Updates on Coronavirus Restrictions
On Friday 12th June 2020, the Government amended the lockdown rules once again to include 'linked households' and, by a separate statutory instrument, to give legal effect to the rules regarding face coverings on public transport.
It must be stated that these rules are for England only. Each of the constituent nations of the UK have their own measures.
The lockdown amendments can be found here, and the (now) amended rules can be found here for ease of reading. For simplicity, I shall be quoting from the now amended Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and referring to them as the 'Regulations'.
The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 are found here. For ease, I shall refer to these as the 'Face Covering Regulations'.
The Lockdown Restrictions
So what has changed here? The big change is the concept of 'linked households' which the Government had previously referred to as 'bubbles'. The previous rules on gatherings now no longer apply if the households are linked.
What is a linked household?
The definition of 'linked households' is now added into the Regulations at Paragraph 7A which reads:
7A.—(1) Where a household comprises one adult, or one adult and one or more persons who are under the age of 18 on 12th June 2020 (“the first household”), the adult may choose to be linked with one other household (“the second household”), provided that— (a) the second household is not linked with any other household; and (b) all the adult members of the second household agree. (2) There is no limit on the number of adults or children which may be in the second household. (3) The first and second households are “linked households” in relation to each other. (4) The first and second households cease to be linked households if neither household satisfies the condition in the opening words of paragraph (1). (5) Once the first and second households have ceased being linked households, neither the first household nor the second household may be linked with any other household.
My first thought on reading that the use of criminal law here is utterly ridiculous given how unenforceable this law seems.
To break this down, to be a 'linked household' there must be one household ("the first household") which contains at least one adult or one adult and one or more children. This first household then chooses to be linked to another household ("the second household").
This seems straightforward so far. However, there is more complication. The second household cannot be linked to another household and all adults in the second household must agree.
This is crucial and seems to create an unenforceable offence.
Why the concern on the use of criminal offences here?
Let us imagine the First Household contains 1 adult and the Second Household contains 4 adults. We assume they decide to link and this goes as planned for a few days. Then an adult in the Second Household (lets call them Person X) decides that they would rather link with a different house (perhaps to link with a partner instead of family). As soon as Person X decides they no longer wish to be linked to the First Household, the households unlink. Immediately and automatically.
At this point the remainder of the Second Household may not even be aware that their household is no longer linked to the First Household and that their continued contact becomes an offence.
If during the day Person X changes their mind and wishes to be linked to the First Household again, then they are again linked and no offences are committed anymore.
I appreciate that this is really a concern for lawyers on the nitty gritty of the law. These rules are fine in principle and make for good guidance on social distancing etc but, in my view, has no place in the criminal law given its obvious unenforceability and scope for the unintentional committing of offences.
Other measures introduced into the Regulations
Amongst some other changes is that you can now legally visit someone you "reasonably believe is dying" (paragraph 7(h)). This is obviously a good change but again, it seems madness that this is tied to the criminal law. There is no way that such an offence can reasonably be enforced, in which case, why does the offence exist?
The businesses that can now open has changed again and becomes somewhat more complication. There is no longer a simple way to summarise this and instead requires checking Schedule 2 of the Regulations to see if the business is permitted.
Face Coverings on Public Transport
Published on Sunday afternoon, to come into force on Monday, were the The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020. That is a long winded name so, as stated, I will simply use Face Covering Regulations.
What is a face covering?
They are defined as "a covering of any type which covers a person’s nose and mouth". A rather unhelpful definition as "of any type" is surely very wide.
Where must they be worn?
As per Paragraph 2(2):
“Public transport service” means any service for the carriage of passengers from place to place which is available to the general public (whether or not for payment, whether or not all of the places connected by the service are in England and whether or not there are breaks in the journey) but does not include— (a)a school transport service; (b)a taxi or private hire vehicle service; (c)any service provided by means of a cruise ship.
Essentially, they must be worn for all public transport, except school buses, taxis and cruise ships.
What are the offences?
The offence is "no person may, without reasonable excuse, use a public transport service without wearing a face covering" (paragraph 3(1).
As with many of the lockdown restrictions, we see the term 'reasonable excuse' here. What does this mean here?
Reasonable excuses are dealt with in paragraph 4 and are a non-exhaustive list. This is important to note.
The key ones are physical or mental illness or disability that prevents the wearing of a face mask, removing your mask to assist others, eating and drinking, and emergency travel to avoid harm.
How are they enforced?
Paragraph 5 deals with enforcement. If you are not wearing a face covering, you can be denied boarding. You can also be directed to wear one or directed to disembark. If it is a police officer that orders you to disembark, you can be physically removed.
Finally, the fixed penalty notices for an offence have been set at £100.
Continued Use of Emergency Legislation
To the criticism of many, the Government continues to pass these restrictions as emergency legislation and without Parliamentary debate. There is a question as to whether these are truly emergency measures given that the Government has been in the habit of announcing the measures days before the law is put in place, or in the case of face coverings, weeks before. Presumably, in the latter case, this involved consultation with the industry and seems to indicate that Parliamentary debate would have been possible.
For more on these criticisms, and the law generally, I thoroughly recommend the Twitter accounts of Adam Wagner and David Allen Green, both of whom offer excellent commentary on legal updates.
I also recommend The Good Law Project, who do great work and have been asking the Government to stop this reliance on emergency legislation where it is not required. You can see the Governments response to this request here.