As the number and rate of new infections in the UK has increased over recent weeks, new statutory measures have come into force to limit the number of people who can participate in gatherings and to limit the opening hours of some businesses. Though the Government did signal in advance what would be contained in the regulations, they were not actually published until the early hours on the days that they came into force (14 and 24 September 2020), save for specific provisions relating to attendance at weddings and funerals which came into force on 28 September 2020. This last minute approach to legislating, without any opportunity for Parliamentary scrutiny, is deeply unsatisfactory. It makes it impossible for businesses to plan in advance with complete confidence as to the legal position.
Here we summarise the main effects of the new measures as they apply in England. We do not set out the position in respect of regions which are subject to additional measures, or the variations applicable to Scotland, Northern Ireland and Wales.
The regulations attempt to strike a balance between protecting public health and doing as little damage as possible to the economy. Most people will understand and sympathise with that objective. That said, some of the reasoning is mystifying. What on earth is meant by allowing gatherings of any number as long as they consist of “qualifying groups”? A qualifying group is any group of six or less. So is it permissible for eighteen work colleagues to meet in groups of six for a social gathering? Maybe, maybe not. Why can one hundred people fill a pub with all the doors and windows closed at any time before 10pm, but eight people cannot meet in a park on a windy day? All we can do is to try to understand the law. Since the government has not subjected itself to Parliamentary scrutiny, it has absolved itself of the need to explain or account for it.
The law is now contained in Regulation 5 of the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 as amended. This provides that people may not participate in gatherings, in any place, in groups of more than six unless they are members of the same household or two linked households. This rule, commonly referred to as the ‘rule of six’, is subject to a number of exceptions. We have highlighted below the ones of most widespread application.
The exceptions to this rule consist of gatherings in the following situations:
- 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;
- For an elite sportsperson, their coach (or where the elite sportsperson is a child, their parent) and where the gathering is necessary for a competition or training;
- Where the gathering is a support group consisting of no more than 15 people and held somewhere other than a private dwelling;
- Where the gathering takes place in criminal justice accommodation;
- To attend a person giving birth at the request of the person giving birth.
Further exceptions to the ‘rule of six’ apply where the gatherings organiser completes a prior risk assessment which satisfies Regulation 3 of the Management of Health and Safety at Work Regulations 1999 and take all reasonable measures to limit the risk of transmission of coronavirus (including observing government guidance):
- Where the gathering is an ‘outdoor sports gathering’ or a ‘permitted indoor sports gathering’ and the person concerned is taking part in that gathering. An ‘outdoor sports gathering’ is defined as being a gathering organised for non-elite sportspersons to take part in a sport or fitness related activity. A ‘permitted indoor sports gathering’ is defined as being a gathering organised to allow people with a disability and who are non-elite sportspersons to take part in any sports or fitness related activity.
- Where the gathering takes places outdoors for the purposes of a ‘relevant outdoor activity’. A ‘relevant outdoor activity’ is defined as being a physical activity which is carried out outdoors and for which a licence or permit must be held by the organiser or participants (other than a driving licence or licence to sell food or alcohol).
- Where the gathering is for the purposes of protest.
Changes which came into effect from Monday 28 September provide that , following a prior risk assessment as outlined above, gatherings are also allowed:
- Of up to fifteen people for a marriage or civil partnership ceremony or reception;
- Of up to thirty people for the purposes of attending a funeral.
There are specific provisions that allow for people to gather in larger numbers as long as the individual groups (‘qualifying groups’) within that gathering are of six people or less, or are members of the same or two linked households, and those groups do not mingle. Any such gathering requires proper organisation and, if taking place in a public outdoor space, the gathering organiser is required to complete a prior risk assessment.
The Regulations explicitly forbid participation in indoor raves of more than six people (as defined in section 63(1) of the Criminal Justice and Public Order Act 1994).
Business Restrictions and Closures
In accordance with the previous amendments to the Regulations on 15 August 2020, the vast majority of businesses are permitted to remain open. However, the new Regulations as amended and effective from 24 September provide that certain businesses are required to operate with limited opening hours.
The new Regulations provide a list of restricted businesses or services in two parts, as follows:
- Businesses preparing food or drink on the premises for consumption off the premises (excluding supermarkets, convenience stores, corner shops, newsagents, pharmacists and chemists, and petrol stations);
- Cafes, including workplace canteens (excluding canteens in care homes, schools and hospitals, canteens in prisons or military facilities, services providing food and drink to the homeless);
- Social clubs;
- Bowling alleys;
- Amusement arcades or other indoor leisure centres or facilities;
- Funfairs (indoors or outdoors), theme parks and adventure parks and activities;
- Bingo halls;
- Concert halls.
