Four Important Changes to the Coronavirus Laws
By Tom Parker
On 1st June 2020 a further set of amendments to The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 entered into force. Below are the key changes you should know about.
1. Leaving home
Up until now, a person had to have a ‘reasonable excuse’ to leave, and remain outside of, their home.
That has now changed. The new requirement under Regulation 6 is that ‘No person may, without reasonable excuse, stay overnight at any place other than the place where they are living.’
‘Overnight’ is not defined in the regulations. Does it mean one must go home as soon as the sun begins to set? Or perhaps before the sun rises again?
And does ‘stay’ simply mean ‘remain’? Or does it imply sleep? If a stargazer climbs atop their favourite hill and stays up all night watching the stars, have they ‘stayed’ at that place overnight? Can a person wait in an airport overnight for their early morning flight?
These are not academic questions. The police will have a difficult time enforcing what is, in effect, a vague national curfew; they will need clarity on when they can and should direct people to go home.
As for ‘reasonable excuse’, Regulation 6 still contains a non-exhaustive list of reasonable excuses, which have been slightly amended. Subparagraph (g) now provides as a reasonable excuse that a person (P) is unable to return home because:
(i) It is not safe for P to live there;
(ii) P may not lawfully travel there, or is required by law to stay in another place, or
(iii) The place where P is living is not available to P for any reason.
This would cover scenarios such as needing to stay elsewhere while a gas leak is fixed. Presumably it would also cover a situation where a person has drunk too much alcohol to drive home and has no alternative transport (a dilemma that should be avoided, to be clear).
The list of reasonable excuses now also allows ‘elite athletes’ and their coach or parent ‘to stay elsewhere for the purposes of training or competition’ (Reg 6(2)(b)). A rather lengthy definition of ‘elite athlete’ can be found in Regulation 1.
Previously, Regulation 7 forbade gatherings of ‘more than two’ people from different households (with exceptions). As noted in previous posts (here and here), there was some ambiguity as to whether two people from separate households could meet. Regulation 7 also did not make a distinction between outdoor and indoor gatherings.
The newly amended Regulation 7 states:
(1) During the emergency period, unless paragraph (2) applies, no person may participate in a gathering which takes place in a public or private place—
(a) outdoors, and consists of more than six persons, or
(b) indoors, and consists of two or more persons.
The list of exceptions under paragraph 2 remain largely the same, with the addition of exemptions for education and elite athletes.
As to the meaning of these terms:
- A ’gathering’ is defined as ‘when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other’ (Reg 7(3)(a)).
- ‘Indoors’ means any place that is ‘enclosed or substantially enclosed’ (‘substantially enclosed’ is defined in these separate smoking regulations).
- It is clear from government guidance that ‘outdoors’ includes private outdoor spaces, such as a garden.
Note that nowhere in any of these regulations is there a requirement to social distance: this remains central to the government guidance, but not legally enforceable.
The upshot is that you cannot visit your mother for a cup of tea in her living room, nor can you visit your secret lover. But you can have five friends, all from different households, in your back garden. Government guidance confirms that those visitors can walk through your house and use your toilet (just make sure it’s one at a time!).
An interesting question that is bound to arise is whether a specific exemption should be carved out for protests. The right to assemble clashes directly with the bright line prohibition on gatherings of more than six; a more balanced approach seems necessary.
3. Businesses and premises reopening
While indoor gyms and sports facilities remain closed, a specific exemption is now provided for elite athletes to use such facilities (Reg 4(5)(c)).
Outdoor markets and car showrooms have been placed on the list of businesses that can open, as have outdoor sports amenities, such as golf courses and stables (Schedule 2, Part 3).
However, it is bad news for those hoping to visit model villages, which have been added to the list of businesses that must remain closed (Schedule 2, Part 2). Other additions to the closure list are:
- Social clubs
- Aquariums and zoos, including safari parks
- Visitor attractions at farms
- Indoor attractions at visitor attractions, such as heritage sights or landmarks.
4. Extension of the review period
One change that appears to have snuck in relatively unnoticed is an amendment to the review period.
Previously, Regulation 3(2) required that the restrictions must be reviewed ‘at least once every 21 days’. That has now been amended to 28 days.
The use of emergency regulations to bypass Parliamentary scrutiny was initially justified on the grounds that the lockdown needed to be implemented as a matter of urgency. With each new round of amendments, that justification becomes increasingly dubious.
Extending the review period to 28 days seems to be an implicit acknowledgment of this fading urgency. If so, it is surely time to involve Parliament in the passage and scrutiny of these laws.
Tom Parker is the current 36 Crime pupil, now in his ’second six’ and able to accept instructions. Tom’s pupil supervisor during his first six was Nadia Silver, with whom he gained experience in serious and complex crime and regulatory law. Before joining Chambers, Tom worked as a consultant on a criminal justice reform project in Somaliland. He has also interned at the Special Tribunal for Lebanon and worked with human rights NGOs in Kenya.
For further information about the 36 Emergency Powers Group, please click here.