot be said of all of it.

This note does not deal with all issues and complications but hopefully picks up some of most common regarding the main restrictions in place.

Overview

The principle restriction, as indicated by the title to the guidance, National lockdown: Stay at Home, is that people are required to stay at home unless there is a reasonable excuse not to do so. (Although some have referred to imprisoning the population in their homes, the Courts have held, in terms, that as a matter of law this is not to be regarded as imprisonment.)

The three central instructions to tier 4 are found within Schedule 3A, Tier 4 Restrictions and can be summarised in this way. You:

  • Cannot leave your home
  • Cannot meet anyone
  • Cannot open your business

Wherever you are in England, you must not be in breach of any one of those instructions. This is, of course, subject to complex exceptions for you to try to understand. First, however, some key definitions.

Linked households and linked childcare households

Where the guidance refers to “support bubbles”, the regulations refer to “linked households (as defined by reg 3). This provides a relaxation of the restrictions allowing two households to gather together as if they were one. Essentially, the requirement for linking is that one of the households includes:

  • only one adult (with or without children); or
  • a child who is under one year old (or was under one year old at 2nd December 2020)  or is under five with a disability, in which case the number of adults is irrelevant; or
  • only children

When counting adults, you may exclude anyone requiring continuous care. Most commonly, however, the concept of linking will allow for the person living alone to be counted as part of another household.

The same principle of linking applies where, regardless of the number of adults, one of the households has a child age 13 or under and the purpose of a gathering in question is to provide informal childcare to the child. This situation allows for a “linked childcare household”. Any references below to linked households will include where they are linked for that purpose, i.e. activity, of providing informal childcare to a child age 13 or under. This includes ‘education’ and ‘supervised activities’ where relevant.

Whatever the nature of the linking, whether for the limited permission of informal childcare or not, only two households may be linked together. Multiple linking of the perplexing sort envisaged to have permitted people to share a Christmas turkey is not permitted.

Although there is, for the moment at least, no requirement to register the linking of any households, it is not generally permitted to swap and change linked households at short notice. If you wish to link with a different household, you must allow a minimum period from the last gathering between any members of the currently linked households. That period is 10 days.

Required precautions

References below to taking ‘required precautions’ are to the requirement to conduct and apply a risk assessment to limit the risk of transmission of Covid-19. This must also be done in accordance with government guidance relating to such an assessment. Unusually, therefore, this is an instance of where guidance is incorporated into the law creating a legal obligation.

public outdoor place

“Pubic outdoor space” is probably just what you expect it to be save that sports grounds are now excluded. If necessary for reference, it is defined in reg. 2 to include public gardens, open countryside and highways and, it would seem for exercise at least, by further a definition to include botanical gardens, gardens or grounds of a castle, stately home, historic house or other heritage site. Part 1, paragraph 2. (The guidance also makes explicit reference to beaches, forests and public playgrounds and those are included.)

Restrictions on leaving home

The basic principle is: no person may leave or be outside the place where they live without reasonable excuse.

There is no restriction on where you go within your home premises, so you are free to roam the garden and outbuildings (or visit the duck house) if you have that luxury (para 1(2)(b)).

The list of ‘reasonable excuses’ to leave or be outside the home is non-exhaustive. (Contrast gathering exceptions below.) Although long, you may have an excuse that is not listed. Note that if relying on an excuse that is not expressly listed, necessity is not strictly required. The word ‘essential’ is only used in the legislation in the context of voluntary activities and life skills training. However, given the prominence that ‘essential’ has been given in guidance and the media, this will no doubt be something in the mind of any relevant officer who wants to ‘consider’ if the excuse is reasonable.

The listed exceptions are as follows, using the italicised and numbered headings as appear in the regulations, with our commentary below each as relevant.  The exceptions allowed for leaving home and gathering overlap, so even though first addressing a leaving home exception the nature of a gathering may be a key circumstance to consider.

The listed exceptions

Note that each of these exceptions is always subject to condition that the activity is ‘reasonably necessary’.

As numbered within Part 1, paragraph 2, they are as follows:

  1. leaving home necessary for certain purposes
    • to buy goods or obtain services from any business or service permitted to remain open (see below, Part 3) for
          • anyone in your household
          • any vulnerable person or persons who has a disability, and/or anyone in their household

Note: there is no legal requirement to restrict purchases to basic necessities. This is only suggested in the guidance.