The Regulations provide that all of these listed businesses must cease to operate between 10pm and 5am. Businesses can continue to serve food or drink off premises only if this is by delivery in response to an order received online, via telephone or post, to a purchaser who collects the order without leaving their vehicle. Cinemas, theatres and concert halls are allowed to conclude a performance if it began before 10pm. A further exception allows for restricted businesses to operate in motorway services areas unaffected by these restrictions on operating hours. Where the restricted business forms part of a larger business, the restricted aspect of the larger business is required to cease to operate between the hours or 10pm to 5am.
The new Regulations provide for further restrictions on the service of food and drink for consumption on the premises in respect of those businesses listed in Part 1 above. For businesses which serve alcohol for consumption, drinks and food may only be served to customers who are seated on the premises and when all reasonable steps are taken to ensure they remain seated. This ensures that table service is a legal requirement for all orders in bars and pubs where alcohol is served. For businesses which do not serve alcohol but serve food and drink for consumption on the premises, the business must take reasonable steps to ensure that the customers remain seated whilst they consume their food or drink. An area adjacent to the business premises which is used for seating or habitually used by customers of the business for consumption of food and drink served on the premises is treated as being part of the premises. Where the restricted business forms part of a larger business, the restricted aspect of the larger business is required to comply with these restrictions.
Nightclubs, dance halls and sexual entertainment venues are required to remain closed (unless their premises are being used for the purposes of giving blood). Where one of these businesses forms part of a larger business which is permitted to remain open, the larger business may stay open on the proviso that those businesses remain closed. An example of this may be where a bar opens, but the nightclub aspect of their business remains closed.
The Regulations permit a closed business to open a shop, café or restaurant which is separate from the premises of the closed business. This requires the business of the shop, café or restaurant to be carried on from a self-contained unit which the public can enter from a place outside of the premises of the closed business.
Police officers (as well as Community Support officers and individuals designated by the local authority or Secretary of State) are able to give prohibition notices to people running businesses in contravention with these Regulations.
Those in attendance of gatherings which breach the Regulations can be directed to disperse, return home or be removed (if necessary, with force).
An offence under these Regulations is punishable on summary conviction by a fine. If the offence is committed by a body corporate, the relevant person who consented to the actions which resulted in the offence is liable to be prosecuted as well as the body corporate itself.
The latest amendments to the Regulations have doubled the fines applicable such that the fixed penalty notice (‘FPN’) for non-compliance with the Regulations is now a £200 fine. If the fine is paid within 14 days of issue, it is reduced to £100. For every subsequent FPN received, an individual will have to pay double the previous fine (until the value of the fine reaches £6,400 at which point it stops increasing). The number of FPNs someone will be deemed to have received will take into account any FPNs issued under previous coronavirus related regulations.
The FPN for a business’ non-compliance with the restrictions regarding opening hours and service of food and drink on the premises is a fine of £1,000. For each subsequent FPN received in relation to those offences the fine doubles until it reaches a fine of £4,000 on the third offence. The fine then increases to £10,000 for a fourth offence, at which point it stops increasing.
The Health Protection (Coronavirus) (Restrictions on Holding of Gatherings and Amendment) (England) Regulations 2020/907, which came into force on 28 August 2020, provide that the FPN for anyone holding an indoor rave of more than 30 people (as defined in section 63(1) of the Criminal Justice and Public Order Act 1994) is a fine of £10,000. These powers have been used to curb large house parties.
The Regulations in Practice
The new Regulations introduce serious restrictions on individual liberties. Due to the long list of possible exceptions, and despite the accompanying online government guidance and explanatory speech by the Prime Minister, these Regulations are shrouded in a degree of complexity belied by the simplistic ‘rule-of-six’ slogan.
Since the inception of the coronavirus regulations coming into force at the end of March, police officers have cited the discrepancy between advice of senior politicians and the law itself as a source of confusion which has resulted in an inconsistency of enforcement throughout the country and numerous false charges.
Although we are living through a period of emergency, it is important to keep a check on how the police exercise their powers, particularly where there is a diverging understanding of the application of the law. Unprecedented steps are being taken by the UK government under the umbrella of public health concerns; however state authorities must remain accountable, particularly where there is potential for abuse of power risking human rights’ violations.
Should you have any questions about any of the issues covered in this blog, please contact any member of our public law team.
About the authors
Stephen Parkinson is Kingsley Napley's Senior Partner. Stephen is a highly experienced and versatile litigator with extensive experience in advising companies, organisations, and individuals caught up in criminal and regulatory investigations or public inquiries. His previous client list has included numerous individuals at the top of their fields, whether in business or politics.
Charlie Roe is a trainee solicitor currently in the Public Law team. Charlie joined Kingsley Napley in September 2019 as a trainee. Prior to joining Kingsley Napley, Charlie worked at a leading London litigation firm as a paralegal in their Personal Injury and Employment departments.
Charlie read History and Politics at Newcastle University. After working in the charity sector he completed the Graduate Diploma in Law and Legal Practice Course at the University of Law, Moorgate.