By Sarah Barber, Jennifer Brown, Coronavirus: lockdown laws Daniel Ferguson
30 July 2021
Summary 1 What are lockdown laws? 2 Changes from 19 July 2021 3 The status of government guidance
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Number 8875 Coronavirus: lockdown laws
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2 Commons Library Research Briefing, 30 July 2021 Coronavirus: lockdown laws
Contents
1 What are lockdown laws? 6
1.1 Coronavirus restrictions regulations 6
1.2 Making and amending coronavirus restrictions regulations 7
1.3 Local lockdowns 9
1.4 Coronavirus Act 2020 11
2 Changes from 19 July 2021 13
2.1 England 13
2.2 Scotland 17
2.3 Wales 20
2.4 Northern Ireland 21
3 The status of government guidance 24
3.1 Types of guidance 24
3.2 Legal status of the guidance 25
3.3 Restrictions imposed by businesses 28
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Summary
Hundreds of UK laws have been made in response to the coronavirus pandemic.1 Many of these laws could be described as “lockdown laws”. In this briefing the term “lockdown law” refers to coronavirus restrictions regulations relating to movement, gatherings and high-street business operations.
Coronavirus restrictions regulations
Coronavirus restriction regulations are a form of secondary legislation made using powers in public health legislation. They place restrictions and requirements on individuals designed to help slow the spread of coronavirus. There are four main types of coronavirus restriction regulations:
• Lockdown laws: sets various rules connected to movement, gatherings and the operation of high-street businesses. • Face coverings: require people to wear face coverings in certain public spaces. • Self-isolation: require those who have tested positive for the coronavirus and their close contacts to self-isolate. • International quarantine: require those arriving in the UK from specified countries to quarantine.
A collection of Library briefings discussing coronavirus restrictions can be found on our website. A collection of coronavirus legislation has been compiled on legislation.gov.uk.
What lockdown rules currently apply across the UK?
England The UK Government revoked England’s lockdown laws on 19 July 2021. This means there are no longer any lockdown laws in force in England, although other types of coronavirus restrictions are still in force (notably self-isolation and international quarantine restrictions).
The Library has published a history of English lockdown laws which explains the laws that were in force between March 2020 and July 2021.
1 See: legislation.gov.uk, coronavirus legislation, undated
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Scotland Scotland moved to level 0 lockdown restrictions on 19 July 2021. This means that indoor and outdoor gatherings are still subject to restrictions in Scotland. The Scottish Government’s timetable for coronavirus restrictions says “all major COVID-19 restrictions will be lifted” on 9 August (subject to review).
Wales Wales moved to level one coronavirus restriction on 17 July. This means that there are no legal limits on people meeting outdoors, up to six people can meet indoors, and most businesses can open. Subject to review, the Welsh Government have planned to move to level 0 where most coronavirus restrictions will be lifted on 7 August.
Northern Ireland A number of restrictions on gatherings and businesses remain in place Northern Ireland. Some restrictions were lifted on 26 July 2021.
Government guidance There has been a huge range of government guidance relating to coronavirus. Most coronavirus guidance is a mixture of information on the law and public health advice.
Government guidance should indicate something is public health advice instead of law by the way it is written but throughout the pandemic, concerns have been expressed that discerning which instructions are required under law and which are public health advice can be difficult.
As the legal coronavirus restrictions have begun to be lifted, the guidance has become more advisory. In England, where most legal restrictions have been lifted, the guidance places a greater emphasis on "personal responsibility.”
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1 What are lockdown laws?
Hundreds of UK laws have been made in response to the coronavirus pandemic.2 Many of these laws could be described as “lockdown laws”. In this briefing the term “lockdown law” refers to coronavirus restrictions regulations relating to movement, gatherings and high-street business operations.
Public health is a devolved policy area in Scotland, Wales and Northern Ireland. The Scottish and Welsh governments and the Northern Ireland Executive are responsible for the coronavirus response in their respective nations. This means there have been four separate legal arrangements for lockdowns in the UK, one for each UK nation.
1.1 Coronavirus restrictions regulations
Lockdown laws were set out in ‘coronavirus restriction regulations’, secondary legislation made using powers in public health legislation.
There have been many “coronavirus restrictions regulations”. The Library does not describe all coronavirus restriction regulations as “lockdown laws” (though others might). The Library distinguishes between four main types of coronavirus restrictions regulations: lockdown, face coverings, international travel and self-isolation.
