December to February Lockdown regulations – now superseded

[This post has now been superseded by this one, to take account of the new national lockdown from 6 January 2021].

With effect from 20 December to 2 February 2021, restrictions within England are set at one of four levels, by operation of The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020.  At least on their face, the regulations no longer speak of medium, high and very high areas, but simply of Tier 1, Tier 2, Tier 3 and 4.

This post addresses the current restrictions in England through the prism of the law relating to those with impaired decision-making capacity.   Those who want to understand the powers of public health officers under the Coronavirus Act 2020 will want to look at this post; to understand the self-isolation regulations, see this post.

The positions in Northern IrelandScotland and Wales are now sufficiently different to the position in England that this post does not attempt (with apologies for Anglo-centricity) to address the position in each of these three jurisdictions, but the links above take you to what is, or should, be the current version of each of the regulations.

To find out which level of restriction you are in England, you can enter your postcode here.

The Regulations are accompanied by a detailed Explanatory Memorandum setting out the policy background; the Government published on 30 November its analysis of the health, economic and social effects of COVID-19 and the approach to tiering, so as to try to explain in greater detail the balances that it is seeking to strike.  A further Explanatory Memorandum was published to accompany the changes on 20 December introducing Tier4 and in relation to the Christmas Truce.

Tier 1 

These restrictions provide for the “rule of 6” – i.e. that no-one can gather together in a group of more than 6, and set out other restrictions (in Schedule 1) on gatherings, as well as exceptions to the Rule (in paragraph 3 of Schedule 1).

The exceptions from the rule of six include allowing a household with only one adult in the home (known as a single-adult household) and one other household of any size to link together to form a support bubble.  A gathering that is only made up of people from the same support bubble is not subject to the limits which apply.

Tier 2 

Schedule 2 sets out restrictions in Tier 2 areas, which include the restrictions from Tier 1 , requiring people to adhere to the rule of six in both, and also requiring that:

  • All meetings in outdoor public spaces, outdoor Covid-secure retail and hospitality, and outdoor private dwellings (gardens) are limited to 6 people;
  • All meetings in indoor Covid-secure retail and hospitality, and indoor private dwellings (homes) that are within a Tier 2 level must be limited to one household (unless exemptions apply);
  •  A person living in a Tier 2 level must limit their meetings indoor Covid-secure retail and hospitality, and indoor private dwellings (homes) to one household (unless exemptions apply).

The exceptions from the rule of six include allowing a household with only one adult in the home (known as a single-adult household) and one other household of any size to link together to form a support bubble.  A gathering that is only made up of people from the same support bubble is not subject to the limits which apply.

The exceptions in relation to indoor gatherings in Schedule 2 make clear that (Exception 2 in paragraph 5 of Schedule 2) these are lawful for purposes of visiting “a person (“V”) receiving treatment in a hospital or staying in a hospice or care home, or to accompany V to a medical appointment,” where the person visiting is (a) a member of V’s household; (b)  a close family member of V; or (c) a friend of V.   It is also important to note that the exceptions do not limit the position by reference to such wording as “exceptional circumstances,” or to the person being visited being close to death (indeed, there are specific additional provisions making it lawful to gather to visit a dying person (Exception 1 under paragraph 5 of Schedule 2).

Tier 3 

Schedule 3 sets out the restrictions applying to Tier 3 places.   They provide that

  • Meetings in indoor venues and private gardens within the area must be limited to a single household (unless exemptions apply).
  • Meetings in outdoor venues must be limited to a single household (with certain exemptions) unless these settings meet certain conditions, where they can continue in groups of up to 6.

The exceptions in relation to indoor gatherings in Schedule 3 make clear (Exception 2 in paragraph 5 of Schedule 3) that these are lawful for purposes of visiting “a person (“V”) receiving treatment in a hospital or staying in a hospice or care home, or to accompany V to a medical appointment,” where the person visiting is (a) a member of V’s household; (b)  a close family member of V; or (c) a friend of V.   It is also important to note that the exceptions do not limit the position by reference to such wording as “exceptional circumstances,” or to the person being visited being close to death (indeed, there are specific additional provisions making it lawful to gather to visit a dying person (Exception 1 under paragraph 5 of Schedule 3).

Tier 4

The most stringent restrictions apply in Tier 4, and are set out in Schedule 3A.  These are essentially the same as applied in November, and are based upon a restriction upon people leaving or being outside the place where they are living without reasonable excuse (Paragraph 1 of Schedule 3A).   What constitutes a “reasonable excuse” for leaving or being outside the place where they are living is set out in Paragraph 2(4), including to take exercise or visit a public open place for the purposes of open air recreation (there is no restriction to once a day).  Paragraph 2also includes under Exception 4 (“medical need etc”): a range of important exceptions, including “to visit a person (“V”) receiving treatment in a hospital or staying in a hospice or care home, or to accompany V to a medical appointment,” where the person visiting is (a) a member of V’s household; (b)  a close family member of V; or (c) a friend of V.  The exceptions to gatherings (set out below) mirror this (in Paragraph 7(3).  In other words, and whilst the updating visiting guidance for care homes does not provide for indoor visits except in exceptional circumstances, it is clear that such indoor visiting is lawful.  It is also important to note that the exceptions do not limit the position by reference to such wording as “exceptional circumstances,” or to the person being visited being close to death (indeed, there are specific additional provisions making it lawful to leave home and gather to visit a dying person (Paragraph 2(9) and 7(2)).

