The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020

On 21 March under emergency powers the government enacted The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (SI 2020/327) which enforced the closure in England of businesses selling food and drink for consumption on the premises, as well as a range of other businesses such as nightclubs and indoor leisure centres where a high risk of infection could be expected. SI 2020/350 revoked SI 2020/327, which had come into force only five days earlier, and re-enacted most of its provisions with more extensive restrictions.[4]

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350), informally known as "the Lockdown Regulations", replaced SI 2020/327 on 26 March 2020 with a series of more stringent restrictions. These regulations became the principal delegated English legislation restricting freedom of movement, gatherings, and business closures during the COVID-19 emergency period. There were four primary amendments to SI 2020/327, progressively relaxing the rules, on 22 April, 13 May, 1 June, and 13/15 June. On 4 July 2020, SI 2020/350 was repealed and replaced by these regulations, SI 2020/684.[5]

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020/684) was introduced by way of a Statutory Instrument made by the Secretary of State for Health and Social Care, Matt Hancock, using emergency powers available to him under the Public Health (Control of Disease) Act 1984. The regulations themselves state the legal basis for using such powers, namely "the serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) in England"; he also certified that the restrictions "are proportionate to what they seek to achieve, which is a public health response to that threat."[6]

The regulations were laid before parliament at 3.00pm on 3 July, the day before the regulations came into force.[6] The Secretary of State once again used section 45R of the Public Health (Control of Disease) Act 1984 to enact the regulations immediately subject to retrospective approval by resolution of each House of Parliament within twenty-eight days.[7] In the regulations themselves he stated that "by reason of urgency, it is necessary to make this instrument" without having first placed a draft before parliament for prior discussion and approval.[6]

The regulations (which apply in England only),[8] impose restrictions during the "emergency period"[9] which effectively re-enacts the identically-named period first defined in the Lockdown Regulations SI 2020/350, as amended.[10] The period ends when specified by the Secretary of State.[11] He is required to review the regulations at least every 28 days, and to terminate any restriction that he considers to be no longer necessary.[12]

The SI 2020/684 relaxation of the Lockdown Regulations does not apply in the city of Leicester and the surrounding area. Special rules applied there from 4 July 2020, as set out in The Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020 (SI 2020/685),[13][14] later partly relaxed.

SI 2020/684 as a whole came into effect at 0.01 am on 4 July 2020, though relaxation of the business closure rules allowing many venues to re-open were deferred until 6.00 am on the same day. According to a government spokesman this was a "sensible precaution" to avoid midnight parties.[15]

The previous list of businesses required to close is revoked and re-enacted, with fewer restrictions. The only businesses that are still completely barred from re-opening are nightclubs, dance halls, bowling alleys, discotheques; sexual entertainment venues; casinos; nail bars and tanning booths; spas and beauty salons (except hairdressers); massage parlours, tattoo parlours and body piercing services; indoor and outdoor swimming pools; and indoor skating rinks, play areas, gyms, sports courts, and fitness and dance studios.[16] Some exceptions are made for elite athletes, and professional dancers and choreographers.[17] Most trade shows, exhibitions and conferences are still not permitted.[18]

Premises that were previously forced to close but which are no longer explicitly prohibited from re-opening (unless they offer services mentioned in the list above)[19] include cafes, bars, pubs; theatres, concert halls, cinemas, museums, galleries, leisure and entertainment venues; social clubs, bingo halls; hairdressers; funfairs, theme parks, model villages; outdoor skating rinks, play areas, gyms and sports courts; indoor attractions at heritage sites, farms, zoos and safari parks; and libraries.[20][21] Places of worship can open generally and are no longer, as before, restricted to opening for private prayer.[22][19]

Although SI 2020/684 allows theatres and concert halls to re-open, separate government guidance published 3 July 2020 stated, "At this time, venues should not permit live performances, including drama, comedy and music, to take place in front of a live audience. This is important to mitigate the risks of aerosol transmission – from either the performer(s) or their audience."[19]

The previous Lockdown Regulations are revoked, and are replaced with a new regime which regulates gatherings of over 30 people. Most indoor gatherings of any size are now allowed, but subject to a limit of 30 for gatherings at private dwellings. Public outdoor gatherings of up to 30 are also allowed, but most larger public gatherings remain banned.

