This article has been updated (27 March) following changes to the Regulations.
A detailed bulletin has been provided by James Button which can be accessed below:
Restrictions on movement and business closures - J Button Bulletin
Original Article (published 23 March 2020):
As I am sure everybody knows, pubs, restaurants etc were ordered to close from Friday night (20th March 2020), and the regulations enforcing that came into effect at 2 PM on Saturday 21st March across both England and Wales.
The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (SI 2020/327) and the Health Protection (Coronavirus, Business Closure) (Wales) Regulations 2020 regulations are identical, save only for the powers being given to the Secretary of State in England and the Welsh Ministers in Wales. All references to regulation numbers therefore apply to both Countries unless otherwise stated.
The regulations last for 6 months (Regulation 5), and the period of closure lasts for the duration of the “relevant period”(Defined in Regulation 2(9)(c)). That is from the introduction of the regulations until a day specified by the Secretary of State/Welsh Ministers (Regulation 2(7)). The need for the restriction must be reviewed every 28 days (Regulation 2(6)) and the first review must be undertaken before the end of that initial 28 day period. Interestingly, there is no requirement for each subsequent review to be commenced before the end of each further period of 28 days, which suggests that subsequent reviews could be more cursory.
The effect of the regulations is to prevent a wide range of businesses (although not necessarily all commercial operations) from opening during the relevant period. These fall into 2 categories: the first category (Detailed in Part 1 of the Schedule to the Regulations) consists of premises providing food or drink for consumption on the premises; the second category consists of premises where people congregate (Detailed in Part 2 of Schedule 1 to the Regulations).
Restaurants, cafes, bars and public houses are detailed in Part 1 of the Schedule in the following terms:
“1. Restaurants, including restaurants and dining rooms in hotels or members clubs.
2. Cafes, including workplace canteens, but not including—
(a) cafes or canteens at a hospital, care home or school;
(b) canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence;
(c) services providing food or drink to the homeless.
3. Bars, including bars in hotels or members’ clubs.
4. Public houses.”
Beyond that, there are no definitions (for example a “public house” is not defined by any reference to the Licensing Act 2003 (“the 2003 Act”)), therefore these terms will carry their usual everyday meaning, and it is highly likely that any court will be urged to take a purposive approach to the interpretation of these regulations. On that basis this is a very wide collection of premises.
The requirements under the regulations are that those premises must:
“(a) during the relevant period—
(i) close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and
(ii) cease selling food or drink for consumption on its premises; or
(b) if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises during the relevant period.” (Regulation 2(1)(a)).
There is no prohibition on the sale of food or drink for consumption off the premises (Regulation 2(1)(b)), but it must be noted that the concept of premises is extended for the purposes of these regulations. As there is no precise definition of these various businesses, for example the “premises” as understood in relation to an authorisation under the 2003 Act does not automatically apply in the circumstances.
What the regulations say is that in relation to premises selling food or drink for consumption off the premises
“an area adjacent to the premises of the business where seating is made available for customers of the business (whether or not by the business) to be treated as part of the premises of that business.” (Regulation 2(3)).
Obviously beer gardens, seating areas outside cafes, terraces and so on are part of the business premises, but this extends far further. Again, “adjacent” will carry its usual everyday meaning and the Shorter Oxford English Dictionary definition is:
“lying near to; adjoining; bordering (not necessarily touching)”.
This significantly extends the scope of this provision. A takeaway cafe situated in a public park, where there is a seating area adjacent to that operation will be prohibited from selling food or drink for consumption off the premises, notwithstanding the fact that they have no control over the use of that seating area, no responsibility for it, and apart from proximity, no commercial connection to it. The same would apply to a pub with an entrance directly from the pavement selling alcohol from a window to be consumed by people sitting on a public bench outside.
The second category of premises detailed in Part 2 to the Schedule are:
8. Bingo halls.
9. Concert halls.
10. Museums and galleries.
12. Betting shops.
14. Massage parlours.
15. Indoor skating rinks.
16. Indoor fitness studios, gyms, swimming pools or other indoor leisure centres.”
Again, these are concepts which are readily understandable although not specifically defined in detail.
Responsibility to ensure compliance with these requirements lies with the “person who is responsible for carrying on a business” (Regulation 2(1)), who is defined as including “the owner, proprietor, and manager of that business” (Regulation 2(9)(b)).
Any contravention of regulation 2 is an offence, punishable on summary conviction with an unlimited fine (Regulation 3(1) & (3) and Magistrates Courts Act 1980 S32(9) and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015/664). Where the business is run by a body corporate, directors, managers, secretaries and other similar officers will be guilty of the offence (in addition to the body corporate itself) if it is proved that the offence was committed with their consent or connivance or as a result of any neglect on their part (Regulation 3(4) & (5)). In addition, any person who without reasonable excuse obstructs anyone carrying out a function under the regulations is also guilty of an offence (Regulation 3(2)).
Regulation 4 covers enforcement and this is where potential confusion and possible problems arise. Regulation 4 states:
“4(1) A person, designated by the Secretary of State/Welsh ministers, may take such action as is necessary to enforce a closure or restriction imposed by regulation 2.
(2) Proceedings for an offence under regulation 3 may be brought any person designated by the Secretary of State/Welsh ministers.”
In England the Secretary of State issued a 'Designation letter' (on 22nd March):
“1. The Secretary of State makes the following designations in exercise of the powers conferred by regulation 4(1) and (2) of the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (“the Business Closure Regulations“).
2. An officer appointed by a local authority to enforce the Business Closure Regulations is designated by the Secretary of State, to take such action as is necessary to enforce a closure or restriction imposed by those regulations.