    • to get money from a bank, building society or post office
    • to take exercise (see below)
    • to attend a place of worship
    • activities in connection with residential property sale or rental etc
    • to visit a member of linked household
    • collecting from permitted take away/delivery services
    • to visit a waste disposal or recycling centre

A note about exercise, the police and travel

Exercise may be taken anywhere outside if alone, or with any number of members of the household and/or linked households.

Otherwise, exercise with others is limited to being with only one other person and must be in “a public outdoor place.” However, no account need be taken of up to 2 carers in the gathering acting as such or of any number of children under 5 years old.

The guidance suggests you should minimise time spent outside your home, that exercise should be limited to once per day, and that you should not travel outside your local area. None of those stipulations are made in law. However, those suggestions may or may not reflect relevant considerations as to what is reasonably necessary.

The amount of exercise thought necessary by any person will vary vastly and this may seem difficult for any enforcement officer reasonably to make an assessment that someone’s amount of exercise is unreasonable, whether on sight or on questioning.

The regulations put no restrictions on the distance of travel allowed to any place but this could be relevant to the reason for needing to go a particular place. A walk next to a lake rather than a crowded park might be reasonably necessary for mental health and exercise (including the ‘exercise’ of fishing). But although exercise at Lake Windermere might be necessary for some, the need to drive to Cumbria from London might reasonably be considered a breach of the regulations if exercise were the only purpose of the trip.

Notably, visiting a public outdoor place for the purposes of open air ‘recreation’ has been removed from the list of examples. This likely means that some form of exercise, even if just a walk, is required above and beyond sight-seeing unless some other ‘reasonably necessary’ excuse applies.

However, if within striking distance of the seaside or needing the particular benefits of sea air, so that there is a reasonable excuse to be there (broadly for exercise or mental or physical health) and it is reasonably necessary, then it is difficult if not impossible to appreciate any breach of the regulations by virtue of, for example, simply being witnessed sitting on a bench. For any police force to adopt a policy and mindset, as is the appearance from this twitter shared video, to consider that sitting on a bench is a circumstance indicating that the reason for being at and remaining at the seaside must have ceased to apply, is extraordinary. Or at least it used to be. We must hope that those in power take steps to stop such scenes being repeated.  (The link to this video was working when published. It has been suggested that the incident is a set up of some sort but, regardless, it appears the infringement being punished is sitting on a bench and this fits the mood music emanating from SAGE and the government.)

Meanwhile, the safest course for those not wanting to be subject to such intimidation by officers is not to be seen sitting for too long and to remain conscious of the reason for sitting in that place, ready to answer an officer’s challenge. (What have we become?) One might expect typical reasons to include

          • taking a rest before, within or after the period the exercise, for the purpose of having effective exercise
          • for mental health purposes and to avoid low mood or other mental illness arising from being locked up at home or from other circumstances
          • needing a rest before going to the next place such as the supermarket in the vicinity
          • waiting for an arranged meeting for exercise with one other person (or some other permitted purpose reasonably necessary)

There is no limit in the law on how many different people you may exercise with during one day, subject to any gathering restrictions that may require it be with one person at a time. Drinking a cup of coffee is also not something that should negate any of the above reasons for sitting down or standing still.

In relation to ‘exercise’, this is not defined in the regulations, but in another example of making law on the hoof and without parliamentary scrutiny, government officials have formally stated it to include fishing. That being a correct statement, presumably skimming stones at the sea or over any body of water would be exercise and a reasonable excuse. And if it is the contemplative exercise of fishing that is relevant, should that then not be appropriate to permit a visit to a beauty spot? The confused legislation and guidance has put police officers and the public in a position of farce.

The law is subtle, the facts will always be difficult to establish but the legislation puts whatever the officer ‘considers’ is happening as a reason to take enforcement action. For avoidance of doubt, refusing to answer any questions to police is not a recommendation we make or one we could make. All depends on the circumstances and, hopefully, in all but the rarest of cases it remains sensible to engage politely. Although freedom used to mean you could leave home and remain somewhere just to enjoy a view and some peace or just because you felt like it, the law today requires you to have a ‘reasonable excuse’ to be away from home and officers will expect most people to be aware of what that excuse is. “Why are you here?” is an intrusion of privacy, but the officer can consider if the answer provides a reasonable excuse.

