The Health Protection (Coronavirus, Restrictions) (No 3) and (All Tiers) (England) (Amendment) Regulations 2021 (the “Regulations”) came into force on Wednesday 6 January 2021.
Rather than provide a fresh set of regulations, the Regulations make amends to the pre-existing Health Protection (Coronavirus, Restrictions) (England) (No 3) Regulations 2020 and the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020. The expiry dates of these sets of regulations are extended to 17 July 2021 and 31 March 2021 respectfully.
The Regulations cover the entirety of England, but do not extend to Wales, Scotland or Northern Ireland which are currently under their own lockdowns.
This Briefing is a selected summary only of the parts of the Regulations that we believe will most impact on clients. It is not intended to be a full summary of the Regulations. Further details and advice may be provided upon request.
The Restrictions
Requirement to Stay at Home
As with the November and March lockdowns, the basic premise of the Regulations is that all members of the public must remain at home.
Individuals may not leave or be outside of the place where they are living without a “reasonable excuse”. The Regulations set out a non-exhaustive (although diminished when compared to previous regulations), list of exceptions, such as buying food and exercising. However, given the list is non-exhaustive it is a matter for individuals, and if necessary the Courts, to determine what constitutes a “reasonable excuse”.
Gatherings
The Regulations prohibit any indoor gathering between individuals who are not of the same household, linked household (colloquially known as ‘support bubbles’) or linked childcare household.
Linked households and linked childcare households are given the same meaning as previous regulations.
Individuals may meet one person from a different household in a public outdoor space for exercise only. For the avoidance of doubt this does not include private gardens. The Guidance indicates that exercise should only be undertaken once a day, but this is not replicated in the Regulations.
It is important to note that unlike the restrictions on leaving home, the Regulations set out the complete list of exceptions that can be applied. A full list can be provided on request.
Weddings and Funerals
Weddings are now limited to exceptional circumstances, such as if one member of the couple has a terminal illness or is due to undergo life altering surgery. They may be attended by no more than six people, not including the officiant.
Funerals are permitted with up to 30 attendees, however linked ceremonies such as stone setting and wakes may only be attended by up to six people.
Closure of Businesses
All non-essential businesses and services must close. This includes aspects of a business that is otherwise allowed to remain open, such as a café operating within a supermarket.
Personal care facilities, gyms and both indoor and outdoor sport facilities for the majority of the public must close.
Sports facilities may still be used for elite training, supervising children or those with disabilities, post-16 training and any use required by the Ministry of Defence. As it stands, that means that whilst professional footballers could train for a match, the match itself cannot take place, although we imagine this will be swiftly clarified.
Theatres and concert halls may remain open for education, rehearsal and performances without an audience, or to assist the Government in responding to the pandemic.
Delivery services, including ‘click and collect’, are still permitted for non-essential businesses.
Businesses that May Remain Open
Supermarkets, off-licences, newsagents, “corner shops” (not defined!), petrol stations, MOT centres, garden centres, post offices and bicycle shops are among a finite list of businesses that may remain open during the third lockdown. A full list may be provided upon request.
Automatic car washes may remain open but manual ones must close.
Alcohol Off Sales
There is no restriction on alcohol hours for off licences. Businesses must, however, still comply with any restrictions on their premises licence.
Hospitality Venues
Restaurants, cafés, bars, social clubs and public houses must close for the consumption of food or drink on the premises, although they may still operate as a takeaway or delivery.
Businesses should be aware that ‘on premises’ includes areas adjacent to a business where seating is available or customers habitually gather, regardless of whether those areas are provided by the business themselves.
An exemption is provided for food and drink at motorway service areas provided no alcohol is served between 23:00 and 05:00.
Businesses should note the rules on takeaways are more restrictive than under the tiered system. The direct sale of food and drink, but not alcohol, for consumption off premises is only permitted between 05:00 and 23:00. For the avoidance of doubt, takeaway alcohol is not permitted at any time, in accordance with attempts to minimise socialising.
Deliveries of food and drink, including alcohol, do not follow the same restrictions provided they fall within one of the following methods:
- Making deliveries in response to website, phone, or postal orders
- A purchaser collecting pre-ordered food or drink, provided they do not enter inside the premises
- Via a drive-thru
Hotels must close except for a finite list of exceptions, including those who need accommodation whilst moving house or receiving medical treatment. A full list can be provided on request.
Enforcement
The Regulations may be enforced by local designated officers, constables and Police Community Support Officers.
A breach of most of the Regulations without reasonable excuse is an offence punishable on conviction by a fine.
Certain officers may, as an alternative, issue fixed penalty notices.
On a first offence, the Fixed Penalty Notice will be £200, halving to £100 if paid within 14 days of receipt of notice. The fine increases for second and subsequent offences to a maximum of £6,400.
The fine for organising or holding a gathering is £10,000, and those for business restriction offences start at £1,000 for a first offence, rising to a maximum £10,000 for subsequent offences.
Individuals and businesses should be aware that for the purposes of determining whether an offence is a first or subsequent offence, breaches of any previous Covid Regulations are taken into account.
Conclusion
The new Lockdown Regulations may be described as ‘Tier 4 plus’. This is reflected in their drafting as amendments to pre-existing regulations, rather than providing a new stand-alone set. They seek to restrict the discrepancies between the strictest of the tier system and previous lockdowns, and are accompanied by Guidance that reinforces the ‘Stay at Home’ message.
This stricter approach is already being reiterated by enforcement officers, with the Metropolitan Police issuing a statement on 6 January that officers will be more readily issuing fines to those found breaching the Regulations. It is hoped that officers, individuals and businesses take a pragmatic and conscientious approach to this third (and hopefully final!) Lockdown.