[This post has now been superseded by that published on 14 October addressing the three tiered alert system].
The Health Protection (Coronavirus, Restrictions) (No.2) (Amendment)(No 4) Regulations, which came into force on 14 September, change, yet again, the legal framework governing what people in England can and cannot do on a daily basis. They amend The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020, which have been in force since 4 July, and which are referred to in the amending regulations (and here) as “the Principal Regulations.”
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.
The post deals with the position in England generally. There are areas which are subject to their own specific regulations because of the particular impact of COVID-19 there. These change too frequently for me to be able sensibly to be able to update the post to reflect them, but the latest local regulations can always be found here.
Overview of the regulations
The new regulations have the effect (under the amended Regulation 5 of the Principal Regulations) of prohibiting a gathering of more than six people, one household or two households where they are linked households unless a valid exemption applies.
The exemptions to the gatherings limit are set out in Regulation 5(3) of the Principal Regulations.
- For an elite sportsperson, their coach (or where the elite sportsperson is a child, their parent) and the gathering is necessary for a competition or training;
- Where the gathering is reasonably necessary for work purposes; for the provision of voluntary or charitable services; for education or training; to provide childcare or to supervise activities for children; to provide emergency assistance; to enable the avoidance of injury or escape from the risk of harm; to provide care to or assistance to a vulnerable person; to facilitate access to and contact between parents and children where they do not live in the same household;
- To fulfil a legal obligation;
- Where the gathering is a support group;
- For gatherings of up to 30 persons for marriage or civil partnership;
- For gatherings for a significant event.
(This short definition is taken from the Explanatory Memorandum – the actual statutory wording is rather more complex).
Regulation 6 of the Principal Regulations (which remains as it stood before 14 September 2020) 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 (which remains as it stood before 14 September 2020) 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 (as amended with effect from 2 December, only a police constable can use such force)
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); neither of these have been amended by the most recent Regulations)
The Regulations and capacity
As has been the case in every set of Regulations to date, the new September 14 Regulations do not make any provision in relation to those with impaired decision-making capacity. How, therefore, should the Principal 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.