Subject to a few exceptions, all gatherings of more than 30 people within a private dwelling, or in an adjacent garden or yard,[23] remain prohibited.[24] For this purpose, the following are not considered to be 'private dwellings', and so could in principle have larger gatherings: hotels, hostels, campsites, caravan parks, B&Bs, care homes, children's homes, military accommodation and prisons.[25] Also not considered to be private dwellings are boarding schools and student halls of residence.[26]

All indoor raves regardless of the number of participants are prohibited[27] (outdoor raves are already liable to be broken up by the police under s63(1) of the Public Order Act 1994).

Generally, public outdoor gatherings of more than 30 are not allowed, unless at an outdoor visitor attraction or at an organization's operational premises.[28] Larger outdoor gatherings on public land are permitted only if they have been organised by a business, charity, public or political body, a risk assessment has been carried out, and all reasonable measures have been taken to limit virus transmission.[29]

There are some exceptions where otherwise-prohibited gatherings of more than 30 are allowed:

• Where reasonably necessary for work, voluntary or charitable purposes; or education or training[30]
• Where reasonably necessary for childcare[31]
• Where reasonably necessary to provide emergency assistance; or to avoid injury or illness or to escape a risk of harm[30]
• Certain exceptions for elite sportspersons[32]
• To fulfil a legal obligation.[33]

The government's updated non-enforceable guidance on social distancing is more restrictive than the legal regulations. The guidance states that from 4 July "you can meet in groups of up to two households (anyone in your support bubble counts as one household) in any location – public or private, indoors or outdoors. You do not always have to meet with the same household – you can meet with different households at different times. However, it remains the case – even inside someone’s home – that you should socially distance from anyone not in your household or bubble". When outside, "you can continue to meet in groups of up to six people from different households, following social distancing guidelines."[34]

The Secretary of State is given the power to make declarations restricting access to public outdoor places anywhere in England, either to a specified place or to all places of a given description.[35] Once he has made such a declaration, access restrictions must be enforced by the owner of the land or the local authority,[36] and it becomes a criminal offence for anyone apart from the owner or occupier[37] to enter the land without a reasonable excuse.[38]

Any direction to restrict access to public places must be reviewed by the Secretary of State at least once every seven days.[39] The owner or occupier of the land may appeal to the Magistrates Court against the direction.[40]

Enforcement of the regulations is in the hands of the police, with provision being made for the local authority and the Secretary of State to designate additional people for some purposes.[41]

It is a criminal offence to breach the restrictions on business closures, restrictions on gatherings, or public spaces that the Secretary of State has declared closed.[42] Fixed penalty notices may be issued,[43] or offenders prosecuted.[44]

The regulations automatically expired on 4 January 2021.[45]

As with the original regulations, SI 2020/719 was introduced by Secretary of State for Health and Social Care, Matt Hancock, using emergency powers under the Public Health (Control of Disease) Act 1984. The legal basis for the use of the powers is stated to be as before.[46] The regulations were laid before parliament on 10 July 2020,[46] and came into force on 11 and 13 July. The Secretary of State again used section 45R of the 1984 act to enact the regulations "by reason of urgency" subject to retrospective approval by resolution of each House of Parliament within twenty-eight days.[47]

The amendments allow certain businesses to re-open, specifically outdoor swimming pools and water parks (from 11 July 2020);[48] and nail bars and salons, tanning booths and salons, spas and beauty salons, massage parlours, tattoo parlours, and body and skin piercing services (from 13 July 2020).[49]

As with the original regulations, SI 2020/788 was introduced by Secretary of State for Health and Social Care, Matt Hancock, using emergency powers under the Public Health (Control of Disease) Act 1984. The legal basis for the use of the powers is stated to be as before.[50] The regulations were laid before parliament on 23 July 2020,[50] and came into force on 25 July. The Secretary of State again used section 45R of the 1984 act to enact the regulations "by reason of urgency" subject to retrospective approval by resolution of each House of Parliament within twenty-eight days.[51]

