A barrister's guide to the new coronavirus regulations

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force at 1pm on 26 March 2020. They supplement the Coronavirus Act 2020, which came into force the previous day.

(There are corresponding regulations for other areas of the UK, but here I’ve focused on the England regulations for simplicity.)

The restrictions regulations revoke the earlier Health Protection (Coronavirus, Business Closure) (England) Regulations 2020, but preserve those regulations in relation to any offences already committed under them. The Secretary of State’s designation letter of 22 March also remains in force and applies to the new regulations. This means, for example, that local authorities are designated prosecutors for the business closure and cessation of trading parts of the regulations.

The most important points – and the regulations they relate to – for local authority enforcement officers are:

• Police can act on gatherings of three or more people and persons may be directed to go home (regulation 7 and regulation 8(9))
• Police may use reasonable force to disperse and/or remove people to their place of residence (regulation 8(3) and (4))
• Both police and LA officers can issue prohibition notices on premises closure (regulations 4 and 5)
• Police can issue fixed penalty notices (FPNs) for any contravention (regulation 10)
• Local authority can issue FPNs only for closure and trading restrictions (regulations 4 and 5)
• The regulations contain consent, connivance or neglect provisions in case of officers of corporate bodies acting in breach of the regulations (regulation 9(5))
• It is an offence to obstruct any persons exercising powers under these regulations (regulation 9(2))
• Local authorities can now prosecute the cease trading and closure provisions (this was outlined in the Secretary of State’s 22 March designation letter – before that prosecutions could only be brought through the Crown Prosecution Service)
• Local authority officers’ powers relate to prohibition notices, prosecution or FPNs for the enforcement of premises closure and trading restrictions only.
• It is an offence to breach a prohibition notice, but it is the same offence as that already committed by trading or keeping premises open in breach. The prohibition notice seems to serve the reasonable function of ensuring that the offence has not been committed through confusion, and thus dealing with the wording of the offence provision, which is committed where there has been a breach “without reasonable excuse”.

And to clarify a few terms used in the legislation:

• “A person responsible for carrying on a business” includes the owner, proprietor and manager of the business (regulation 1).
• “Vulnerable persons” include persons over 70, persons under 70 with an underlying health condition and pregnant persons (regulation 1).
• Premises include vehicles, vessels and aircraft and premises providing food or drink will include any area adjacent to the premises provided for that purpose (regulation 4(3) and The Coronavirus Act 2020 – schedule 22, paragraph 1).

For a full list of the powers of the police to prohibit people leaving their homes (and a list of reasonable excuses for leaving your home), and a full list of businesses that must close are available here.

David Armstrong is a barrister at law. David is happy to be contacted for information and advice via his website. He has also posted on his website videos and information openly available on the coronavirus regulations and the tenancy protection changes brought in by the Coronavirus Act 2020.

A longer version of this article will appear in the April 2020 issue of EHN magazine.