It certainly seems that the police are being encouraged to believe they can ask that question regardless of the, perhaps not unlawful, distress this may cause to many or and regardless of the distress, likely unlawful and in breach of disability discrimination law, this may cause to those with disabilities that may not be obvious.

That all said, refusal to engage appears to be a position adopted by some and there might even be some circumstances where it is appropriate.

This is not an appropriate place to detail how or how not to interact with the police. However, on challenge, and without need first to offer any additional information, an officer might always and politely first be asked “why have you considered I am not here for a lawful reason?”  If they can offer no reasonable suspicion there not being a ‘reasonably necessary’ excuse, then those who are brave enough to refuse to answer further questions may have useful evidence in defending any attempted prosecution shown to rest on a baseless assertion. That is unless the Courts determine the law now is such, either as a matter of law or of practical application of it, that being away from home nearly always gives rise to a presumption of unlawfulness. Such is not, however, stated in the regulations.

In passing on the issue of travelling, if a car left undriven for long periods has to be driven for a period of time and at reasonable speed to avoid suddenly large maintenance bills, there should be no reason not to use a necessary drive to go somewhere pleasant. The travel, as opposed to exercise, may then itself be for a reasonable excuse. (Of course, the activity at the destination will have to be reasonably necessary.)

On the theme of driving, a learner driver may have the reasonable excuse of developing skills and seeking qualification to allow access to work. The person teaching (assuming not a professional instructor who would be working in any event) may argue to have the reasonable excuse of assisting that same purpose. As for their gathering together, inside a car has not by the legislation been included in the definition of ‘indoors’ and our view is that it is not, despite the guidance. In which case, they will when on the highway be in a “public outdoor space”. Further, however, given how many jobs require ability to drive, the gathering may come under the exception for exams and assessments carried out in connection with meeting a requirement for a particular area of work. (see Part 2, paragraph 6(3)(j) and (l))

Finally, it may be observed there is no limit on the distance between linked households, so permitted visit to a linked household could be over hundreds of miles and potentially even abroad.

  1. for purposes of work, voluntary services, education and training etc.
    • for work where it is not reasonably possible to do this from home

Practicality of working from home will vary wildly. It may depend on assessment of needs in the workplace but also the strains of home working. This may include, for example, interruptions from other members of the household. An employer is also not required to accept lower productivity but may also be entitled to demand the same productivity from an employee at home as in the workplace. What is, or is not, reasonably possible will often be difficult if not impossible for anyone but the employee and employer to assess.

    • for education or training

The education exemption, set out by reference to exempted gatherings listed at paragraph 6(3), permits leaving the home for the purpose of a gathering with purpose of education. (Yes, that wording is convoluted, but it is how the regulations work!) It appears this exception will cover the purpose of your education or anyone else’s.

Leaving home, and gathering without limitation on numbers, is permitted for the “educational activities of a school”. That is a very wide phrase that would include sport, music, drama and all usual extra-curricular activities. It also means there is no law stopping schools and colleges opening or teachers and children attending. (It is purely a matter of guidance and the choice of local authorities and schools to tell students to stay at home. It also suits the government since it makes legal challenge to the closure of schools and the interruption to children’s education or how it is provided more difficult.)

The education exemption applies generally to formal education and training. Although gathering for informal home schooling is not included, there is no reason why parents cannot formally opt to home-school their children. Having done so, they would seem to be permitted to gather with their children in each other’s homes, without limitation on numbers or place, such activity simply being reasonably necessary for such educational purpose.

Children at private schools are also afforded practically limitless flexibility. “The suitable education of a child otherwise than by regular attendance at school” can be “arranged by the proprietor of a school at which the child is a registered pupil.” (paragraph 6(3)(f)).  Suitable education for a child means “efficient education suitable to his age, ability and aptitude and to any special educational needs he may have.” There would appear to be no reason why a proprietor could not arrange for the school children to gather in their school or any other place at all, gathering of groups at different parents’ homes if desired, or by visits to homes by the teachers, for example.

