The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (SI 2020/327) (“the Regulations”) were made at 2pm today, 21 March 2020, under the Public Health (Control of Disease) Act 1984 and come into force immediately. In a sign of the exceptionality of the situation, the Regulations have yet to be laid before Parliament (as permitted by s.45R of the Act): that will happen on Monday.
The Regulations are the means by which the Government gives effect (in England - see below for Wales) to the Prime Minister’s statement in a press conference yesterday 20 March 2020 that “We are collectively telling cafes, pubs, bars and restaurants to close tonight as soon as they reasonably can, and not to open tomorrow.”
The Regulations apply from the day they come into force until a termination direction is given under regulation 2(7)-(8). A termination direction may only relate to some categories of the businesses affected.
The Regulations expire completely at the end of 6 months after they come into force, although this expiry by the effluxion of time does not affect the validity of anything done before then.
Regulations have two categories of premises set out a schedule.
Part 1 Businesses
Part 1 consists of what might be described as (but is not defined as licensed trade), so:
1. Restaurants, including restaurants and dining rooms in hotels or members clubs.
2. Cafes, including workplace canteens, but not including—
(a) cafes or canteens at a hospital, care home or school;
(b) canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence;
(c) services providing food or drink to the homeless.
3. Bars, including bars in hotels or members’ clubs.
4. Public houses.
The Regulation uses plain English labels rather than references to licences held or planning use classes.
The exclusion of providing services providing food or drink to the homeless is perhaps unnecessary given that the Regulations apply to "businesses". It is not clear what the Secretary of State's intention is for services providing food or drink to those who are not homeless but who are vulnerable and are provided food and drink - my interpretation would be that as these are not businesses, they are not covered.
There is no exception for airports.
It is not clear what the position is for buffets on trains (arguably they are not restaurants, cafes or bars).
By regulation 2(1), a person who is responsible for carrying on a business listed in Part 1 of the Schedule must:
(a) during the relevant period—
(i) close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and
(ii) cease selling food or drink for consumption on its premises; or
(b) if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises during the relevant period.
Given the speed with which the Regulations have been drafted and made, it would be unsurprising (but completely understandable) if there were not some oddities.
So, Regulation 2(1)(a) requires the person responsible for carrying on a Part 1 business (so a public house for instance) to close premises in which food and drink are sold for consumption on the premises (so, a pub for instance) to be closed, but also not just to close them but to “cease selling food or drink for consumption on its premises”. The obvious point is that if the premises are closed it would not be possible to sell food or drink for consumption on the premises: perhaps this is deliberate belt and braces drafting. There may be possible consequences for insurance purposes.
Regulation 2(1)(a) does not apply “if the business sells food or drink for consumption of the premises”. If that happens, then the business’s only (legal) obligation is to “cease selling food and drink for consumption on its premises”. There is no requirement for such a premises to close.
There may be a scenario where a premises like a pub effectively decides trades as a takeaway.
What is perhaps worrying (from a public health standpoint) is that there is no requirement for such a premises to deny access to the public, with the possibility of people inside the premises ordering food and drink to remove, but in unacceptably close proximity to each other, or even using the interior of the premises as a social club. Hopefully common-sense and responsibility will come into play.
It is not possible for a public house to trade on off-sales only and use its beer garden for patrons to consume alcohol, because Regulation 2(3) makes beer gardens and the like part of the premises.
Hotel room service is excluded from closure: Regulation 2(2).
There is again some (understandably) inconsistent drafting in the Regulation relating to hybrid businesses. Regulation 2(5) provides:
If a business listed in the Schedule (“business A”) forms part of a larger business (“business B”), the person responsible for carrying on business B complies with the requirement in paragraph (1) if it closes down business A.
The inconsistency here is that Regulation 2(1) provides for the closure of premises, not businesses (as must be right - closure of a business implies winding up). I imagine that Regulation 2(5) will be interpreted purposively by reading “closes down business A” as “closes down the premises to which business A relates”.
