From 29 March 2021, the lockdown regulations in England are being replaced with a new framework, designed to give legal effect to the Government’s roadmap. The Government has provided indicative dates for the earliest each step could be implemented. However, if a step is delayed, the timing of subsequent Steps will need to be recalibrated in order to maintain the necessary five-week period to assess the impact of each step and provide notice of changes.
Step 1 began on 8 March by an amendment to the All Tiers Regulations which reintroduced wraparound childcare, introduced a ‘declaration of travel’ form for anyone leaving the UK, and permitted outdoor recreation within households or with one other person.
The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (SI 2021/364) will revoke and replace the previous lockdown regulations with a legislative framework to apply the rest of the Step 1 restrictions from 29 March 2021 and set out Steps 2 and 3 of the Roadmap out of lockdown (Step 4 – the potential lifting of most remaining restrictions, is as yet a twinkle in the legislator’s eye).
The Explanatory Memorandum provides a helpful summary of where things are going as a matter of law (always carefully to be distinguished from guidance). This post is largely based upon that Memorandum, but also at the end addresses specific points of relevance to those with impaired decision-making capacity.
Step 1 – 29 March 2021
‘Stay at home’
The Steps regulation will revoke the ‘stay at home’ provision, meaning that it is not necessary to have a reasonable excuse to be out of the place where you live (although, as below, you will need a reasonable excuse to leave the United Kingdom).
Persons are able to meet outside, including in private gardens, in groups up to a maximum of 6 people or with one other household. No indoor mixing between households is permitted unless an exemption applies.
Business and activities
Outdoor sports and leisure facilities can re-open and formally organised outdoor sports can also restart. Additionally, outdoor parent and child groups are permitted with up to 15 attendees. Under-5s do not count towards the gathering limit.
Funerals with up to 30 attendees and weddings with up to 6 attendees are permitted.
In a new provision, stay in the UK provisions prohibit travel abroad from the UK unless an individual has a legally permitted reason for doing so. In addition, individuals are required to fill out an international declaration of travel form indicating their reason for travelling abroad.
Step 2 – not before 12 April
Social contact rules in England will remain the same as in Step 1.
Funerals with up to 30 attendees and wakes, weddings and wedding receptions with up to 15 attendees are permitted. Events pilots can also begin.
Businesses and activities
Indoor leisure (including gyms) is permitted to re-open open for use individually or within household groups, alongside libraries, community centres, personal care businesses, all retail, all children’s activities and indoor parent and child groups with up to 15 attendees.
Outdoor hospitality will re-open with a requirement to order, eat and drink while seated. Additionally, outdoor attractions may re-open, including zoos, theme parks, drive-in cinemas and drive-in performances events.
Self-contained accommodation – those that do not require shared use of bathing, entry/exit, catering or sleeping facilities – may open for household groups. Campsites and caravan parks may also open (there is an exemption from the closure of shared bathing facilities for campsites and caravan parks).
Stay in the UK provisions remain but domestic overnight stays are permitted for household groups.
To facilitate the local elections on 6 May 2021, voting will be permitted and observers to the electoral process are also permitted to observe polls.
Step 3 – not before 17 May
Six people or two households may gather indoors (subject to review) and gatherings of up to 30 people will be permitted outside.
Most significant life events, including bar mitzvahs and christenings, are permitted with up to 30 attendees and some large indoor and outdoor events will be permitted, subject to capacity limits. Pilots will continue.
Businesses and activities
All remaining outdoor entertainment (including performances) such as outdoor theatres and cinemas may re-open. Indoor entertainment and attractions such as museums, cinemas and children’s play areas may also open. Additionally, adult indoor group sports and exercise classes are permitted and indoor hospitality may re-open with the requirement to order, eat and drink while seated.
Remaining holiday accommodation including hotels, B&Bs and hostels may re-open.
Specific issues of relevance in the context of mental capacity
Whatever the relevant guidance says, these new regulations continue to make it clear that visiting a person in a care home or hospital is lawful (see Regulation 5(2) of Schedule 1 for Step 1 and Regulation 5(2) of Schedule 2 for Step 2).
As with previous sets of lockdown regulations, the concept of impaired decision-making capacity barely features. Indeed, it only features once, in Regulation 8, relating to travel declaration forms, which provides that the form needs to be completed by “a person having responsibility” for a person who lacks capacity to complete the form. There is no statutory definition of what it means to have responsibility for a person lacking capacity to complete a form, but it is suggested that this must be broader than a person with powers under a (welfare) LPA or (welfare) deputyship.
In relation to the numerous offences that continue to be kept on the statute books by the new regulations, 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 continue to navigate the complexities of the self-isolation regulations (discussed here), and obey the face-covering Regulations discussed here.