Boris has said that gatherings are banned, that As of now, people must stay at home except for shopping for basic necessities, daily exercise, medical or care need, and travelling to and from work where “absolutely necessary” and that if people do not follow the rules police will have the powers to enforce them, including through fines and dispersing gatherings…really?
Firstly there is the question of whether this is a proportionate response to the limited number of corona deaths in the UK…… and the arguments that the proportionate response is to allow those who are not vulnerable and those who are not living with vulnerable people to continue as normal, have their flu-like symptoms and develop herd immunity, thus depriving COVID19 of most of its carriers….and the right of the healthy to choose to get infected and get the illness over with and develop immunity ahead of a risk of the virus mutating into something worse….but leaving Human Rights aside….
It is correct that Schedule 21 prohibits gatherings…however it is very limited in its powers. It is a statute and therefore subject to strict narrow interpretation.
Schedule 21 relates to Powers to issue directions relating to events, gatherings and premises. Premises will take its normal meaning in law of “a building or part of a building usually with its appurtenances (such as the grounds of the premises) and the legislation expressly states that it includes for these purposes “any place” and, in particular, includes (a) any vehicle, train, vessel or aircraft, (b)any tent or movable structure, and (c)any offshore installation (within the meaning given by regulation 3 of the Offshore Installations and Pipeline Works (Management and Administration) Regulations 1995 (S.I. 1995/738),…but is clearly interpreted as any enclosed or significantly enclosed space and it applies in relation to Crown premises as it applies in relation to any other premises. (This should be contrasted with the possible use of “any land or place” which would cover outdoor as well as enclosed spaces).
Part 2 relates to “Powers relating to events, gatherings and premises in England”. (Wales, Scotland and Northern Ireland have similar provisions elsewhere in Schedule 21.
The powers only come into force if there is a declaration by the Minister of Health of a serious
and imminent threat to public health in England and if they are an effective
means of (i)preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus in England, or (ii)facilitating the most appropriate deployment of medical or emergency personnel and resources in England. (In practice this is met…the test is not that the measures are the best means, just that they are a means of achieving these goals. (And just like other provisions, the declaration must be given as soon as the crisis is over).
The Secretary fo State for Health has power to prohibit or otherwise restrict events or gatherings in England, but this is strictly limited. He/she may only exercise the powers for the purpose of either
(a)preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus, or
(b) facilitating the most appropriate deployment of medical or emergency personnel and resources.
The Secretary of State for Health can do so in relation to
a) a specified event or gathering, or
(b) events or gatherings of a specified description, such as public gatherings of more than 2 people not being in the same family group.
(In the case of a family group, this is an extremely difficult definition and even the tighter definition of A family group living under the same roof Is still problematic because plain use of English would suggest that the family is “living under the same roof” where they are “regularly mixing as they would on Christmas Day”.
In practice, it is difficult to see a couple of police officers trying to enforce powers against a large group of individuals claiming to be a family group living under the same roof.
s5(3) Then gets worse for the government because the power of prohibition restriction can only be used where it has the effect of imposing prohibitions, requirements or restrictions on
(a) the owner or occupier of premises for an event or gathering to which the direction relates;
(b) the organiser of such an event or gathering;
(c) any other person involved in holding such an event or gathering.
(Remember we have already established above that “premises” is an enclosed area, so it is difficult to see how this prohibition can be used in relation to open spaces).
s7 also Makes it very clear that the prohibition powers only apply to organisers.
s7 states “The reference in sub-paragraph 3(c) [i.e. prohibitions, requirements or restrictions…in relation to events & gatherings] does not include a person whose only involvement in
the event or gathering is, or would be, by attendance at the event or
However, once told to disperse by a police officer, you could then face a more serious charge of obstructing a police officer in the execution of his duty, so you are well advised to disperse if asked, unless you are all living under the same roof when the police officer has no power to ask you to disperse.
This means that there is no power of prohibition requirement or restriction for a spontaneous gathering of people where it has not been organised. So with a group of friends see each other in a park and get together spontaneously, as long as none of them admit to organising it (even spontaneous organisation might be caught), then the powers do not kick in.
There are also sweeping powers to close premises in England or impose restrictions on persons entering or remaininginside them under s8 by reference to (among other things) (a)the number of persons in the premises; (b)the size of the premises; (c)the purpose for which a person is in the premises; (d)the facilities in the premises; e)a period of time.
So, what is the sanction? A person commits an offence if the person fails without reasonable excuse to comply with a prohibition, requirement or restriction imposed on the person
by a direction issued under this Part of this Schedule and a person guilty of an offence under this paragraph is liable on summary conviction to a fine….if the police can show that all of the necessary ingredients of the offence were made out.
A reasonable excuse includes “We’re all in the same family group”
It is also noted that in Wales, Scotland and Northern Ireland, a Minister issuing a relevant restriction may pay compensation, but yet again there is no similar provision in English law. Why?