The Health Protection (Coronavirus, Restrictions) (No.2) (England) Regulations, which came into force on 4 July, change, yet again, the legal framework governing what people in England can and cannot do on a daily basis.
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 look at previous restrictions may want to look at this post.. Those who want to understand the powers of public health officers under the Coronavirus Act 2020 will want to look at this post.
The positions in Northern Ireland, Scotland 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.
Overview of the regulations
The new regulations revoke the old Restriction Regulations in their entirety (except for offences that were committed under them), and we start again. Those in England (with the exception of those in Leicester, who retain their own, individualised, lockdown regulations) are no longer, for instance, barred from staying overnight in a place other than where they are living without reasonable excuse.
During the emergency period, Regulation 4 and Schedule 2 maintains the requirement on those carrying on (a much smaller number than before) of businesses/services not to do so.
During the emergency period, and subject to a number of exceptions, Regulation 5 means that nobody may participate in a gathering of more than 30 people in a private dwelling, a private vessel, or a public outdoor place (which is not a visitor attraction or part of a business or other equivalent premises).
Put another way:
- it is entirely lawful now for up to 30 people to gather in a private home (unless they are gathering inside for a rave (i.e. technically, it would be a gathering of a kind mentioned in section 63(1) of the Criminal Justice and Public Order Act 1994 if it took place on land in the open air). It is important to note that whatever the guidance may say, the law does not say that the 30 people must all be from be from the same household or within a ‘support bubble’.
- It is also lawful to stay in a hotel, hotel, hostel, campsite, caravan park, members club, boarding house or bed and breakfast accommodation even if there are more than 30 people there.
- It is lawful to go (in groups of any size) to outdoor visitor attractions or a public outdoor place which is part of a business or equivalent premises.
The exceptions to the restriction on gatherings of more than 30 people are set out in Regulation 5(3), and include:
- Events on private vessels/in public outdoor spaces organised by a business, charitable, benevolent or philanthropic institution, a public body or political body, where the organiser in question has taken all reasonable measures to limit the risk of the transmission of coronavirus;
- In relation to elite sports events and training;
- Where the gathering is reasonably necessary for work purposes, the provision of voluntary or charitable services, for the purposes of education or training, for the purposes of registered childcare provided by a person registered under Part 3 of the Childcare Act 2006, or as part of supervised activities provided for children; to provide emergency assistance; to enable one or more persons in the gathering to avoid injury or illness or to escape a risk of harm; or
- To enable the person concerned to fulfil a legal obligation.
Regulation 6 gives the power to the Secretary of State to restrict access to a specific public outdoor place or places, either entirely or at specified times. The Secretary of State can do so by direction if giving such a direction (a) responds to a serious and imminent threat to public health; (b) is necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England of the coronavirus; and (c) the restrictions are a proportionate means of achieving that purpose. The Regulation sets out a (non-exhaustive) list of reasonable excuses for entering or remaining in the restricted area.
Regulation 7 provides enforcement powers, of which perhaps the most relevant for present purposes are the power for a relevant person (a constable, a Police Community Support Officer, or a designated person):
- To remove a person from a gathering that contravenes Regulation 5
- To remove a person from a restricted area;
- To use reasonable force to remove the person from the gathering/restricted area
The relevant person can only exercise removal powers if they consider that this is a necessary and proportionate way of ensuring compliance with the relevant restriction.
Regulation 8 provides for criminal offences (with the potential under Regulation 9 for Fixed Penalty Notices to be issued instead).
The Regulations and capacity
As with the previous regulations, these Regulations do not make any provision in relation to those with impaired decision-making capacity. How, therefore, should the Regulations apply to someone who lacks the capacity (applying the MCA 2005, or any common law test that might be said to apply) to understand: (1) that they cannot be to be at an indoor or outdoor gathering with more than 30 people; (2) to be in a restricted area or (3) the consequences of so doing? And should they be subject to criminal sanction if they do so?
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 the previous 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 person removing someone with impaired decision-making capacity either from a gathering is supposed then to do with them if they have used reasonable force to d 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 or just outside the restricted area?
Furthermore, and whilst the new regime is very much less draconian than the ones that have proceeded it, those with impaired decision-making capacity and those supporting them will still have to navigate the complexities of what guidance is suggesting that they do as regards social distancing, and also obey the face-covering Regulations discussed here.