In all events, there is simply no legal necessity for education to be delivered to children online instead of face to face.

Private tutors in business for themselves or others will not only be working but will fall within the education exemption, whether for the specific purpose of meeting all or part of the entry requirements for an educational institution or for the more general purpose of the suitable education of a child. This would seem to include preparing for entrance exams and to achieve grades sufficient to enter university or college (paragraph 6(3)(g)(ii)). If the entry requirements take account of achievements for sport, music, dance etc, again this would seem to cover such activities under home tutoring.

The exemption also relates to the purpose of “applying for, and obtaining, work”. Again, this may be reasonably necessary for you or to assist someone else in that purpose.

    • to provide care or assistance to a vulnerable person or person who has a disability

Remember here that ‘vulnerable person’ includes anyone over 70, anyone pregnant, and anyone who has an underlying health condition. (Specific conditions are listed but is a non-exhaustive list of examples in the introductory interpretation at section 2(5).)

This is a wide exemption and the focus of lawfulness will be whether the activity in questions is ‘reasonable necessary’. It means there is no excuse for any such ‘vulnerable person’ not to be visited to be given necessary assistance or to suffer the harms of mental illness arising from isolation.

As for social distancing and face covering etc when visiting, that is matter for personal choice as to how far observing any government guidance is or is not appropriate.

    • to provide emergency assistance to any person
    • to access critical public services,
    • to access services provided by voluntary or charitable services, including food banks
  1. elite athletes
  2. medical need etc.
    • to seek medical assistance, including to be vaccinated or donate blood or attend medical trials
    • 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 to accompany them to a medical appointment

“close family” is not defined but in event of debate then the same person is likely at least to fall in the category of ‘friend’.

  1. to attend support group or provide respite care
  2. for death bed visit

Although the phrase “death bed” is used as a sub-heading in the regulations (Part 3A, paragraph 2), it is not used in the same exception for gatherings (see below). In fact, the text of the exception is to permit visit to a household member or close family or any friend simply “believed to be dying”.

Accordingly, this would seem to apply to visiting anyone who has been told they have life shortening condition with even several months or years to live. One might imagine such persons to be deserving of a visit. It may also cover the frail elderly nearing end of life, though they would likely be covered by other exceptions anyway.

Further to extinguish the ‘death bed’ reference, the guidance itself includes, as examples with our emphasis

to visit someone who is dying or someone in a care home (if permitted under care home guidance), hospice, or hospital, or to accompany them to a medical appointment.”

to visit someone who is dying or to visit someone receiving treatment in a hospital, hospice or care home, or to accompany a family member or friend to a medical appointment”

It would seem there has been a deliberate decision not to make ‘death bed’ or any particular period of closeness to death being a criteria for consideration. The heading does not permit of a strict interpretation to allowing visits only as the grim reaper approaches.

  1. to attend a funeral or visit burial ground or garden of remembrance of family or friend
  2. to attend a marriage ceremony, a civil partnership ceremony or an alternative wedding ceremony
  3. children
    • for parental contact, sibling contact where one child is under local authority care, prospective adoption etc
    • to access or be accompanied to educational facilities (e.g. to get children to school or any place where they are being educated)
    • for purposes of supervised activities for children under 18 to allow a parent or a person who has parental responsibility for the child to work or search for work, or to undertake training or education, or to attend a medical appointment or address a medical need.

NB. This exception is now only available to parents who are described as critical workers in the relevant government guidance (see guidance for schools colleges and local authorities on maintaining educational provision) or when provided for a child described in the guidance as a vulnerable child or young person. This is a further example of guidance being incorporated into law, guidance which has already changed once since the law was finalised. For many parents and teachers concerned about education at home, this guidance is important.

    • for purposes of informal childcare for children aged 13 or under provided to a linked childcare household
  1. for animal welfare, including to visit the vet and to exercise pets owned or cared for.
  2. returning home

This permits simply returning home from holiday. There is no exception simply to go on a holiday.  There is also no compulsion to return from a second home to one’s main home.

