The Law

The Law

The Blog sets out commentary on the law. Core legislation is set out below. (Each opens in a new window).

Corona Virus Act (Published original Act (Opens new window)

Civil Contingencies Act (Not yet activated)
The use of emergency powers (ie the creation of temporary legislation) is set out in part 2 of the Civil Contingencies Act 2004 (CCA 2004). The Act provides the Government with powers to create emergency regulations to deal with emergencies that threaten “serious damage to human welfare”, or that threaten damage to the environment or the security of the UK. Damage to human welfare is defined in the Act to include disruption to transport networks or to the supply of food, money, energy, or health services.

THE HEALTH PROTECTION (Coronavirus, Restrictions) (England) REGULATIONS 2020
BUSINESS CLOSURES
Under the regulations, there is a requirement (see Part 1 or 2 of Schedule 2):
4.(1)(a) to close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and to cease selling food or drink for consumption on its premises; or
4.(1)(b) if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises.

Under the regulations, (see Part 1 or 2 of Schedule 2), a person responsible for carrying on a business offering goods for sale or for hire in a shop, or providing library services must cease to carry on that business except that it can still make deliveries or otherwise providing services in response to postal, online or telephone orders, and close any premises not required to carry out the postal, online or telephone order business and may not admit any person to its premises who is not required to carry on the postal, online or telephone order business. (This doesn’t apply to hot or cold food for consumption off the premises).

There is also a requirement to close all holiday accommodation, whether in a hotel, hostel, bed and breakfast accommodation, holiday apartment, home, cottage or bungalow, campsite, caravan park or boarding houses, except where this is done to provide accommodation for any person who is unable to return to their main residence or the accommodation used as their main residence or who needs accommodation while moving house or to attend a funeral or to provide accommodation or support services for the homeless, or to host blood donation sessions, or for any purpose requested by the Secretary of State, or a local authority. This includes places of worship except for use for funerals, to broadcast an act of worship, or in relation to places of worship or community centres which provide essential voluntary services or urgent public support services (including food banks or support for the homeless or vulnerable people, blood donation sessions or support in an emergency). Crematoria and burial grounds are also closed except for funerals or burials.

PERMITTED REASONS / REASONABLE EXCUSE
There are also restrictions on movement created which are that  no person may leave the place where they are living without “reasonable excuse”. Reasonable excuse includes but not exclusively:
(a) to obtain or their household or for vulnerable persons being
basic necessities, (being any type of food/medical supplies) and
– supplies for the essential upkeep, maintenance and functioning of the household, or
– to obtain money;

(Comment: so going shopping is OK, as often as needed. The huge loophole is the supplies for the essential upkeep, maintenance and functioning of the household so this will include most items (but not most gardening produce), and would include getting a new oven or toaster that has broken down (but not replacing a working one). If the traveller considers that it is essential to the functioning of the household or its upkeep then that is the relevant test and if challenged by the police, then it is for the police to prove that you were not getting basic necessities, supplies for the essential upkeep, maintenance and functioning of the household, or money. Note that nowhere in the emergency powers are you required to give details of what or where you are getting them, so as long as you simply state that you are getting “basic necessities, household supplies &/or money, then you have complied with the Act.)

(b) to take exercise either alone or with other members of their household;

Comment: Although Ministers have publicly said that this is limited to 2 people of the same household, and there are reports that the police have stated this, there is no limitation on numbers. There is also no definition on the definition of exercise, so you are entitled to drive a reasonable distance to take that exercise and if the local park is crowded but a nearby hillside or mountain is deserted so that the risk of infection is lower, then (despite Derbyshire police statements to the contrary) you’re entitled to drive there.

(c) to seek medical assistance;
(d) to provide care or assistance, or safeguarding of vulnerable persons, or
to provide emergency assistance;

Comment: Emergency assistance is not limited to

(e) to donate blood;
(f) to travel for the purposes of work or
to travel to provide voluntary or charitable services,
but only where it is not reasonably possible for that person to work from their place of living;

Comment: There has been a suggestion that this is only for essential workers by various police forces. This is not the case. Unless the business is one of those businesses expressly forbidden to continue then you can drive there. Note that the list of permitted businesses is also wide open to interpretation. The use of phrases such as where it is not reasonably possible to work from home is open to a very broad interpretation and can only be finally tested by a Magistrates Court. In the vast majority of cases that CoronaWatchUK has been contacted about, where Police have threatened cautions or issued notice of fine, we would expect these to be overturned by the Court.


(g) to attend a funeral of
(i)a member of the person’s household,
(ii)a close family member, or
(iii)if no-one within sub-paragraphs (i) or (ii) are attending, a friend;
(h) to fulfil a legal obligation, including attending court or satisfying bail conditions, or
to participate in legal proceedings;
(i) to access critical public services, including—
(i)childcare or educational facilities ;
(ii)social services;
(iii)services provided by the Department of Work and Pensions;
(iv)services provided to victims (such as victims of crime);
(j) in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;
(k) in the case of a minister of religion or worship leader, to go to their place of worship;
(l) to move house where reasonably necessary;
(m) to avoid injury or illness or to escape a risk of harm.