Types of national coronavirus restrictions regulations
There are three categories of lockdown restriction: • Movement restrictions: People have been required to “stay home” or “stay local” or stay in the United Kingdom. Lockdown • Gatherings restrictions: People have been prohibited from meeting in groups. They have also restricted people from mixing with those they do not live with or have not formed a support bubble with. Often restrictions have distinguished between indoor and outdoor gatherings. • Business restrictions: Certain businesses have been required to close or operate with restrictions.
2 See: legislation.gov.uk, coronavirus legislation, undated
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Face Most people in the UK are required to wear a face covering coverings in shops, on public transport and in other public spaces (like museums and libraries) when they have been open. Some people are exempt from the requirement for medical or emergency reasons.
There have been restrictions on international travel International throughout the pandemic. Currently, there is a traffic light travel system for travel to different countries – requirements for travel, such as testing and self-isolation will depend on whether the country some is arriving from is designated as green, amber or red. More information on this is provided in the Library briefing, Coronavirus: International Travel FAQs for England. People must self-isolate for ten days if they are notified that Self-isolation they tested positive for Covid-19 or that they are the close contact of a person who tested positive (subject to some exemptions). More information is provided in the Library’s
briefing Coronavirus: Self-isolation and Test and Trace Support Payments. Sometimes the same set of regulations contain more than one type of coronavirus restrictions. For example, The Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020 contains Welsh lockdown, face covering and self-isolation laws. In England there have been separate regulations for each of the main categories of coronavirus restrictions.
1.2 Making and amending coronavirus restrictions regulations
The UK and Welsh governments make and amend coronavirus restrictions regulations using an “urgent” power in the Public Health (Control of Diseases) Act 1984. 3 The Scottish and Northern Irish Governments are using equivalent powers (which, as discussed below, are derived from the Coronavirus Act 2020). 4
The 1984 Act (as amended) allows both the UK and Welsh governments to make regulations in response to the spread of an infectious disease. 5 It gives the UK and Welsh governments powers to include a wide variety of measures
3 See for example: Introductory text, The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 4 See for example: Introductory text, The Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020; Introductory text, The Health Protection (Coronavirus, Restrictions) (No. 2) Regulations (Northern Ireland) 2020 5 s45C1), Public Health (Control of Disease) Act 1984
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in these regulations. For example, regulations can create “restrictions or requirements” on “persons, things or premises” and create offences. 6
Parliamentary scrutiny Section 45R of the 1984 Act allows the UK Government to make and bring into force coronavirus regulations for England without prior parliamentary scrutiny. 7 However, Parliament must approve the regulations within 28 sitting days of them being made. 8
In September 2020, following concerns about the UK Government’s approach to making and amending lockdown laws, 9 the then Secretary of State for Health and Social Care, Matt Hancock, promised that “for significant national measures with effect in the whole of England or UK-wide” the Government would hold votes (wherever possible) before regulations come into force. 10 He also promised to provide Parliament with more opportunity to question the Government’s scientific advisors. 11
MPs have voted ahead of new English lockdown measures coming into force three times: in early November 2020, before England entered its second national lockdown, In December 2020 (at the end of the second lockdown), to introduce the second tier-system and in mid-March 2021 to begin easing restrictions at the end of the third national lockdown. 12 MPs were recalled from Christmas Recess in early-January 2021 and voted for a second national lockdown in England on the day it started. 13
The process usually followed when lockdown law changes are made for England.
First, the Government announces an upcoming change in the law. Currently, the ‘roadmap regulations’ set out the different ‘steps’ of restrictions that may be applied and the Government’s roadmap states the earliest date on which the step may be introduced. The Government has announced, about a week before this date, whether the move to the next step will take place. Then, the Government publishes guidance on the prospective law. The Government updates its main online guidance page(s). This normally happens within twenty-four hours of an announcement. More specific and detailed guidance is amended in the days and weeks that follow. There are generally no other sources of advice on changes in coronavirus restrictions until Government advice was updated.
