The Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 SI 447 were made on 21st April 2020, laid before Parliament at 12.30 p.m. on 22nd April 2020, and came into force at 11.00 a.m. on 22nd April 2020. The header to this new SI explains: “This Statutory Instrument corrects errors in the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (S.I. 2020/350).

Since this affects “thy going out and thy coming in from this time forth, and even for evermore“, (Psalm 121:8), or at least until the original Regulations “expire at the end of the period of six months beginning with the day on which they came into force (i.e.1.00 p.m. on 26th March 2020) “, (Paragraph 12.—(1)), we suspect that it will be of general interest.

The Explanatory Note at the end of SI 2020/447, which is not part of the Regulations, states:

These Regulations amend the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. Regulation 3 is amended to ensure that the saving provisions made in section 16 of the Interpretation Act 1978 (c. 30) apply to the termination of a restriction or requirement by direction. Regulation 6 is amended to clarify that under regulation 6(1), the prohibition applies both to leaving the place where a person is living without reasonable excuse, and also to staying outside that place without reasonable excuse.

The Regulations also clarify the application of enforcement provisions in regulation 8, permit payment of fixed penalties following the issue of a fixed penalty notice under regulation 10 to be made to an officer designated by the Secretary of State or by a local authority (including a county council), amend the list of businesses in Part 2 and Part 3 of Schedule 2 and make other minor amendments.

A full regulatory impact assessment has not been prepared for these Regulations.”

In addition to the Explanatory Note at the end of the Regulations, there is a separate 5-page Explanatory Memorandum prepared by the Department for Health and Social Care which was laid before Parliament. This memorandum contains information for the Joint Committee on Statutory Instruments. This instrument corrects an error in the Restrictions Regulations (SI 2020/350), namely corrects the name of the Department for Work and Pensions in regulation 6(2)(i)(iii), and “also makes a number of changes to the Restrictions Regulations to clarify and better enable the public health measures in those Regulations to achieve the intended purpose of reducing public health risks posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).

[6.6]. In particular:

• Regulation 3(4) of the Restrictions Regulations is amended to ensure that prosecutions can be brought (or continued) in respect of breaches of measures in those Regulations, where those measures have subsequently been lifted by a direction.
• Regulation 5(8) of the Restrictions Regulations is amended to clarify burial grounds, including those surrounding crematoriums, can remain open.
• Regulation 6(1) is amended to put beyond doubt that a person commits an offence if they remain outside of the place where they are living without reasonable excuse, having left it for a permitted reason.
• Regulation 6(2) is amended to clarify that it is a reasonable excuse to leave, or be outside of, the house to: (a). access all types of money service businesses including savings clubs and international money transfer businesses; (b). visit a burial ground, garden of remembrance or grounds surrounding a crematorium to pay respects to a family member or friend.
• Regulation 8(5)(a) is a clarificatory amendment to provide that where a child is contravening regulation 6(1), enforcement officials (police officers) should instruct the responsible adult of the child to escort the child to the place where the child is living.
• Regulation 8(10) is also a clarificatory amendment. In particular new paragraphs (10A) and (10B) clarify the enforcement action which may be taken against persons accompanying a child who is gathering in contravention of regulation 7 (as it may for a person accompanying a child who is outside of the place they live in contravention of regulation 6).
• Regulation 10 is amended to clarify that a fixed penalty notice can be issued to a person aged 18 and over, rather than over 18. It is also amended to allow a designated officer (not just a local authority) to be specified as the person to whom a fixed penalty is to be paid. It is intended that the Chief Executive Officer of ACRO Criminal Records Office will be designated, to facilitate effective administration of FPNs.
• Regulation 10 is also amended to provide that fixed penalty notices can also
  be issued and collected by county councils.
• Schedule 2 is amended:
  a. to ensure outdoor swimming pools are closed (in addition to indoor pools)
  b. to ensure livestock markets and auctions are exempt from closure,
  c. to clarify types of money service businesses which can remain open includes savings clubs and international money transfer businesses.

[6.7]. The police and local authorities will continue to monitor compliance with the regulations, including the amendments set out in this S.I.

Footnote: Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) is the virus strain that causes coronavirus disease 2019 (COVID-19). 

Scotland

The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 2) Regulations 2020 were made and came into force (in accordance with regulation 1(1)) at 9.00 a.m. on 21st April 2020. There is also an accompanying Policy Note.

Comment

The implications of these changes are currently being assessed. Adam Wagner and Kirsty Brimelow Q.C. have produced a PowerPoint presentation COVID-19 Emergency Police Powers: What are they and how should they be exercised.