Face coverings and shops (etc) in England

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 require, by Regulation 3(1), most people aged 11 and above to wear a face covering in England “whilst entering or remaining within a relevant place.”  They are the counterpart to the Regulations governing face coverings on public transport which I summarise here;  and, as a reminder, do not apply in Wales, Scotland or Northern Ireland, all of which have different approaches.  The summary here is designed, in particular, for those working with individuals with impaired decision-making capacity.

What constitutes a “relevant place” includes – broadly – include shops, transport hubs, restaurants, bars, pubs, theatres and (following amendments by The Health Protection (Coronavirus) (Wearing of Face Coverings in a Relevant Place and Restrictions: All Tiers) (England) (Amendment) Regulations 2021) polling stations.

Regulation 3(1) requires a person to wear a face covering, unless they have a “reasonable excuse”. Regulation 3(2) sets out the categories of people to whom the requirement to wear a face covering does not apply even when they are in a “relevant place.”

Regulation 4 provides a non-exhaustive list of what may constitute a “reasonable excuse” pursuant to Regulation 3(1).  They are – understandably – similar to those which apply in relation to the requirement to wear a face covering on public transport.  For present purposes most relevant are:

  • That the person cannot put on, wear or remove a face covering—
    • because of any physical or mental illness or impairment, or disability (within the meaning of s. 6 Equality Act 2010), or
    • without severe distress;
  • The person is accompanying, or providing assistance to, another person and that other person relies on lip reading to communicate with them;
  • They have to remove their face covering to take medication.

The main difference to the list of reasonable excuses which applies to public transport is that there is no reasonable excuse to remove a face covering to eat or drink when in the relevant place – as above, either you are taking food away to eat (in which wear a mask and do not – presumably – eat it there, or you are sitting down to eat in a designated seating area in a cafe etc).

A (non-statutory) exemption card can be printed out or downloaded for a mobile phone from the Gov.uk website here.

By Regulation 5(1), a relevant person can deny entry to a person not wearing a face covering.  “A relevant person,” for these purposes, does not include a member of staff at the shop etc (unless they have been designated a relevant person by the Secretary of State) – in other words, the Regulations are not aimed at giving power to shop staff to deny entry where someone is not wearing a face covering.  The relevant person can direct a person either to wear a face covering or leave.  A constable can remove the person from the place, using reasonable force if necessary, if they fail to comply with a direction to leave.

Failure to wear a face mask absent reasonable excuse is an offence, punishable by a fine, which increases with each offence (the amount being increased with effect from 24 September).

The Explanatory Memorandum gives rather more policy background than might usually be expected for a statutory instrument, and also – rather unusually – guidance as how the DHSC anticipates that the Regulations will be deployed:

As with the wider coronavirus restrictions, a relevant or an authorised person is expected to use their discretion and judgement when considering reasonable excuses and exemptions in the circumstances. Nobody who has a reasonable excuse as set out in regulation 4 and is therefore not wearing a face covering should be prevented from visiting a shop or supermarket or other setting covered by these Regulations. Further information on this is available in the relevant Guidance published on GOV.UK. [At the time of writing, 24 July, the guidance appears to be this, but more is promised]

These Regulations do not address expressly the position of those with impaired decision-making capacity.  The DHSC notes in the Explanatory Memorandum that it has:

considered the fact that some people may be deterred from visiting the relevant settings where these Regulations apply due to them being required to wear a face covering either because they cannot source a suitable face covering or they have protected characteristics (e.g. a disability) which makes it difficult to wear a face covering. The definition of face covering used is broad and includes any covering that covers the mouth and nose. As such, the Department considers that it will not be prohibitively costly or difficult for people to obtain a suitable face covering. The Department has also included a range of exemptions to ensure that this policy does not unfairly discriminate against those with protected characteristics. Furthermore, the policy will be supported by a communications campaign that will make clear that some people are exempt from these regulations and people should be challenged by members of the public for not wearing a face covering. [the last sentence presumably contains a missing ‘not’ before challenged’]

Whilst it is clear that the wording of ‘reasonable excuse’ for purposes of Regulation 4 is not – importantly – limited to the position where it is a physical disability which prevents either putting on or wearing a mask, the concept of a reasonable excuse being ‘severe distress’ raises difficult questions about how this is to be flagged by the relevant person (or those supporting them) without this, itself, causing the individual themselves distress.  It is unsurprising that the Explanatory Memorandum indicates that the Government expects people to use discretion and judgement, but they will be asked to make some difficult and sensitive decisions.

It seems to me that following the approach set down in our guidance note as to testing that in very many cases, it will be in the best interests of an individual with impaired decision-making to be supported to wear a mask, not just for the public health reasons outlined in the Explanatory Memorandum, but also if, as expected, mask-wearing becomes the norm, those not wearing them visibly stand out, and could in consequence attract negative attention.  However, there will remain difficult situations, and having the threat of criminal sanction hanging over both the individual and – potentially – a person supporting them (Regulation 6(2) making it an offence for a person to obstruct, without reasonable excuse, any person carrying out a function under these Regulations) reminds us that the easing of lockdown will continue to pose challenges for those working with individuals with impaired decision-making capacity.

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