6 s45C(3)(c) and s45F, Public Health (Control of Disease) Act 1984 7 s45R, Public Health (Control of Disease) Act 1984 8 s45R(6), Public Health (Control of Disease) Act 1984 9 BBC News, Coronavirus: Support grows for rebel MPs over law, 27 September 2020 10 HC Deb, Coronavirus Act 2020 (Review of Temporary Provisions), 30 September 2020, cc389 11 Ibid 12 HC Deb, Public Health, 4 November 2020; HC Deb, Public Health, 1 December 2020; HC Deb, Coronavirus, 25 March 2021 13 HC Deb, Covid-19, 6 January 2020
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The Government then makes regulations for the prospective change. Normally, regulations that will have a “significant national effect” are published a few days in advance of coming into force. Other regulations are made and bought into force without parliamentary debate. The regulations are published on www.legislation.gov.uk. They are most easily found on the page displaying secondary legislation with the word “coronavirus” in the title. If the regulations are amendment regulations, the online version of the existing regulations they change will be updated within a few days, showing tracked changes over time. Parliament votes to approve the regulations. MPs will normally debate regulations that have a “significant national effect” at least the day before they come into force. MPs must approve these regulations if they are to have effect. Regulations bought into force without prior parliamentary approval must be approved within 28 days of them coming into force, otherwise they cease to have legal effect. The Government normally schedules time for the House of Commons to consider these regulations within a fortnight of them being made. This period can be longer if Parliament is in recess. MPs might not actually vote on regulations. The Speaker (or Deputy Speaker) can determine that there is enough support to pass regulations without a vote. More information on how this process works can be found on Parliament’s website.
1.3 Local lockdowns
There are three types of law that have been used to impose local lockdowns: local coronavirus restriction regulations, local authority directions and government directions.
Local coronavirus restriction regulations The first local lockdowns were imposed via standalone coronavirus restriction regulations. These laws were made by national governments, but only apply in a specified “protected area”.14 The UK nations moved away from this legislative approach in the autumn of 2020.
The UK Government favoured the use of a tiered system for local lockdown restrictions in the autumn of 2020. 15 England’s second tier system was legislated for via one set of coronavirus restrictions regulations separated
14 See for example: The Health Protection (Coronavirus, Restrictions) (North East and North West of England) Regulations 2020 15 HC Deb, Public Health, 4 November 2020, cc334
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into schedules assigning differing rules to specific areas.16 The Scottish and Welsh Government imposed similar systems legislated for in much the same way.17
Local lockdowns were applied across local authorities.18 In England this was normally upper-tier local authorities (counties and unitary authorities). However, the UK Government did use postcodes to construct a unique “protected area” in the Leicester City region between 4 July and 18 July.19
Local authority directions Local authorities in England and Scotland have powers to issue “directions” imposing prohibitions, requirements or restrictions on individuals, premises, events and public spaces. 20 Local authorities can use the powers to impose local lockdown restrictions in their area. The UK and Scottish Governments have powers to compel local authorities to use these powers. 21 The UK Government has issued guidance on the English local authority powers which provides further information.
English local authorities still have these powers. The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 have been retained and will remain in force until September 2021. Sajid Javid, the Secretary of State for Health and Social Care, told the House of Commons that the English local authority powers would stay in place “at least until the end of September” 2021. He said that there was “no intention” that they will be used but that its necessary “to have powers in place just in case”.22
UK Government directions The UK Government can issue directions restricting access to public outdoor places (like a beach or park). 23 The power to issue directions is set out in the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020. Most of the provisions in these Regulations have been revoked but the
16 The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 17 Scottish Government, Scotland’s strategic framework, 23 October 2020; The Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020 18 See for example: r1(4), The Health Protection (Coronavirus, Restrictions) (North East and North West of England) Regulations 2020 19 Schedule 1, Part 1, The Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020 (revoked) [as made] 20 The Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020; The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 21 r4, The Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020; r3, The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 22 HC Deb, Covid-19 Update, 5 July 2021, c593 23 Note: Directions cannot be issued for the Crown Estate, see r6(3), The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020
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power to restrict access to public outdoor places remains in force. However, at the time of writing, the power has never been used
The directions must be in response to a “serious and imminent threat to public health” and to prevent, protect against or control the spread of coronavirus. 24 Directions must be proportionate, and the Government must consult public health officials before issuing them. 25
Once a space is closed via direction the public cannot enter or remain there without a “reasonable excuse”. 26 Those who live, work or own parts of the land have a reasonable excuse to be there. It is also reasonable to travel through restricted land to get to your home. 27
1.4 Coronavirus Act 2020
Lockdown laws in England and Wales are not legally related to the Coronavirus Act 2020. As explained above, lockdown laws are made using powers in the Public Health (Control of Diseases) Act 1984.