  1. prison and immigration detention visits to any close family or any friend
  2. voting
  3. permitted outdoor sports gathering for persons with a disability

This refers to gathering for others than elite sportspersons. The gathering is unlimited by numbers but must be (a) organised by a business, charitable, benevolent or philanthropic institution or a public body, (b) held somewhere other than a dwelling and (c) the organiser or manager must take the usual ‘required precautions’.

  1. [removed – the exception for organised ‘parent and child groups’ of up to 15 for benefit of children up to 5 years old not held in a dwelling. Note, however, support groups for new parents remain allowed.]
  2. students and vacation households

This allows for higher education students to move from a student household to a vacation household, and back again, on one occasion before 8th February 2021.  (Note this exception and fixed date was set in place at 30th November 2020, well before and suggestion that tier 4 would continue into February. Who would have thought…?)

  1. picketing 

This exception was added at 26th December 2020. Picketing must be in accordance with ‘required precautions’.

By contrast with picketing being added, an explicit exemption to allow organised gathering for purpose of protest has, after a brief appearance in the Coronavirus regulations, been removed. Remember, however, that the list of exemptions is not exhaustive. The right to protest remains a fundamental under the European Convention on Human Rights, article 11, the right to freedom of assembly.

While various gatherings of people for worship and education indoors and outdoors are permitted, it is difficult to see how banning protesting outside – subject to seeking agreed conditions – would be justified as proportionate and necessary on health grounds. That said, the Courts have so far appeared very receptive to the government and media assertions of risks to health.

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 a public outdoor space, such as a beach or park, just because you are near others if you are not there with the purpose of, i.e. in order to be, engaging with others.

And a passing reminder, nor is there a law against hugging your friend in the park. That is a matter of guidance.

Gatherings are now limited to 2 people

In the simplest of terms, you are no longer allowed to arrange to meet with any other person unless one of the exceptions applies.

  • you can meet with only one other person and
  • the purpose of the meeting must fall within the listed exceptions.

Although circumstances could arise where a Court could accept that the list is too restrictive, for example that protest is in fact permitted, it should be noted there is not a general ‘reasonable excuse’ exception to permit gathering with others.

More technically:

  • you are not allowed to gather indoors unless an exception applies.
  • you are also not allowed to gather outdoors except in one of the specified “public outdoor places” (see above)

When counting heads , there is further exception when gathering in support groups no account is to be taken of any children under 5 or up to 2 people present as carers for someone needing continuous care.

For completeness, for those who imagine the day when areas may be released to a lesser tier, the restriction would also apply to people living in a tier 4 area when they visit a lower tier area. They take their gathering restrictions with them.

Organised gatherings of over 30 people

If a gathering occurs of over 30 people, then this attracts draconian sanctions for the organisers.

More particularly, that is anyone who has breached the restrictions by “holding, or being involved in holding” such a gathering that is any of

  • in a private dwelling
  • in public outdoor place 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
  • an indoor rave

If the numbers are 30 or less, the lesser graduated fixed penalty notice scheme applies, starting at £200 for the first such notice.

There is potential for many gatherings to fall between the gaps and avoid a £10,000 notice. As illustration, a chamber music or even acoustic pop concert, not being a rave as defined (which requires amplified music played during the night), and not held in a private dwelling but in a private space and yet still attended by more than 30 people, would not attract the £10,000 fixed penalty notice for any organiser. The lower graduated fixed penalty notices for anyone attending would, however, apply assuming no other exception, such as for education, applied.

General exceptions on limits to numbers gathering

By contrast to exceptions for leaving the home, the list of exceptions to the restriction on gathering is exhaustive. That list, using the same numbering and italicised headings as in the regulations at Part 3, paragraph 6, is as follows.

  1. all are members of the same or linked households  (see above leaving home exceptions) 
  2. education and training  (see above leaving home exceptions)
  3. gatherings necessary for certain purposes (see above leaving home exceptions)

Note that for each of the following certain purposes, the gathering must be “reasonably necessary”

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

“for work purposes” is very broad and one of the most important exceptions. According to guidance it must be “not reasonably possible” to have done the work from home, but the permitted excuse listed in the regulation uses required only that the gathering is “reasonably necessary” and that being outside the home is a reasonable excuse. The guidance seems to go somewhat further.