The amendments allow certain businesses to re-open, specifically indoor swimming pools, including indoor facilities at water parks, indoor fitness and dance studios and indoor gyms and sports courts and facilities.[52]

As with the original regulations, SI 2020/863 was introduced by Secretary of State for Health and Social Care, Matt Hancock, using emergency powers under the Public Health (Control of Disease) Act 1984. The legal basis for the use of the powers is stated to be as before.[53] The regulations were laid before parliament on 14 August 2020,[53] and came into force on 15 August. The Secretary of State again used section 45R of the 1984 act to enact the regulations "by reason of urgency" subject to retrospective approval by resolution of each House of Parliament within twenty-eight days.[54]

The amendments allow certain further businesses to re-open, specifically indoor casinos, indoor skating rinks, indoor play areas, bowling alleys and conference centres and exhibition halls.[55] A government press release noted that nightclubs, dance halls, and discotheques, as well as sexual entertainment venues and hostess bars, must remain closed.[56]

As with the original regulations, SI 2020/986 was introduced using emergency powers under the Public Health (Control of Disease) Act 1984 to enact the regulations "by reason of urgency" subject to retrospective approval by resolution of each House of Parliament within twenty-eight days,[70] although uniquely these amendments were made by the Home Secretary, Priti Patel.[71] The legal basis for the use of the powers is stated to be as before.[72]

The new general rule, subject to some exceptions, is that gatherings of more than six people are now banned.[73] Most distinctions between indoor and outdoor gatherings are removed, and the regulations now apply to gatherings in private dwellings and indoor public spaces as well as elsewhere.

The regulations do not loosen any stricter local regulations which apply in certain regions of England, specifically in those regions where smaller gatherings in private dwellings are already prohibited.[74]

The concept of "linked households" introduced on 15 June by SI 2020/588 is revived.[75] A household containing exactly one adult (no more) and any number of children may form a permanent link with one other household of any size[76] (such linked households are referred to in government statements as "support bubbles").[69] Households which were already linked under earlier regulations may not link with any other household.[77]

Gatherings of any size where all attendees are part of the same household, or of two linked households, are permitted.[78]

For the first time, the regulations allow for the possibility of multiple groups of people attending certain larger organised gatherings, with each group remaining separate from all the others. For this to be permitted, each group (called a "qualifying group") must be of no more than six people unless all members are from the same or a linked household. The qualifying groups must remain separate, and people may not join any other group nor mingle with anyone outside their own group.[79]

Such gatherings are permitted indoors or at a premises (other than in a private dwelling) only where operated by a business, a charitable, benevolent or philanthropic institution, or a public body.[80] They are permitted in a public outdoor space only if organised by one of the above, or a political body, and where a risk assessment has been carried out.[81]

Gatherings of more than six people from separate or non-linked households are also allowed in these circumstances, some of which are new:[82]

Terms marked with an asterisk in the above table:

• "formal organiser" means a business, a charitable, benevolent or philanthropic institution, or a public body
• "relevant premises" means premises which are operated by a formal organiser[91]
• "relevant outdoor activity" means an outdoor physical activity for which a licence or permit issued by a public body (other than a driving licence or a food or alcohol licence) is required;[92] Government guidance states that this covers shooting and hunting[93]

• "significant event gathering" means a gathering to celebrate a significant milestone in a person's life such as a coming of age or a rite of passage according to their religion or belief. Standard birthdays are not considered significant for this purpose. Gatherings for a funeral or commemoration of a life are included,[94] but there is no allowance for wakes, which must not involve a gathering of more than six.[93]

The £10,000 penalty for organising certain gatherings introduced on 28 August[95] now applies to gatherings not listed in the above categories of permitted gathering.[96] Other penalties for participating in a forbidden gathering remain in place.