3. All police constables are designated by the Secretary of State, to take such action as is necessary to enforce a closure or restriction imposed by the Business Closure Regulations.
4. All Local authorities and all police forces are designated by the Secretary of State as able to bring proceedings for any offence under the Business Closure Regulations.”
The Secretary of State also issued Guidance at the same time:
Everyone has a duty to comply with the advice provided by the government in relation to COVID-19, in order to protect both themselves and others.
As of 2pm on 21 March 2020, closures are now enforceable by law in England and Wales due to the threat to public health. A business operating in contravention of the Health Protection (Coronavirus, Business Closures) Regulations 2020 will be committing an offence. As agreed with the devolved administrations these measures will be extended to Scotland and Northern Ireland by Ministerial Direction once the Coronavirus Bill is in force.
Environmental Health and Trading Standards officers will monitor compliance with these regulations, with police support provided if appropriate. Businesses that breach them will be subject to prohibition notices, and potentially unlimited fines. As a further measure, and if needed, businesses that fail to comply could also face the loss of their alcohol license.” (bold emphases in the original)
There is no reference to any “officer appointed by a local authority to enforce the Business Closure Regulations” in the regulations themselves, or the parent Public Health (Control of Disease) Act 1984 (“the 1984 Act”). Therefore, it would seem that this is any local authority officer appointed by the local authority for that purpose. Where a local authority runs Executive Arrangements, these are Executive functions (This is because the Local Authorities (Functions and Responsibilities) (England) Regulations 2000/2853 do not specify the Public Health (Control of Disease) Act 1984 in either schedule 1 or schedule 2 and therefore by virtue of S9D(2) Local Government Act 2000 are the responsibility of the executive), and the power to appoint such an officer would lie with the Senior Executive Member, which in England is the Leader or directly elected Mayor (See S9E Local Government Act 2000). In authorities running alternative arrangements (i.e. the committee system) the power to delegate will lie with full Council unless there is a specific delegation for such extraordinary requirements given to an officer of the authority under the Council’s existing Scheme of Delegations.
It would appear therefore that any officer would need to be appointed in that way. There is however, no limitation on the types of officers who can be appointed. The Guidance Note states that this will be monitored, and compliance enforced by, environmental health and trading standards officers, but there is no restriction to that effect within the regulations and therefore licensing officers and other local authority enforcement officers could be appointed by their authority.
The Guidance also refers to the issue of prohibition notices. Again, there is nothing specified in the legislation. There would be nothing to prevent a local authority officer or police constable issuing a letter or notice to the effect that continued use of the premises in contravention of the regulations is an offence. Beyond that, prohibition could be effected because the designated person
“may take such action as is necessary to enforce a closure or restriction imposed by regulation 2 (Regulation 4(1))”.
It is therefore important that local authorities and the police have a draft of a suitable notice if required (downloadable template provided here).
It would also be possible for a Health and Safety Inspector to issue a prohibition notice under section 22 of the Health and Safety at Work etc Act 1974 because continued use of the premises would “involve a risk of serious personal injury”.
At present that there does not appear to be any designation issued by the Welsh ministers, equivalent to the letter issued in England. This is surprising and may simply reflect my inability to find it on the Gov.wales website. I would anticipate that when it is published it will be in similar terms, and probably be accompanied by similar Guidance (there does not seem to be any reason to take a different approach in Wales).
Assuming that is the case, the situation will be very similar to that outlined above for England. The exception is that all Welsh County Councils and County Borough Councils run Executive arrangements. The principles of delegation from the elected Mayor, the Leader or Council Manager are also similar (See Ss 14 to 16 Local Government Act 2000).
Beyond that, the position in relation to enforcement is the same as outlined above for England.
Finally, what is the impact of these regulations (non-compliance) on any premises licence or club premises certificates issued under the 2003 Act?
On Saturday, the Times reported the following:
“Ken Marsh, head of the Metropolitan Police Federation, said: “It’s very simple. Under licensing laws we can revoke their licences, and then they are breaking the law.” (The Times 21st March 2020 Page 1).
Whilst it is true that any business operating in contravention of these regulations is committing a criminal offence, that does not allow the police to revoke their licence. A licence can only be revoked by the licensing authority following a review of that premises licence or club premises certificate. That would have to be a “normal” review under section 51 rather than a summary review under section 53A. This is because a summary review can only be sought in relation to serious crime or serious disorder. Although serious disorder is not defined, serious crime is by reference to section 81 (2) and (3) of the Regulation of Investigatory Powers Act 2000 and this offence does not appear to fall into those categories (Section 81 (2) and (3) of the Regulation of Investigatory Powers Act 2000):
(2) In this Act–
(a) references to crime are references to conduct which constitutes one or more criminal offences or is, or corresponds to, any conduct which, if it all took place in any one part of the United Kingdom would constitute one or more criminal offences; and
(b) references to serious crime are references to crime that satisfies the test in subsection (3)(a) or (b).
(3) Those tests are–
(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more;
(b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.
There is no doubt that breach of these regulations would be taken very seriously by a licensing authority on that subsequent review, but in the meantime the licence will continue to exist.
These are extraordinary powers for extraordinary times. It is disappointing that as a nation we have not heeded the sensible advice of the Government and these regulations have been required. It is hoped that they are complied with and common sense on the part of the public will prevail. Sadly, however I suspect that may not be the case and as a result there may be further Bulletins detailing further control powers in the coming days and weeks.
At this point I would like to pay tribute to all those working in local authorities and the NHS (in its widest sense including Public Health England and Public Health Wales) for their dedication and commitment to ensuring that the fabric of our society does not completely disintegrate at this troubling period.
Article by IoL President James Button.