Business Closure and the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force at 13.00 today.
This the law behind the “lockdown” announced by the Prime Minister on 24 March 2020 - essentially until now the lockdown has had no legal effect.
As I predicted, the Regulations are made not under the new Coronavirus Act 2020 but instead under the existing powers under s.45C of the Public Health (Control of Disease) Act 1984.
The Regulations have been made under the emergency procedure under s.45P without the need for Parliamentary approval.
They revoke and replace The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (“the first Regulations”) which closed down restaurants, cafes, pubs and other leisure venues on 21 March 2020 and about which I have previously written.
The Regulations refer to an “emergency period” which starts when the Regulations come into force and ends when directed by the Secretary of State. Reviews must be conducted at least once every 21 days.
As soon as the Secretary of State considers that any restrictions or requirements set out in these Regulations are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England with the coronavirus, the Secretary of State must publish a direction terminating that restriction or requirement: regulation 4(1).
In this first article I shall look only at business closures. The Regulations also place severe restrictions on movement and gatherings - I shall return to this in a later article.
Business closures are now dealt with in regulation 4. Essentially the provisions of the first Regulations are repeated but expanded upon in terms of scope.
Part 1 premises
Part 1 premises (now Part 1 of Schedule 2) are similar to before - restaurants, cafes, bars and public houses. The previous exception for workplace canteens has however been narrowed.
The list now is:
1. Restaurants, including restaurants and dining rooms in hotels or members’ clubs.
(1) Cafes, including workplace canteens (subject to sub-paragraph (2)), 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.
(2) Workplace canteens may remain open where there is no practical alternative for staff at that workplace to obtain food.
3. Bars, including bars in hotels or members’ clubs.
4. Public houses.
The regulatory format is as it was in the first Regulations.
By regulation 4(1), a person who is responsible for carrying on a business listed in Part 1 of the Schedule must:
(a) during the emergency 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.
The Regulations repeat some of the oddities found in the first Regulations. Given the pace at which the Government lawyers have had to move, it is not surprising that they have stuck to the path they took with the first Regulations. So, Regulation 4(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 4(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 may have been worrying (from a public health standpoint) is that there still remains 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 take away, but in unacceptably close proximity to each other, or even using the interior of the premises as a social club. 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 4(3) makes areas adjacent to the premises where seating is made available to customers of the business (so beer gardens and the like) part of the premises. There is again some (understandably) inconsistent drafting in the Regulation relating to hybrid businesses. Regulation 4(6) provides: If a business listed Part 1 or 2 Schedule 2 (“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 4(1) provides for the closure of premises, not businesses (as must be right - closure of a business implies winding up). I imagine that Regulation 4(6) 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 Schedule 2 must cease to carry on that business or to provide that service during the emergency period: Regulation 2(4). There are now 19 categories of Part 2 Premises (up from 11 in the first Regulations - additions marked up), namely:
5. Cinemas. 6. Theatres. 7. Nightclubs. 8. Bingo halls. 9. Concert halls. 10. Museums and galleries. 11. Casinos. 12. Betting shops. 13. Spas. 14. Nail, beauty, hair salons and barbers.
15. Massage parlours.
16. Tattoo and piercing parlours 17. Skating rinks. 18. Indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities.
19. Funfairs (whether outdoors or indoors).
20. Playgrounds, sports courts and outdoor gyms.
21. Outdoor markets (except for stalls selling food).
22. Car showrooms.
23. Auction Houses.
The wording of the schedule continues to reflect the speed with which it has been drafted. Again, simple English rather than technical definition is deployed. “Cease to carry on … business or to provide that service” 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. As I said when writing about the first Regulations, a narrower option might permit some, safe, economic activity to be conducted within the such premises (for instance, a livestreamed bingo session or concert). The Regulations now deal with this by specific exemption: it is possible to use a cinema, theatre, bingo hall, concert hall or museum or gallery (but not, strangely, a nightclub) to broadcast a performance: regulation 4(5).
It is also possible to use any suitable Part 2 premises to host blood donation services.