There is a degree of overlap with Regulation 7 prevents a gathering in a public place of more than two people except where all the persons in the gathering are members of the same household, or where the gathering is essential for work purposes, to attend a funeral, or where reasonably necessary to facilitate a house move, to provide care or assistance to a vulnerable person, or to provide emergency assistance, or to participate in legal proceedings or fulfil a legal obligation.

POLICE STOP POWERS
Police and Public Health Officers are bound by the above rules (together with the pre-existing law before Covid119). So if they didn’t previously have the power, and it isn’t expressly in the Corona Virus Act 2020, then the police don’t have the power..and the enforcement powers are shown below. So the police have always had the power to stop and search on suspicion …although there are questions about whether road blocks are strictly within the powers. Police’s power to close roads is a function of the police’s common law duty to protect life and property generally and as a matter of tradition accepted by the courts, if a police officer reasonably thinks that a road is too dangerous to use, they have the power to close it, but the situation in Corona, except in time of War, has never been mirrored. In time of War, the Courts accepted that to prevent blackmarket trading and espionage, the police had the power to routinely stop cars and reasonably question the occupants.

The same is likely to apply under Corona road-blocks, although the closure of roads is probably not authorised merely to prevent people travelling as we’re not a police state (yet!), but the police can ask you to identify yourself as they can whenever a right to stop a vehicle arises and they are also entitled to ask you to tell them the purpose of your journey. As long as you give the police officer one of the permitted reasons shown above, then they must allow you on your way (assuming your car is legal, insured etc).

Do I have to justify my reasonable excuse to the Police Officer?
The answer here is a clear No! If you provide the reasonable excuse – for example, I am travelling for reasons of obtaining basic necessities and essential supplies for my household, this is all that is requried. The police officer can request additional information, but cannot compel you to provide it. You are entitled to reply “Officer, I understand your concern, but with all due respect, I have told you why I am travelling and the legislation doesn’t require me to give you further information. I respectfully therefore request that you cease detaining me and allow me on my way”. If the Police officer has reasonable suspicion that this is not the case, he can issue you with the relevant NIP (ticket/Fine notice) but you are entitled to challenge this in court before the magistrates and it is for the police to prove their case that you were not “travelling for reasons of obtaining basic necessities and essential supplies for my household” and in practical terms, that would be impossible in most cases. (Of course, if you are transporting a car full of plants for your garden, you are going to have difficulty overcoming the conclusion of the magistrates about the purpose of your journey after hearing police evidence that your car was full of garden bedding plants. (You would have to persuade the magistrates that the plants were “supplies for the essential upkeep, maintenance and functioning of the household” and in the case of bedding plants, they may be supplies for maintenance of the household, but not “essential”. The question of essential is usually a subjectively objective test, so that it is for you to say that it is essential to you and for the magistrates to decide objectively whether that is a reasonable determination for you to make. (If you are a professional gardener then your other excuse could be that you are travelling for the purposes of work.).

A few online resources have said that you don’t need to provide police with your name and address or the reason for travel and such commentaries are frankly wrong! If you do that, other powers kick in, namely obstruction of a police officer in the execution of his duty. Generally speaking, a police constable must take all steps which appear to him/her necessary for keeping the peace, for preventing crime, or for protecting property, but they must within exercise of that power act only in accordance with their duties and powers as set out by the law…..so if you are stopped:
1. Be polite and respectful;
2. Provide your name and address;
3. Provide the “reasonably excuse” although you don’t have to give more detail.
and…if the police officer has reasonable suspicion, then he/she can carry out a search. (This is the position that was in place prior to the Corona Virus Act.

Not stopping for a road-block is covered by Section 35 of the Road Traffic Act 1988 makes it an offence for the driver of a vehicle not to stop when required to do so by a police officer engaged in regulating traffic. The officer has to be acting “in the execution of his duty”, which opens up the possibility of defending the charge on the basis that the officer wasn’t genuinely acting to protect life.

If the police officer does tell you that you can’t drive further down the road, then you are entitled to ask for his/her badge number and advise that if they are stopping you on your “reasonable excuse” journey then you will make formal complaint and need their badge number. You could push it, and choose to drive on, but it isn’t recommended. ((Johnson v Phillips, 1975) where someone who failed to comply with a police officer’s direction to reverse the wrong way down a one-way street was convicted of wilfully obstructing a constable in the execution of his duty (now an offence under section 89 of the Police Act 1996. The high court, on an appeal from the magistrates’ court, held that in the particular circumstances of this case the officer, acting to protect life, was entitled to instruct the driver to disobey a traffic sign. It upheld the conviction.)….and you can go all the way through police complaints and judicial review if you’re up to it. (Nothing stops you looking up an alternative route on the SatNav which by-passes the road block). [Note; that this probably would be an offence where an area was entirely closed, for example on a chemical leak to preserve life).