Part 2 Businesses
A person responsible for carrying on a business which is listed in Part 2 of the Schedule must cease to carry on that business during the relevant period: Regulation 2(4).
There are 11 categories of Part 2 Premises, all within the leisure sector, namely:
8. Bingo halls.
9. Concert halls.
10. Museums and galleries.
12. Betting shops.
14. Massage parlours.
15. Indoor skating rinks.
16. Indoor fitness studios, gyms, swimming pools or other indoor leisure centres.
The wording of the schedule reflects the speed with which it has been drafted. Again, simple English rather than technical definition is deployed. This is, surely, the first occurrence of the phrase “Massage Parlours” in any statutory instrument.
“Cease to carry on … business ” is very wide: a more narrow (but equally effective) option would have been to close - to the public - the premises on which the businesses were carried on. This narrower option might permit some, safe, economic activity to be conducted within the such premises (for instance, a livestreamed bingo session or concert). There may be insurance implications to a cessation order, and I am seeing I can provide more informed views on this shortly.
Regulation 2(5) relating to hybrid businesses relates to Part 2 businesses in the same way as it does to Part 1.
Regulation 4 provides that a person designated by the Secretary of State may take such action as is necessary to enforce a closure or restriction imposed by Regulation 2.
A person who without reasonable excuse contravenes regulation 2 commits an offence, as does a person who obstructs, without reasonable excuse, any person carrying out a function under the Regulations.
Proceedings are summary and the penalty is an (unlimited) fine. They may be brought by any person designated by the Secretary of State.
The Regulations were made under ss.45C(1), (3)(c), (4)(d), 45F(2) and 45P of the Act, all of which were inserted by the Adult and Social Care Act 2008.
S.45C provides, inter alia:
(1) The appropriate Minister may by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere).
(3) Regulations under subsection (1) may in particular include provision:
(c) imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health.
(4) The restrictions or requirements mentioned in subsection (3)(c) include in particular–
(d) a special restriction or requirement.
(2) Health protection regulations may–
(a) confer functions on local authorities and other persons;
(b) create offences;
(c) enable a court to order a person convicted of any such offence to take or pay for remedial action in appropriate circumstances;
(d) provide for the execution and enforcement of restrictions and requirements imposed by or under the regulations;
(e) provide for appeals from and reviews of decisions taken under the regulations;
(f) permit or prohibit the levy of charges;
(g) permit or require the payment of incentive payments, compensation and expenses;
(h) provide for the resolution of disputes.
The Act makes no express provision to cessation of businesses - perhaps the obligation to do so under the Regulations can be said to fall under a restriction or requirement on a person.
In Wales, The Health Protection (Coronavirus, Business Closure) (Wales) Regulations 2020 (2020 No. 326 (W. 74)) makes equivalent provision.
This is a fast moving situation, with a great public will to combat the spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The textbook has, to a significant extent, been ripped up. The Regulations will undoubtedly be effective in keeping the public out of the premises where the public-facing business of the businesses listed in the Schedule are conducted. I suspect its real test may come in the course of subsequent prosecutions and insurance-related claims. Of course, that would be but for the world in which we now find ourselves, where the surreal has become real; it is of course vital for the rule of law and civil society that all actors in the system should proceed on the basis that these restrictions will be temporary and tempered by natural justice.
Finally, I should record my thanks and appreciation to my colleagues at Francis Taylor Building, Gary Grant - for taking the initiative to set up a WhatsApp group for licensors dealing with this fast-moving situation - and Conor Fegan - for identifying the regulation, as well as all members of that group and the wider world of legal professionals and local authority officers who are all working co-operatively to achieve the common goal of controlling the spread of this virus. Both Francis Taylor Building and my Newcastle Chambers, Trinity Chambers are taking active steps to move all resources online so that continuity of service can be provided to our local authority, regulatory and trade clients during this time of unprecedented challenge.