The pubs (and theatres) are opening: The Health Protection (Coronavirus, Restrictions) (No. 2) (Engl


In what is now becoming the typical 11th hour and 59th minute publication, the regulations to remove the closure restrictions on pubs, bars cafés and restaurants with effect from 4 July 2020 were published at about 3.25 on 3 July 2020.

The regulations in question are The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020. They supersede the much-amended Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, about which I had promised regular updates, but when push came to shove, I lost the will to keep up.

Some immediate surprises about the new Regulations.

Firstly, not just cinemas but theatres are completely removed from the categories of business which must remain closed. The staged system that theatres are going through on their path to reopening is now not going to be the subject of any regulation - it presumably will be entirely by guidance, consent and health & safety legislation.

Secondly, the restrictions on gatherings have been very radically simplified and liberalised. Although the guidance published on 23 June 2020 on "Keeping workers and customers safe during COVID-19 in restaurants, pubs, bars and takeaway services" spoke of indoor gatherings only occurring in groups of up to two households (or support bubbles) and gatherings of 30 people not being permitted, much of this is now no longer in the regulations. There is now no regulatory prohibition or restriction on gatherings of more than 30 peoples indoors except in private dwellings or if that gathering would constitute a rave. Instead, the Governmental approach on gatherings is now a matter of guidance rather than law, as the newly updated guidance on Staying alert and safe (social distancing) now makes clear:

People will be trusted to continue acting responsibly by following this and related guidance, subject to an upper legal limit on gatherings (as described above). The overwhelming majority of the British public have complied with the regulations, and the wider guidance on how to keep themselves and their friends and family as safe as possible. Taking this into account, we trust people to continue acting responsibly, and to follow the guidance on what they should and should not do.

So, the nub of the gathering restrictions is that the Regulations now only place a 30-person limit on gatherings in private dwellings, and restrict gatherings of more than 30 persons in outdoor spaces which are not what a government spokesperson has described as "a COVID 19-secure environment".

The Regulations place no restrictions other indoor gatherings in excess of 30 people. Instead, the operators of those premises will risk assess under the Health & Safety at Work etc Act 1974 and the British public will be trusted to act responsibly.

For more detail, I and colleagues Sarah Clover and Leo Charalambides have prepared on behalf of NEXSTART a note on the new provisions that can be found here.

At the risk of repeating myself, the Regulations are not the end of the story. Businesses must comply with health and safety legislation and we can no doubt expect a flurry of new guidance in relation to that. It is important for enforcement agencies to bear in mind that guidance is not law and the police - in particular - should not be going around attempting to enforce compliance with guidance.

Sexual entertainment venues (ignored by the previous regulations) now have to close. In fact, many performances in an SEV would seem to be COVID-19 safe: short, no singing or talking (including talking by the audience) and at a mandated distance. But no, SEVs cannot function. A crumb of comfort is that they can re-purpose as bars and remain open.

I would be disappointed if the Regulations (in common with their predecessors) did not use words which have no legal meaning, and which they do not trouble to define, and I was not disappointed. So as well as the old favourites (including "nightclub:"), we now have "night" - when might this begin and end?

It is easy for lawyers to be pick holes in legislation drafted at great speed, and under great pressure, and without the usual consultation and scrutiny that would pick up issues. There is of course a massive amount at stake - not just the fight against the virus, but also the economic and cultural survival of our society.

I think the Government has recognised that it cannot micro-manage the reopening of the sector to the extent that the guidance was flagging up. The prospects of a restaurant policing "social bubbles" seemed far-fetched. A balance has to be struck between rules and the individual risk assessment of premises and their patrons. I suspect there is no right answer or perfect solution, and, whilst it is easy to criticise Government, one hopes that the more laissez-faire approach Regulations now take is an appropriate method to give businesses the flexibility to take sensible, common-sense decisions as how to operate safely, and that trust is rightly reposed in the common sense of the public.

Charles Holland -
Barrister

Licensing law, chancery/commercial litigation and property.

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