Lockdown laws in Scotland and Northern Ireland are connected to the Coronavirus Act 2020. Sections 48 and 49 (which introduce Schedules 18 and 19) of the 2020 Act grant Scottish and Northern Irish ministers 28 similar public health powers to those English and Welsh ministers have through 1984 Act.
What does the Coronavirus Act 2020 do? The Coronavirus Act 2020 is a wide-ranging piece of legislation. Powers in the 2020 Act have been used to close schools, set up the job retention scheme and allowed the Government to postpone the 2020 local elections.
The Government has summarised the 2020 Act’s provisions into five key areas:
1. increasing the available health and social care workforce – for example, by removing barriers to allow recently retired NHS staff and social workers to return to work (and in Scotland, in addition to retired people, allowing those who are on a career break or are social worker students to become temporary social workers)
2. easing the burden on frontline staff – by reducing the number of administrative tasks they have to perform,
24 r6(1), The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 25 Ibid, r6(4), The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 26 r6(11), The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 27 r6(12), The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 28 Coronavirus restriction regulations in Northern Ireland are made using powers in the Public Health Act (Northern Ireland) 1967, which were inserted by section 48 and schedule 18 of the Coronavirus Act 2020.
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enabling local authorities to prioritise care for people with the most pressing needs, allowing key workers to perform more tasks remotely and with less paperwork, and taking the power to suspend individual port operations.
3. containing and slowing the virus – by reducing unnecessary social contacts, for example through powers over events and gatherings, and strengthening the quarantine powers of police and immigration officers.
4. managing the deceased with respect and dignity – by enabling the death management system to deal with increased demand for its services.
5. supporting people – by allowing them to claim Statutory Sick Pay from day one, and by supporting the food industry to maintain supplies. 29
The Library published a series of briefings on the Coronavirus Bill 2019-21 before it was considered by the House and passed into legislation. These briefings provide more information on the Bill’s provisions.
The Government has been publishing reports every two months on the status of the non-devolved provisions in the 2020 Act. As part of this publication schedule it published a one year review of the 2020 Act in March 2021.
29 Department of Health & Social Care, What the Coronavirus Bill will do: contents of the Bill, 26 March 2020
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2 Changes from 19 July 2021
Significant changes to lockdown laws in England, Scotland and Wales came into force in the 17-19 July period. In England, this means that the majority of legal restrictions no longer apply, and in Scotland and Wales a large number of restrictions have been lifted. Lockdown laws continue to be in place in Northern Ireland, but relaxation of these (subject to review) is planned on 26 July.
In light of the major changes in restrictions, this section sets out, where relevant, the measures in place before and after 19 July 2021.
2.1 England
On 19 July, the whole of England moved to step four of the UK Government’s roadmap out of lockdown (the UK Government’s spring 2021 lockdown easing policy).30 All legal restrictions on indoor and outdoor gatherings, business closures and capacity limits were lifted.
The Health Protection (Coronavirus, Restrictions) (Steps etc.) (England) (Revocation and Amendment) Regulations 2021 revoked The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (Roadmap Regulations) alongside a number of other Regulations, such as those that require the wearing of face coverings, and businesses to take information for Test and Trace purposes.
The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 will remain in force until September 2021. This means that local authority powers to make directions to premises and events remain. Sajid Javid (Secretary of State for Health) has said that there is “no intention” that they will be used but that it’s necessary “to have powers in place just in case”.31
Position prior to 19 July Prior to 19 July, step three coronavirus restrictions applied across England. Schedule 3 of The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 set out the requirements under Step Three.
30 Cabinet office, COVID-19 Response - Spring 2021 (Roadmap), 22 February 2021 31 HC Deb, Covid-19 Update, 5 July 2021, c593
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Under these restrictions:
• Outdoor gatherings of more than 30 people and indoor gatherings of more than six people (or two households) were prohibited, unless exempted; • Hospitality venues could only provide table service, and there were capacity limits on venues; • Certain businesses, such as nightclubs and sexual entertainment venues remained closed. On 21 June, amendments came into force to the Roadmap regulations to remove capacity limits for wedding and civil partnership ceremonies, and for commemorative events after a person’s death. The changes also make provision for the holding of large event pilots.32
Alongside the legislation on coronavirus restrictions, the Government published guidance on further measures individuals should take to reduce the spread of Covid-19, such as social distancing and handwashing.