    • for the purposes of education or training
    • 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 provide care or assistance to a ‘vulnerable person’ (including anyone pregnant, 70 or over or with an underlying health condition)
    • for a house move
  1. legal obligation and proceedings
  2. criminal justice or immigration detention accommodation
  3. support groups

This exception provides for people needing group therapy or similar support e.g. Alcoholics Anonymous. Gatherings for ‘support groups’ of up to 15 people are permitted, but not in private dwellings. Children under 5 in attendance, however, will not be included in the numbers.

More specifically, 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 this could include a sole trader and a new business venture.)

  1. respite care
  2. attending birth at the mother’s request
  3. marriage and civil ceremonies etc.   (up to 6 people)
  4. funerals (up to 30 people)
  5. commemorative event following a person’s death (up to 6 people)

Although example in regulations is given of a stone setting or scattering ashes, a traditional wake is not excluded. That is so obvious as to seem a deliberate omission and perhaps the draftsman could conceive of a toast or two to the departed.

All funerals, marriage and civil ceremonies and commemorative events are subject to be organised with the usual ‘required precautions’ and cannot be at a private dwelling.

In each of these types of gathering (weddings, funerals etc), all persons including all children of any age are included in the headcount. There is no exception for those under 5.

  1. elite sports
  2. children  (see above leaving home exceptions)
  3. [removed: parent and child groups]
  4. students and vacation households (see above leaving home exceptions)
  5. communal worship

The gathering must be for the purposes of communal worship and in a place of worship. Participation must be alone or as a member of the same or two linked households and ‘mingling’ with other groups is not allowed.

There is no restriction on numbers in the gathering but the usual ‘required precautions’ will have to be taken with the practical effect of there being some limit according to the size and facilities of the venue.

  1. picketing (see above leaving home exceptions)

Those organising picketing will be required to take the usual ‘required precautions’ and of course have regard to any limits on numbers or arrangements arising from other legislation.

Exceptions specific to gatherings indoors or in non-public outdoor places

In addition to the general exceptions for gathering, there are the following exceptions for gathering indoors or in non-public outdoor places. (Part 3A, paragraph 7)

  1. visiting a dying person

Notably the phrase “death bed visit” is not used in this exception heading (Part 3A, paragraph 7), unlike the same exception “6. for death bed visit of family or friend” used in relation to leaving home (see above).

  1. visiting persons receiving treatment etc.

This is much the same exception as appears under the heading “medical need“ for leaving or being outside the home. The exception is 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 to accompany them to a medical appointment.

Exceptions specific to public outdoor places

There is a single exception here, so no heading is given.

The exception is for an outdoor sports gathering for persons who have a disability taking part in any sport or fitness related activity.

The gathering must be organised and subject to the usual required precautions. As with the leaving home exception (see above: 14. permitted outdoor sports gathering for persons with a disability), remaining in attendance at the meeting in capacity of parent or spectator is not permitted; so, drop and pick up only.

Enforcement and Fixed Penalty Notices

A relevant person (for above purposes, a police or community support officer) can issue a fixed penalty notice (FPN) to anyone they reasonably believes has committed an offence under the regulations and is 18 or over. Increasing the level of threat, the first penalty is £200, reduced to £100 if paid within 14 days.  Subsequent fines double, from £400 and upwards until they get to £6,400 and there is no reduction for prompt payment.

A person who, without reasonable excuse, obstructs, contravenes a direction, or fails to comply with an instruction from an enforcement officer under the regulations commits an offence punishable on conviction by a fine.

Earlier posts dealing with enforcement and levels of fixed penalty notices remain relevant. See towards the end of Face covering – some pretend law 

Closure of, and restrictions on, businesses

Having regard to length, this note does not deal with closures and restrictions on businesses set out in Schedule 3A, Part 3. Businesses will already be painfully aware and have considered the restrictions upon them, They have been subject to the strategy of the government since March 2020 of using threats of enforcement under health and safety legislation with which to keep their business closed. As for whether those threats are well founded in law, that may be subject to argument on which point you may find this article of interest:  Risk assessments: an important chink in the lockdown armour

 

Wales Welsh Flag Free Stock Photo - Public Domain Pictures

The situation is Wales is very similar to England, but usually with a twist.  For example, Wales refers to ‘Alert level 4 area’ rather than a tier 4 area. The particular businesses given grace to remain open may or trade varies.  Far more significantly, however, Wales is the far greater incorporation of guidance in the Coronavirus regulations, guidance that may change at any time and be written by anonymous unions or committees with no accountability or scrutiny. By such methods, Mr Drakeford, the First Minister, and Vaughan Gethin, the Health Minister, have conspired, for example to make singing illegal. So much for the land of song.

