We’ll all be taking steps – the lockdown regulations from 29 March (updated with effect from 19 July)

[Most legal restrictions in England are removed with effect from 19 July 2021. See here for the current picture.]

From 29 March 2021, the lockdown regulations in England have been replaced with a new framework, designed to give legal effect to the Government’s roadmap.

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) revoked and replaced 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 lasted from 29 March to 11 April, and Step 2 until 17 May. It is hoped by the Government that Step 4 – essentially the lifting of all restrictions – will take place on 21 June.

Step 3 – 17 May onwards 

Gathering restrictions

Six people or two households may gather indoors (subject to review) and gatherings of up to 30 people will be permitted outside.

Events

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.

Travel

There are now no restrictions in law from leaving the UK. Restrictions are in place on entry into England. All forms of holiday accommodation including hotels, B&Bs and hostels are now able to 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).

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.

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