Changes on 19 July From 19 July, all coronavirus restrictions in relation to gatherings, businesses and events were lifted. The Health Protection (Coronavirus, Restrictions) (Steps etc.) (England) (Revocation and Amendment) Regulations 2021 revoked The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021.
This legislation also removed requirements to wear face coverings in public places.
The Government guidance document, Coronavirus: how to stay safe and help prevent the spread, set out the measures that are still in place in step four:
• testing when you have symptoms and targeted asymptomatic testing in education, high risk workplaces and to help people manage their personal risk.
• isolating when positive or when contacted by NHS Test and Trace.
• border quarantine: for all arriving from red list countries and for those people not fully vaccinated arriving from amber list countries.
• cautious guidance for individuals, businesses and the vulnerable whilst prevalence is high including:
32 Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) (No. 2) Regulations 2021
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– whilst Government is no longer instructing people to work from home if they can, Government would expect and recommend a gradual return over the summer – Government expects and recommends that people wear face coverings in crowded areas such as public transport; – being outside or letting fresh air in – minimising the number, proximity and duration of social contacts. – encouraging and supporting businesses and large events to use the NHS COVID Pass in high risk settings. The Government will work with organisations where people are likely to be in close proximity to others outside their household to encourage the use of this. If sufficient measures are not taken to limit infection, the Government will consider mandating certification in certain venues at a later date.33
The Government will instead enable people to make informed decisions about how to manage the risk to themselves and others. The Government will provide guidance to the public and to businesses on how they can help reduce the spread of COVID-19 and mitigate the risk of a resurgence which puts the NHS under unsustainable pressure.
The Government have said that whilst legal restrictions have been lifted, cases of Covid-19 are rising, and everyone needs “to continue to act carefully and remain cautious.” The Government Summer Roadmap sets out that people should make “informed decisions about how to manage the risk to themselves and others.” The Roadmap sets out that the following behaviours are “beneficial:”
1. Meeting in well-ventilated areas where possible, such as outdoors or indoors with windows open.
2. Wearing a face covering where you come into contact with people you don’t normally meet in enclosed and crowded spaces.
3. Washing your hands with soap and water or using hand sanitiser regularly throughout the day.
4. Covering your nose and mouth when you cough and sneeze.
33 Cabinet Office, Coronavirus: how to stay safe and help prevent the spread, 19 July 2021
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5. Staying at home if unwell, to reduce the risk of passing on other illnesses onto friends, family, colleagues, and others in your community.
6. Considering individual risks, such as clinical vulnerabilities and vaccination status.34
The Government guidance document, Coronavirus: how to stay safe and help prevent the spread, provides more specific information for individuals, business and venues, on testing and face mask wearing, and guidance for clinically extremely vulnerable individuals.
Self-isolation Under the Health Protection (Coronavirus, Restrictions) (Self-isolation) (England) Regulations 2020, people are still required to self-isolate if they are notified that they have tested positive for Covid-19 or are told by NHS Test and Trace that they have been in close contact with a person who has tested positive. The duty to self-isolate does not apply to people who are notified by the NHS COVID-19 app.
Close contacts who are taking part in approved testing scheme do not need to self-isolate. The Government is running a daily contact testing study where some close contacts are given the choice to take daily rapid lateral flow tests instead of self-isolating.
On 19 July 2021, the Government announced that fully vaccinated critical workers and frontline health and care staff will be able to leave self-isolation to go to work in exceptional circumstances.
More information on self-isolation is provided in the Library briefing, Coronavirus: Self-isolation and Test and Trace Support Payments.
Future restrictions The Government has said that it wants the lifting of coronavirus restrictions should be “irreversible.”35 However, The Summer Roadmap notes the possibility that social and economic restrictions may need to be reimposed in the future:
The Government will maintain contingency plans for reimposing economic and social restrictions at a local, regional or national level if evidence suggests they are necessary to suppress or manage a dangerous variant. Such measures would only be re-introduced as a last resort to prevent unsustainable pressure on the NHS. The Government will also maintain the current regulations until 28
34 Cabinet Office, Guidance: COVID-19 Response: Summer 2021, 19 July 2021 35 DHSC, Oral statement to Parliament: 19 July remains our target date for ending restrictions, 28 June 2021
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September that enable local authorities to respond to serious and imminent public health threats. The Government will also publish an updated COVID-19 contain outbreak management framework for local areas in due course.36
As noted in section 1.3 of this paper, local authorities’ powers to issue “directions” imposing prohibitions, requirements or restrictions on individuals, premises, events and public spaces will remain in place until at least September.37 The Health Secretary has said that there is “no intention” that they will be used but that its necessary “to have powers in place just in case”.38 The UK Government has issued guidance on the English local authority powers which provides further information.