The regulations were published only around 30 minutes before they were due to come into effect[97] at 00:01 on 14 September and were laid before parliament after that, at 10:30.[72]

It was reported in the press that the addition of the "relevant outdoor activity" exemption, covering hunting and shooting, held up publication until shortly before the new law was due take effect.[98]

As with the original regulations, SI 2020/1005 was introduced using emergency powers under the Public Health (Control of Disease) Act 1984 to enact the regulations "by reason of urgency" subject to retrospective approval by resolution of each House of Parliament within twenty-eight days.[102] The regulations were made by Matt Hancock.[103]

The regulations apply to businesses and service providers selling food and drink for consumption on the premises (including restaurants, cafes, bars and pubs), as well as many leisure and tourism services, close physical contact services, and social/recreational/cultural services in community centres and village halls.[104] The 'premises' for this purpose may be indoors or outdoors.[105] Government guidance provides a list of "in scope" services and settings.[106]

Every business or service provider covered by the regulations must display an approved QR code that can be scanned with a smartphone by people entering the premises.[107] It becomes a criminal offence not to display a code from 24 September 2020.[108]

Whenever anyone over the age of 16[109] enters the premises, the business or service provider must either ensure that the person has scanned the QR code,[110] or request contact details including name and (in order of precedence) phone number, email address or postal address.[111] Where people enter in a group, the number of people in the group must also be requested.[112]

This applies to anyone entering the premises (including customers, staff and volunteers), unless exempt.[113] Exemptions are made where a person enters for the sole purpose of making postal, courier or other deliveries and collections; and for police officers and emergency responders in the course of their duty.[114]

Where a person entering the premises is expected to interact with only a single member of staff, the name of that staff member must be recorded.[115]

The recorded contact details must be held securely for 21 days, and must be released on request to the Secretary of State or a Public Health Officer.[116] After 21 days the details must be destroyed.[117]

Where a group seeks entry, the business or service provider must obtain contact details from every group member, apart from those who have scanned the QR code or who are under 16.[118] Either each group member may provide details individually, or one group member may provide details for the group as a whole.[119]

Where a group is larger than six (for example where they are all of the same household or linked households), they must be treated as separate sub-groups of no more than six for this purpose.[120]

If anyone seeking entry for the purpose of consuming food or drink neither provides the requested information in full, nor scans the QR code, admission must be refused.[121] This requirement does not apply to the non food and drink establishments listed above.[122]

Businesses or service providers breaching certain of the regulations may receive a fixed penalty of £1000 (£500 if paid in 14 days), rising to £4000 for repeated violations.[123] Offenders may also be prosecuted.[124] Breaches subject to penalty or prosecution are:[125]

• Failing to display a QR code (from 24 September 2020)
• Failing to request contact details from a person or a group entering a premises
• Failing to record the single member of staff or volunteer whom a visitor comes into contact with
• Failing to retain the contact details securely
• Failing to delete contact details after 21 days unless there is another basis to retain them
• Non-compliance with a request from the Secretary of State or a Public Health Officer to disclose contact details

It is not an offence for members of the public to fail to provide valid contact details, nor for a premises to fail to refuse entry to customers who fail to provide valid contact details.[125]

From 28 September, SI 1045 amended the maximum fine to £10,000.[126]

If not previously revoked, the regulations automatically expire 12 months after they come into force.[127]

As with the original regulations, SI 2020/1008 was introduced using emergency powers under the Public Health (Control of Disease) Act 1984 to enact the regulations "by reason of urgency" subject to retrospective approval by resolution of each House of Parliament within twenty-eight days.[129] The regulations were made by the secretary of state, Nadhim Zahawi.[130]

Pubs, cafes, restaurants and other businesses that provide food or drink for consumption on the premises must take reasonable measures to ensure that[131]

• groups of more than six are not allowed admission to the premises,
• people from one group are not allowed to mingle with those from another,
• bookings for tables of more than six are no longer accepted, and
• an 'appropriate distance' is maintained between tables used by different groups.

Larger groups are permitted when all members are from the same or a linked household.[132]

There is an 'appropriate distance' between tables when they are spaced apart by at least two metres;[133] or by at least one metre with[134]

• barriers or screens, or
• back to back seating, or the tables being otherwise arranged to ensure that persons sitting at one table do not face any person sitting at another table at a distance of less than two metres, or
• other measures to limit virus transmission.