The Regulations also prohibit gatherings, subject to exceptions.  A “gathering” for these purposes constitutes a situation – either inside or outside – 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” (Paragraph 3).   Paragraph 3(1) prohibits gatherings indoors (including a gathering involving a person living in a Tier 4 area which takes place out of that area).  Paragraph 4 prohibits gatherings outdoors  (although not of two people in a public outdoor space); it also prohibits a person living in a Tier 4 participating in a gathering out of that area of two or more people.

Importantly in relation to outdoor gatherings, and a difference to the approach previously, Paragraph 2(3) discounts the presence of a “carer for a person with a disability who needs continuous care, provided that there are no more than two people present in that capacity.”

Linking households

The regulations also continue the ability to provide for the ‘linking’ of two households where one comprises one adult or one adult and one or more people who were under the age of 18 on 12 June 2020 (when the first lockdown ended) (Regulation 12), and also continue the ability to create linked childcare households to enable informal childcare in relation to children under 13 (Regulation 13).

There are statutory steps which can be taken to enforce both the requirement not to leave home and not to gather, including;

  • the power for a relevant person[3]  to direct the person to return the place to where they are living  (Regulation 19(3) (unlike in the first lockdown there is no power to use reasonable force to enforce this direction).
  • the power to to bring about dispersal of gatherings. The ‘relevant person’ can remove any person in that gathering by the use of reasonable force (Regulation 19(6)).

Bubbles

These regulations further extend the concept of support bubbles, most relevantly for these purposes including that the first household in the bubble can now include a household household containing one or more persons who have a disability and who require continuous care on their own or together with either (a) one individual who does not have a disability; or (b) more than one such individual (but including no more than one adult who was 18 or over on 2 December 2020).  That household can form a supportive link with another household (and there is no restriction on the size of the second household).  Having formed this link, a household can only form another such link with another household if the link ceases (either through choice or because the first household no longer qualifies) and at least 14 days after any member of a household last gathered with a member of the household to which they were previously linked in reliance of the fact they were in a ‘support bubble’.

The Christmas truce 

Regulation 4 sets out how a ‘linked Christmas household’ can be formed for the purpose of gathering during the Christmas period.  However, the truce dramatically changed on 20 December.  The period during which it is permitted to form a Christmas bubble of up to three households is reduced to the 25 December only.  Those people in Tier 4 are not permitted to form a Christmas bubble.

For those who are allowed to form a Christmas bubble, Regulation 4 provides that a household may be linked with up to two other households if: all the adult members who would be linked agree; and where a member who would be so linked is a child, a person with parental responsibility for the child (who is a member of the child’s household) also agrees. Except children who do not live in the same household as their parent(s) (and can therefore be a member of the linked Christmas household formed by each parent), people cannot form more than one linked Christmas household. Provision is made to allow anyone who has parental responsibility for such children to provide the necessary agreement for them to form a linked Christmas household, not just the parent whose household the child lives in.

Review and expiry 

Regulation 14 provides that the Secretary of State must review whether each area under Tier 2 or 3 restrictions should remain in that Tier at least once every 14 days, with the first review to be carried out by 16 December 2020. In addition, the Secretary of State must review the need for the restrictions within each Tier at least once every 28 days with the first review to be carried out by 30 December 2020.  The changes brought in on 20 December will also first reviewed on 30 December.

These regulations will cease to have effect on 2 February 2021 by Regulation 15, although I anticipate that unless things have changed dramatically a further set of Regulations is very likely to have been put before Parliament before then to come into force after then, or these Regulations will be continued).

Enforcement 

Regulation 9 sets out enforcement powers, of which perhaps the most relevant for present purposes are the power for a constable to remove a person from a prohibited gathering, and to use reasonable force for the purpose.   The constable can only exercise removal powers if they consider that this is a necessary and proportionate way of ensuring compliance with the relevant restriction.  [Note that these regulations limit the power to use reasonable force to constables alone from a wider pool of people in the earlier iterations].

Regulation 10 provides for criminal offences (with the potential under Regulation 11 for Fixed Penalty Notices to be issued instead).  The fine increases with each offence.

The Regulations and capacity

As has been the case in every set of Regulations to date, none of the Regulations make any provision in relation to those with impaired decision-making capacity.  How, therefore, should they apply to someone who lacks the capacity (applying the MCA 2005, or any common law test that might be said to apply) to understand that they are required to comply with any of the relevant restrictions? And should they be subject to criminal sanction if they do not?

One would like to think that it would be very unlikely that any prosecution would be brought against a person who did not – because they could not – understand what it is that they should or should not have been doing. It would certainly be very troubling were it to be, and it is also troubling that the CPS guidance does not address this in terms (although a Law Society blog, indirectly, assists in setting out the position of the CPS in relation to one of the earlier sets of Regulations).   But it is perhaps troubling that it would even be possible for a criminal prosecution to be in contemplation in such circumstances.

It is also not clear what a constable removing someone with impaired decision-making capacity from a gathering is supposed then to do with them if they have used reasonable force to do so.  Can they use that power to return the person to where they live, or are they simply supposed to stop using the power when the person is now not a part of the gathering?

In addition, those with impaired decision-making capacity and those supporting them will have to navigate the complexities of the self-isolation regulations (discussed here), and obey the face-covering Regulations discussed here.

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