2.2 Scotland
On 19 July 2021, the whole of Scotland moved into Protection Level 0.39 This means there are still a variety of legal restrictions in place. However, the move does mean that the rules have been relaxed for areas that were previously in levels 1 and 2 (the whole of mainland Scotland).
Position prior to 19 July 2021 Prior to 19 July 2021, Scotland had regional restrictions. Parts of Scotland, such as Aberdeen, were in Level 1 and other parts, such as Edinburgh and Glasgow, were in Level 2. The Scottish islands were in Level 0.
Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 set out the legal rules that applied in each protection level. They also contained legal rules that applied across all of Scotland, such as the obligation to wear face coverings in a public place.40 Some of the key legal restrictions included:
• Restrictions on indoor and outdoor gatherings (varied by level); • Business closures (varied by level); • Restrictions on opening hours for hospitality businesses (level 1 and 2); • Restrictions on live event and stadia capacities (varied by level); • Requirement to socially distance on business premises (all levels); and • Requirement to wear face coverings in certain public places (all levels).
36 Cabinet Office, Guidance: COVID-19 Response: Summer 2021, 19 July 2021 37 The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 38 HC Deb, Covid-19 Update, 5 July 2021, c593 39 Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No. 32) Regulations 2021 40 Reg. 3 and Schedules 1-7, Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020
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In addition, there was a range of public health guidance. This included:
• Guidance on working from home where possible (all levels); and • Guidance on social distancing in public outdoor places (all levels).
Archived versions of the Scottish Government’s guidance on protection levels can be accessed using the web archive of the National Library of Scotland.
Changes from 19 July 2021 On 13 July 2021, the First Minister of Scotland, Nicola Sturgeon, announced that from 19 July the whole of Scotland would move into Protection Level 0. The First Minister said the law for level 0 would be strengthened, including restrictions on opening hours for hospitality businesses. She also said the guidance on social distancing would not be relaxed as much as anticipated.
The move to level 0 means that, unlike England, much of Scotland’s lockdown restrictions are still imposed by law with additional guidance in some areas.
The Scottish Government has published detailed guidance on the restrictions in place in level 0.
Gatherings Under level 0, there are legal restrictions on gatherings.41 The limits are:
• 8 people from no more than 4 households for indoor private gatherings; • 10 people from no more than 4 households for indoor public gatherings; • 15 people from no more than 15 households for outdoor gatherings.
Children under the age of 12 do not need to be included when counting either the number of people or the number of households in any of these settings.
There is guidance on social distancing for individuals which varies depending on the setting. The Scottish Government guidance for level 0 says:
• Distancing is not required for private gatherings (indoor or outdoor); • Distancing of 1 metre is required between groups of up to 15 people for outdoor public gatherings; and • Distancing of 1 metre is required between household groups for indoor public gatherings.
There is a legal obligation for businesses to ensure social distancing on their premises (see below).
41 Part 3 of Schedule 1, Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020
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Business closure Under level 0, a small number of businesses are still legally required to close, including nightclubs, dance halls, discos and sexual entertainment venues.42
From 19 July, there has been a requirement for food and drink businesses, such as restaurants and pubs to close between 00:00 and 04:00. There are exceptions for takeaways as well as for certain settings, such as cinemas.43
Business restrictions Under level 0, businesses have a range of legal obligations. These include:
• Operating table service (for food and drink businesses); • Ensuring social distancing between people on its premises and people waiting to access its premises; and • Collecting customer information for Test and Protect (hospitality).44
From 19 July, the required distance for social distancing purposes is 1 metre for all businesses. For outdoor gatherings, businesses only need to ensure a distance of 1 metre between groups of up to 15 people, rather than between household groups as is the case for indoor gatherings.45
Businesses also have a legal duty to consider any guidance issued by the Scottish Government, although the guidance cannot be enforced.46 The Government have published statutory guidance for tourism and hospitality.