Regulation 4(6) relating to hybrid businesses relates to Part 2 businesses in the same way as it does to Part 1.
Busineses which are not Part 3 Businesses
The Regulations now add a further exclusionary class of business in Part 3 of Schedule 2. These are:
24. Food retailers, including food markets, supermarkets, convenience stores and corner shops.
25. Off licenses and licensed shops selling alcohol (including breweries).
26. Pharmacies (including non-dispensing pharmacies) and chemists.
28. Homeware, building supplies and hardware stores.
29. Petrol stations.
30. Car repair and MOT services.
31. Bicycle shops.
32. Taxi or vehicle hire businesses.
33. Banks, building societies, credit unions, short term loan providers and cash points.
34. Post offices.
35. Funeral directors.
36. Laundrettes and dry cleaners.
37. Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health.
38. Veterinary surgeons and pet shops.
39. Agricultural supplies shop.
40. Storage and distribution facilities, including delivery drop off or collection points, where the facilities are in the premises of a business included in this Part.
41. Car parks.
42. Public toilets.
As it shall be seen these are exceptions. All persons carrying on a business not listed in Part 3, of offering goods for sale or for hire in a shop, or providing library services must, by virtue of Regulation 5(1) , during the emergency period:
(a) cease to carry on that business or provide that service except by making deliveries or otherwise providing services in response to orders received—
(i) through a website, or otherwise by on-line communication,
(ii) by telephone, including orders by text message, or
(iii) by post;
(b) close any premises which are not required to carry out its business or provide its services as permitted by sub-paragraph (a);
(c) cease to admit any person to its premises who is not required to carry on its business or provide its service as permitted by sub-paragraph (a).
This does not apply to any business which provides hot and cold food for consumption off the premises: regulation 5(2).
Regulation 5(3) requires businesses consisting of of the provision of holiday accommodation, whether in a hotel, hostel, bed and breakfast accommodation, holiday apartment, home, cottage or bungalow, campsite, caravan park or boarding house, must cease to carry on that business during the emergency period. This is subject to exceptions for persons who are unable to return to their main residence, who live in the accommodation as their main residence, who need accommodation whilst moving house, or whilst attending a funeral. There are also exceptions for accommodation or support services provided for the homeless, for blood donation services, or for any purpose requested by the Secretary of State or a local authority.
Even in this crisis, it still comes as a shock to see in black and white regulation 5(5) which requires places of worship to be closed, except for funerals, to broadcast an act of worship or to provide essential voluntary services.
Community centres must close save for limited exceptions provided for in regulation 5(7).
Crematoria and burial grounds are to remain closed except for funerals or burials: regulation 5(8).
There is a saving formula for hybrid business in regulation 5(9).
Enforcement Regulation 8(1) provides that a relevant person (defined as a constable, a PCSO, a person designated by designated by the Secretary of State, and - in relation to business closure only - a person designated by a local authority) may take such action as is necessary any requirement imposed by Regulations 4 and 5.
All designations made by the Secretary of State under the first Regulations continue under these ones: regulation 2(3). Offences A person who without reasonable excuse contravenes regulation 4 and 5 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.
Fixed penalty notices There is now a fixed penalty notice (“FPN”) procedure in regulation 10. A FPN may be issued by a police constable, a PCSO, a person designated by designated by the Secretary of State, and - in relation to business closure only - a person designated by a local authority.
The maximum penalty for a first offence is £30. For a second offence it is £120. For a third and any subsequent offence it is double the amount previously imposed, up to a maximum of £960 (so a 5th offence)
Empowering statute 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: (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.
S.45F(2) provides: (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. Conclusion
These are strange days. It is hard to dispassionately look at a regulation that closes places of worship and graveyards without experience shock. But such is the nature of the current crisis.
I shall return to the restrictions on movement and gathering in a second article later today.
I am grateful to Ashley Price, Consultant in Infectious Diseases and General Internal Medicine, Royal Victoria Infirmary, Newcastle upon Tyne, for permitting me to use his drawing of the coronavirus.