Gary Grant, Barrister, Francis Taylor Building and Vice Chairman of the Institute of Licensing has authored this article following the annoucements by the Government this week and the subsequent publication of The Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020 (“the Tier 4 Regulations”) this morning.
Following the Prime Minister’s Santa Claus infuriating television announcement at 4pm on Saturday 19 December 2020, the Tier 4 Regulations were made at 6am on Sunday 20 December by the Health Secretary. They were published at around 6.57am and came into force 3 minutes later at 7am. This represents a speed of change that even globe-trotting reindeers will find a challenge.
The associated “Stay at Home” Guidance was published the preceding Saturday night. As always, the regulations are the law and not the Guidance.
The Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020 (“the Tier 4 Regulations”) make changes to the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (“the All Tiers Regulations”). They create a further Tier 4 of restrictions and place certain areas within that Tier. This is achieved by inserting a new Schedule 3A to the All Tiers regulations.
The Tier 4 regulations apply to England only. Separate regulations for Wales were made on 18 December (as amended the following day).
The enforcement powers under the All Tiers regulations will continue to apply to Tier 4.
They also amend the Health Protection (Coronavirus, Restrictions) (Obligations on Undertakings) (England) Regulations 2020 to clarify the obligations on certain undertakings (for which see Part 3 of the Tier 4 regulations).
This, necessarily hastily prepared, article will briefly mention the further restrictions on people movement and gatherings in Tier 4 but does not seek to deal with the Christmas non-relaxation or travel out of and into Tier 4 areas.
Its focus, instead, is on the restrictions that impact on business premises and services.
The new Tier 4 applies to all 32 London Boroughs and the City of London (including barrister haunts in the Inner and Middle Temples). It also covers these areas in the South East and East of England:
People movement and gatherings
In relation to people movement and gatherings, the Tier 4 regulations are a return to a similar past life under Lockdown 2. Part 1 and 2 of the new regulations, to which the reader must have regard before taking any steps, contain the full details and recognised exceptions.
In general, you must not leave your home or garden without a reasonable excuse. You must not meet with another person socially or undertake any activities with another person. However, you can exercise or meet in a public outdoor place with people you live with, your support bubble (or as part of a childcare bubble), or with one other person.
A reasonable excuse to leave your home includes (but is not limited to) specific purposes set out in the regulations such as for: work purposes, essential shopping (e.g. food, drink and medicines), education and childcare (schools remain open), to fulfil legal obligations (e.g. attending court), outdoor exercise or visiting some public outdoor places (e.g. parks, the countryside, public gardens, or outdoor sport facilities), medical reasons or for communal worship. Subject to limits on numbers, people may attend weddings and funerals.
With that very brief, and non-exhaustive, summary of the restrictions on people movement and gatherings, this article now turns to the impact of the Tier 4 regulations on business premises.
Restricted Businesses and Services
In a nutshell
Part 3 of the new Schedule 3A concerns closure of, and restrictions on, businesses. In a nutshell, non-essential retail must close but essential retail remains open. Leisure, sports and entertainment venues must close. Hospitality venues must close with the exception of providing food and drink for takeaway until 11pm, and click and collect and delivery services thereafter. Indoor attractions must close though outdoor grounds can stay open. Personal care facilities must also close. Community centres and halls must close except for a limited number of exempt activities, as set out below. Libraries can also remain open to provide access to IT and digital services - for example for people who do not have it at home - and for click-and-collect services.
In more depth
A person responsible for carrying on a restricted business, or providing a restricted service, in the Tier 4 area must “cease to carry on that business or provide that service”.
The following restricted businesses and services must cease trading without exception (unless they were to reconstitute themselves as a non-prohibited type of venue):
Nightclubs (etc), SEV’s, Shisha bars
This eclectic mix of indoor facilities must not operate:
With some minor modifications, familiar exceptions apply to the restrictions on the use of premises and businesses, including those relating to :
Pubs, bars, restaurants, social clubs, cafes and canteens
As with Tier 3, a person responsible for carrying on a restricted business must close any premises (or that part of it) in which food or drink are provided for consumption on the premises.
In addition to pubs, bars, restaurants, social clubs, cafes and canteens (with certain exceptions e.g. hospital cafes), this restriction also applies to hotel dining rooms and bars. However, food or drink provided by a hotel or other accommodation as part of room service is not to be treated as being provided for consumption on its premises.
References to food or drink being for consumption on premises include references to consumption on an adjacent area where: (a) seating is made available for its customers (whether or not by the business or the provider of the service), or (b) which its customers habitually use for consumption of food or drink served by the business or service.
Exceptions cater for users of motorway service areas, airports (and on airplanes), maritime ports, and international rail terminals.
Subject to the important exceptions discussed below, the restrictions also apply to businesses providing food or drink prepared on the premises for immediate consumption off the premises, but do not include:
Premises, such as restaurants, pubs, bars, social clubs, cafés or canteens are, however, permitted to sell food or drink (whether alcoholic or non-alcoholic) for consumption off the premises between 05:00 – 23:00hrs.
During the later hours, between 23:00 – 05:00hrs, premises may sell food or drink (alcoholic or non-alcoholic) only by:
Licensing Act 2003: off sales extensions
For the purposes of sections 172F to 172J of the Licensing Act 2003, where a restricted business or restricted service is carried on from, or provided at, licensed premises, the premises are to be treated as open for the purposes of selling alcohol at any time when the premises licence for those premises would, but for paragraph 11(1) of the Tier Regulations, authorise the sale by retail of alcohol for consumption on the premises.
Hotels, hostels, B&Bs, holiday apartments (etc.), campsites, caravan parks, boarding houses, canal boats must cease to carry on that business. However, certain exceptions are specified in cases including where the accommodation is used by people:
Goods for sale businesses, libraries, community centres & offices
Other than premises specified as permitted to remain open (set out below), premises offering goods for sale or for hire in a shop, or providing library services (subject to some exceptions), must cease to carry on that business or provide that service except :
This restriction does not prevent any business from continuing to provide hot or cold food for consumption off the premises, or goods or services to the homeless, or to open the premises for the purposes of making a film, television programme, audio programme or audio-visual advertisement.
Community centres must close, unless for a specified purpose including: for essential voluntary or urgent public support services (e.g. food banks), for education or training or support groups, registered childcare, weddings, funerals or commemorative events, voting or election counts.
Unless otherwise specified, other service providers, including, of utmost importance, lawyers’ offices, can theoretically remain open since they are not restricted businesses and do not offer “goods” for sale (assuming the legal advice proffered by solicitors and barristers is not properly to be considered as “goods”). However, this is subject to the important requirements relating to people movement and gatherings. It must be reasonably necessary for those attending the office to do so for work purposes and where it is not “reasonably possible” for the person to work, or to provide those services from home. (The guidance suggests that: “you can leave home for work purposes, where your place of work remains open and where you cannot work from home (including if your job involves working in other people’s homes)”. The ability to work remotely from home, increasingly honed by us all since March 2020, may impact on the statutory test of reasonableness.
Other premises that can remain open
Essential businesses and venues can remain open in Tier 4, namely:
Have a Merry Christmas and a Happy New Year. If work, and regulations, permit I expect we have all earned ourselves a little break to reacquaint ourselves with our families and the wonderful, though changing, world beyond COVID regulations.