Wales regulations and guidance can be found here. They are, of course, complicated:

 

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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8 thoughts on “The law of lockdown 3.0 (from January 6th)”

  1. Hi All,
    In the last main paragraph, you state:

    “Wales is the far greater incorporation of guidance in the Coronavirus regulations, guidance that may change at any time and be written by anonymous unions or committees with no accountability or scrutiny.”

    So my question is:

    Is this “guidance” still a matter of choice to obey or is it law that we have to follow in Wales?
    Thanks in advance.
    Tony

  2. They have made singing illegal in Wales? What next?

    Is there any legal avenue to remove these monsters from power?

    It seems they have given themselves the power to impose their will upon us all instead of representing our choices and decisions. We did not give them the power to do this. They should be sacked.

    1. It’s only legal because you observe it as such..it’s like quauntum mechanics..it changes depending on how you perceive it.If people in enough numbers decide to start singing and organized it then they would need to allow it..If they tried to disrupt it and the majority of the country had agreed it was unlawful to stop them then they would be in breach of their duties to uphold public service.
      No one could ever prove in a court of law that what they were doing was putting anyone in harms way.This is ludicrous and people need to resist this with all their might.

    2. Andrew The Taxpayer

      There are multiple ways of removing Messrs Drakeford and Gething from power. Most popular (with me) is lashing them to the statue of Sir Thomas Picton and dumping them in Cardiff Bay at high tide.
      More legal and less lethal, there are the Welsh Assembly Elections which must take place no later than 6 May 2021. That said, the Welsh Government is investigating the possibility of delaying the election by a further 6 months.

      IMHO, they have been acting ultra vires since 7 May 2020. Their term of office expired then. While it may not have been possible to hold elections back then, they have no mandate for new legislation after that date and should have remained in office to perform emergency administrative functions only. No doubt the blogsite owners have a better understanding of constitutional law than I do.

  3. Thank you for taking the time to pull all of that information together, it is incredibly helpful. I know the law is slightly different in Scotland, but are there any key differences which are worth noting please?

  4. Excellent – thanks for this. That it is so helpful – indeed, necessary – illustrates the awful complexity through which neither the public nor the police should be expected to navigate.

    A thought as to walking in the Derbyshire hills (or bicycling in the Olympic Park):
    Because of the wording of the regulation 1(1) prohibition “No person… may leave… the place where they are living without reasonable excuse”, and because the regulation 2 list of exceptions is non-exhaustive, a person may well have a reasonable excuse to leave home for the purpose of exercise miles away (contrary to guidance), even if that is not reasonably necessary within 2(2). An obvious example is the person who exercises in a remote spot rather than the busy city locality where he lives – it being eminently reasonable to want to avoid as many people as possible, even if it is not necessary.

  5. This is a most useful blog. I do take issue with your view about exercise and travel. The wording of the regulation is pretty clear that it is the activity for which you have a reasonable excuse that has to be reasonably necessary, and there is no further test of reasonableness beyond that. So if it is reasonably necessary for me to take exercise in order to maintain my health, which it is, and exercise is a reasonable excuse. which it is, there is nothing at all to regulate where geographically that exercise may be taken. If I drive from London to Cumbria just to walk in a park, of course a court may disbelieve that exercise really was the genuine reason for not being at home, but if I am a mountain climber wanting to maintain my fitness my reason would not be in doubt and distance would be irrelevant. “Reasonably local” isn’t a phrase used in the regulations!

  6. Here is an issue that is probably just for amusement but shows that the regulations were not adequately considered. Paul and Mary live together. Mary is a wheelchair user and cannot propel her wheelchair with her arms. Paul pushes Mary on a walk from home to the park. Paul is taking exercise, so has a reasonable excuse. Mary is not able to exercise, so is guilty of an offence of being out of home without reasonable excuse. Paul is charged with assisting an offender. Thoughts ??

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