Introduction
At 6am on Wednesday 15 December, the Health Protection (Coronavirus, Restrictions) (Entry to Venues and Events) (England) Regulations 2021 (“the Regulations”) came into force in England. Scotland and Wales have their own schemes on mandatory COVID-19 status checks.
The Regulations state that certain venues and events will be required by law to check that all visitors aged 18 years or over are fully vaccinated on the NHS COVID Pass, have proof of a negative test in the last 48 hours, or have an exemption to gain entry.
The Government is also encouraging people to have a lateral flow test before entering “high-risk settings” (such as a crowded place) or spending time with those at greater risk from coronavirus.
Venues and Events that Must Carry Out Covid-19 Status Checks
Venues and events where the NHS COVID Pass, or alternative proof of COVID-19 status, must be used as a condition of entry are:
- Nightclubs, dancehalls and discotheques
- Other late-night dance venues, where all the following apply:
- The venue is open between 1am and 5am
- It serves alcohol after 1am
- It has a dance floor (or space for dancing)
- It provides music, whether live or recorded, for dancing
- Indoor events with 500 or more attendees, where those attendees are likely to stand or move around for all or part of the event, such as music venues with standing audiences or large receptions
- Outdoor events with 4,000 or more attendees, where those attendees are likely to stand or move around for all or part of the event, such as outdoor festivals
- Events with 10,000 or more attendees, whether indoor or outdoor, such as large sports and music events
Venues and Events Exempt From Carrying Out Covid-19 Status Checks
Some nightclubs, dance halls, discotheques and other late-night dance venues do not have to use the NHS COVID Pass. These are:
- An outdoor event and there are fewer than 4000 attendees at any one time
- Nightclubs, dance halls and discotheques which close their dance floor or cease to provide music
- If the venue is exempt from using NHS COVID Pass such as a wedding or civil partnership ceremony
- Other late-night dance venues when operating outside of hours of 1am to 5am, or which close their dance floors or stop serving alcohol between 1am and 5am
The following settings do not need to apply COVID-19 status checks as a condition for entry, unless they are holding an event that meets the criteria noted above:
- Museums or art galleries
- Theme parks and fairgrounds
- Other tourist, heritage, or cultural sites (including zoos, aquariums and botanical gardens)
- Recreation and leisure facilities (such as bowling alleys, amusement arcades and bingo halls)
- Sport and physical activity facilities (such as gyms, swimming pools and skating rinks)
- Play areas or centres
- Casinos
- Cinemas
- Transport hubs and public transport
- Retail, including markets, shops, shopping centres, and supermarkets
Even if attendance thresholds are met, you are not required to use the NHS COVID Pass for the following events:
- Communal worship
- Wedding and civil partnership ceremonies and equivalents
- Receptions celebrating a wedding or other significant life event (such as a christening, bar and bat mitzvah or mehndi ceremony) that are organised by an individual
- Funerals and commemorative events
- Outdoor events in public spaces where these are unticketed and not charged for (such as markets, street parties, protests and carnivals)
Settings Where You Should Not Ask People to Show Their Covid-19 Status
There are some settings where COVID-19 status checks should not be used as condition of entry. This is so everyone can access them. These include:
- Essential services such as hospitals or pharmacies
- Essential retailers such as supermarkets
- Public transport
- Schools and other education settings
How Can Organisations Safely Manage the Checking Process?
The Government advises organisations (organisers or manager of the premises) to check for proof of COVID-19 status using the free NHS COVID Pass Verifier App wherever possible to ensure passes are valid and have not expired and to reduce the possibility of fraud.
The Government also encourages organisers and managers to set up queueing systems upon arrival, having staff check the NHS COVID Pass away from entry points, clearly communicate requirements ahead of arrival and display signage to explain the rules.
Additional Record Keeping Requirements
Organisations must also produce, and keep up to date, a statement setting out the measures they will introduce to ensure that they are meeting the requirements of carrying out mandatory COVID-19 status checks. The Government guidance outlines exactly what information records must be kept (such as the date of the event, number of people attended, what measures were adopted and so on).
You must keep hold of these records and a copy of your general policy statement for 3 months from the date of the event or venue.
Exempt Persons
Anyone under 18 years old is exempt from the requirement to have an NHS COVID Pass.
There are also some other people who are exempt from the mandatory use of the NHS COVID Pass. These include:
- Local authority officers and emergency services responders, including police officers, medical professionals, and fire fighters
- A diplomat or someone working for an international organisation
Enforcement Options For Local Authorities
Failure to comply with the Regulations can result in a local authority taking enforcement action by way of prosecution or the issuing of a fixed penalty notice.
- Coronavirus Improvement Notice (CIN) – This is often the first step taken and requires compliance by a date specified on the notice, which will be a minimum of 48 hours after issue.
- Coronavirus Restriction Notice (CRN) – Failure to comply with a CIN can result in the local authority issuing a CRN. This requires closure of all or part of the business, venue or event. The notice will apply for 7 days and following this period it can be withdrawn or allowed to expire if the necessary steps have been taken.
- Coronavirus Immediate Restriction Notices (CIRN) – An alternative measure available to local authorities which requires closure of the venue for an initial period of 48 hours. This will be reviewed before it ends and can be withdrawn or allowed to expire.
The fixed penalty for a first offence would be £1,000 (if paid within 14 days of the notice, this can be reduced to £500), £2,000 for a second offence, £4,000 for a third offence and £10,000 for the fourth and any subsequent offences.
Concluding Remarks
According to the Government, the introduction of these COVID passes in England is the appropriate measure to help contain the spread of the new Omicron variant and encourage people to get vaccinated and have the booster jab.
Interestingly, COVID Passes have already been in use in Scotland for some time now but despite this the Scottish Government is still warning of further restrictions. We are all hoping that these Regulations in combination with other measures can effectively contain the spread of this new variant.
The writers very much hope that this will be the last Briefing on Covid Regulations for 2021. It is perhaps tempting fate to wish readers a Happy Christmas, but we do so anyway. For those who are unwell we wish you a speedy recovery. To everyone else stay well!