Enforcement of the Requirement to close businesses and prevent gatherings.
Under these Health Protection Regulations, a Police Officer and/or Public Health Officer (PHO) can take such action as is necessary to enforce any requirement imposed by regulation 4, 5 or 7 (being closing business rules and prevention of gathering) and in relation to gatherings can order dispersal or can order the parties home (or forcibly take them home).

The Police Officer (inc CSO), and/or local authority Public Health Officer may give a prohibition notice to a person if he/she reasonably believes that the person is contravening a requirement in regulation 4 or 5 (closing business rules) and the notice is necessary and proportionate for the purpose of preventing that person from continuing to contravene the requirement.

The Police Officer and/or Public Health Officer if he/she considers that a person is outside their home without reasonable excuse (i.e. in contravention of regulation 6(1)) then they may direct that person to return home or use reasonable force to remove them to their home. If a child is outside the home without reasonable excuse and “accompanied by an individual who has responsibility for the child” then the Officer can direct the individual with responsibility can be directed to take the child home. (It is difficult to imagine a situation where the adult would have reasonable excuse when the child doesn’t.). They can also require the must also ensure the individual who has responsibility to comply with the direction. (Presumably aimed at a measure to try to stop a group of children persistently meeting in breach of regulation 6 – although the Regulation requires the adult to actually be present with the child, but also if the child is repeatedly failing to comply with the restriction in regulation 6(1), then the responsible person must ensure that so far as reasonably practicable, the child complies.

In all cases the powers can only be exercised if the officer considers that it is a necessary and proportionate means of ensuring compliance with the requirement.

PART 1: Businesses Closed except for takeaways

  1. Restaurants, including restaurants and dining rooms in hotels or members’ clubs.
    2.—(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.
  2. Bars, including bars in hotels or members’ clubs.
  3. Public houses

    (Remember that this does not cover room service in hotels, which is permitted)

PART 2 – Entirely closed businesses

  1. Cinemas.
  2. Theatres.
  3. Nightclubs.
  4. Bingo halls.
  5. Concert halls.
  6. Museums and galleries.
  7. Casinos.
  8. Betting shops.
  9. Spas.
  10. Nail, beauty, hair salons and barbers.
  11. Massage parlours.
  12. Tattoo and piercing parlours.
  13. Skating rinks.
  14. Indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft
    play areas or other indoor leisure centres or facilities.
  15. Funfairs (whether outdoors or indoors).
  16. Playgrounds, sports courts and outdoor gyms*.
  17. Outdoor markets (except for stalls selling food).
  18. Car showrooms.
  19. Auction Houses.
    * Note use of the word “Sports Courts” and not “Sports Arenas”

PART 3 Permitted businesses
(Businesses not listed in Part 1, Part 2 or Part 3 must be mail order, and note also that Mail Order would appear to include “click and collect”)

  1. Food retailers, including food markets, supermarkets, convenience stores and corner shops.
  2. Off licenses and licensed shops selling alcohol (including breweries).
  3. Pharmacies (including non-dispensing pharmacies) and chemists.
  4. Newsagents.
  5. Homeware, building supplies and hardware stores.
  6. Petrol stations.
  7. Car repair and MOT services.
  8. Bicycle shops.
  9. Taxi or vehicle hire businesses.
  10. Banks, building societies, credit unions, short term loan providers and cash points.
  11. Post offices.
  12. Funeral directors.
  13. Laundrettes and dry cleaners.
  14. Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other
    medical or health services, including services relating to mental health.
  15. Veterinary surgeons and pet shops.
  16. Agricultural supplies shop*.
  17. 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.
  18. Car parks.
  19. Public toilets.
    * it is unclear whether this includes horticultural venues as over the years the distinction has ceased to be clearcut. (if you’re calling yourself “horticultural” but selling Agricultural supplies, your probably OK.


OTHER POWERS

The law is also vague if you’re self-employed. You have a reasonable excuse to be away from home but a police officer could decide your work is not essential and order you home, but if wrong the police could be sued for unlawful loss of earnings.

See our commentary on Schedule 21 powers

As our other blog post shows, you can also be arrested if you have symptoms under Schedule 20.

The Health Protection (Coronavirus: Closure of Leisure Businesses, Footpaths and Access Land) (Wales) Regulations 2020
The Health Protection (Coronavirus, Business Closure) (Wales) Regulations 2020
The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (Revoked by theHealth Protection (Coronavirus, Restrictions) (England) Regulations 2020).
The Health Protection (Coronavirus) Regulations 2020
The Health Protection (Coronavirus) (Wales) Regulations 2020

There are powers which are available under the Public Health (Control of Disease) Act 1984 and these contain powers for the Secretary of State for Health to 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). These provisions have been available for many years. The Act permits regulations to be made imposing duties on registered medical practitioners or other persons to record and notify cases or suspected cases of infection or contamination, as well as )conferring on local authorities or other persons functions in relation to the monitoring of public health risks, and 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. Any powers are subject to restrictions or requirements proportionate to what is sought to be achieved by imposing the requirements or restrictions.

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 provides for the creation of health offences which carry fines up to £100 per day.