Infringement of the regulations may result in a fixed penalty notice of £1000, rising to £4000 for repeated violations.[135] Offenders may also be prosecuted.[136]

If not previously revoked, the regulations automatically expire on 17 September 2021.[137]

These regulations were amended with effect from 28 September 2020 by The Health Protection (Coronavirus, Restrictions) (Obligations of Undertakings) (England) (Amendment) Regulations 2020 (SI 2020/1046). From that date the term “Hospitality” is omitted from the title of the regulations[138] and the following requirements are introduced:

• The requirement to not accept bookings of more than six people, admit groups of more than six to the premises, or allow members of different groups to mingle is extended to leisure, tourism, and close physical contact services, as well as community and village halls. [139]
• Pubs, cafés, restaurants and bars are required to take all reasonable measures to prevent singing by customers in groups of more than six, and dancing on the premises. There is an exception at weddings, civil partnerships, and their receptions for the couple (only). [140]
• The playing of music at pubs, cafés, restaurants and bars is limited in volume to 85 db(A), with the exception of live music. [140]

SI 2020/1046 also introduces amendments requiring anyone responsible for a premises where a face covering must be worn to display a conspicuous notice or otherwise ensure anyone entering is informed of the requirement to wear a face covering unless the person is exempt or has a reasonable excuse for not wearing a face covering. It also prohibits a person responsible for a premises from preventing or seeking to prevent the wearing of face coverings by those required to wear one. [141]

SI 2020/1029 was made by Lord Bethell, using emergency powers under the Public Health (Control of Disease) Act 1984. The legal basis for the use of the powers is stated to be as before.[142] The regulations were laid before parliament on 24 September 2020,[142] and mostly came into force at 05:00 on 24 September. The Under-Secretary used section 45R of the 1984 act to enact the regulations "by reason of urgency" subject to retrospective approval by resolution of each House of Parliament within twenty-eight days.[143]

From 24 September the following businesses are required to close between 22:00 and 05:00 daily: restaurants*, food and drink takeaways* (but not supermarkets, convenience stores, pharmacists or filling stations), cafes and workplace canteens*, bars*, pubs*, social clubs*, casinos*, bowling alleys, cinemas, theatres, amusement arcades or other indoor leisure centres or facilities, funfairs (indoors or outdoors), theme and adventure parks and activities, bingo halls, and concert halls.[144][145]

Cinemas, theatres and concert halls may remain open after 22:00 for the purpose of completing performances which began before that time.[146]

Businesses may continue to sell food or drink between 22:00 and 05:00 by way of a delivery service in response to orders made online, by phone, text or post.[147] Overnight drive-throughs can also remain in operation,[148] and overnight food and drink may continue to be provided by motorway service stations.[149]

Venues marked * in the overnight closure list (above) which sell alcohol are required to serve all food and drink to customers seated at tables. Customers must order at the table, and must remain seated while eating and drinking.[150] Venues so marked which do not sell alcohol are not required to serve customers at a table, but they must ensure that customers eating and drinking on the premises remain seated.[151]

From 24 September, the exception to the rule of six for large 'significant event gatherings' is abolished, and such gatherings may not now consist of more than six people.[152] Gatherings for funerals can, however, still be of up to 30.[152] The maximum attendance at support group meetings reduces from 30 to 15, and such meetings may no longer take place at private dwellings.[153] Non-elite sports gatherings of more than six people may no longer take place indoors unless the participants are disabled.[154]

From 28 September, the legally-permitted maximum attendance at wedding and civil partnership ceremonies and their associated receptions reduces from 30 to 15.[155] Government guidance states that anyone who is working is not counted towards this limit.[156]

Contravening the overnight closure or table service and customer seating requirements may result in a fixed penalty notice for £1,000, rising on a sliding scale to £10,000 for fourth and subsequent breaches.[157] Penalties relating to the permitted gatherings rules are doubled from £200 to £6,400 depending on the number of breaches.[158][159] Offenders may also be prosecuted.[42]