Going to work On 13 July 2021, the First Minister Nicola Sturgeon said that while the Scottish Government had intended to lift the guidance on working from home from level 0, this had been postponed until at least 9 August 2021 when most legal restrictions are expected to be lifted.47
As such, the guidance continues to say that people in Scotland should work from home if they are able to do so. The Scottish Government has published specific guidance on working from home.
42 Part 1 of Schedule 1, Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 43 Para. 2A, Schedule 1, Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 44 Part 2 of Schedule 1, Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 45 Para. 3, Schedule 1, Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 46 Para. 4, Schedule 1, Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 47 Scottish Government, Coronavirus (COVID-19) update: First Minister's statement, 13 July 2021
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Face coverings The legal obligation to wear face coverings in certain public places, including shops, restaurants and public transport, continues to apply in Scotland.48
Self-isolation In Scotland, unlike in England and Wales, there has never been a specific legal obligation to self-isolate. However, the Scottish Government’s guidance on self-isolation clearly states that anyone who tests positive or who is a close contact of a person who tests positive must self-isolate for 10 days.
Future lifting of restrictions On 22 June 2021, the Scottish Government published an update to its strategic framework setting out the conditions for moving ‘beyond level 0’ and lifting the remaining legal restrictions.
In the statement on 13 July, Nicola Sturgeon said the Scottish Government still expects to be able to move to ‘beyond level 0’ on 9 August 2021. However, she said that some legal restrictions, like the requirement to wear face coverings, could remain in place “for some time to come”.49
As noted above, the First Minister also said that the guidance on working from home is also expected to be lifted on 9 August 2021.
2.3 Wales
Wales’ lockdown laws are in The Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020 (The Welsh Regulations). The Welsh Regulations also contain provisions relating to Welsh self-isolation and face coverings rules. The regulations will expire on the 27 August 2021 unless revoked or replaced before this time.
Welsh lockdown restrictions are split into four “levels”. Like the steps in the English Roadmap Regulations, the levels in the Welsh Regulations are set out in its Schedules (Schedule 1,2,3,3A and 4). On 17 July, the whole of Wales moved to level 1.
Under level 1 restrictions:
• up to 6 people can meet indoors in private homes;
48 Schedule 7, Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 49 Scottish Government, Coronavirus (COVID-19) update: First Minister's statement, 13 July 2021
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• No restrictions on the number of people who can meet outdoors;
• All businesses may open except nightclubs and adult entertainment venues; and
• Large indoor events for 1000 people sitting, or 200 standing can restart (subject to a covid risk assessment);
Welsh Government guidance on all four levels and the current restrictions in Wales is available on the Welsh Government website (the latter link should always direct to the most up to date guidance).
Face coverings On 11 July, the Welsh Government announced that face coverings will continue to be required in certain indoor public places. In alert level one face coverings are mandatory for adults in indoor public places, such as on public transport and in shops (unless there is a reasonable excuse not to wear one).
Future lifting of restrictions It is planned, subject to conditions, that the whole of Wales will move to level 0 where all legal restrictions on gatherings and businesses will be lifted on 7 August 2021.
On 14 July, in a statement to the Senedd, the First Minister, Mark Drakeford said that whilst level 0 would mean that all restrictions on gatherings and businesses would be lifted, other measures will remain in places, such as the wearing of face coverings in public places, and the advice to work from home if possible.50
More information about the move to level 0 restrictions and the future restrictions is provided in the Welsh government’s document, Coronavirus Control Plan: Alert Level Zero.
2.4 Northern Ireland
There are still a variety of legal restrictions in place in Northern Ireland. Some of these rules were relaxed on 26 July. The Executive will make a decision on further relaxations on 12 August 2021.
Current rules Northern Ireland’s lockdown rules continue to be set out in legislation and public health guidance. The main piece of legislation is the Health Protection
50 Welsh Government, Oral Statement: The Coronavirus Control Plan, 14 July 2021
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(Coronavirus, Restrictions) Regulations (Northern Ireland) 2021. Guidance on the restrictions is published on the nidirect website.
Gatherings In Northern Ireland there are legal restrictions on gatherings in various settings.51 In private dwellings, the restrictions are:
• 6 people from 2 households indoors; • 15 people from any number of households outdoors;
Children under 12 do not count as part of the total number of people.
There is no legal obligation to socially distance in private dwellings. However, the guidance on lockdown measures says people should socially distance and maintain good ventilation.
In other settings, the restrictions are:
• 15 people indoors without a risk assessment; • 30 people indoors without a risk assessment;
Indoor gatherings of more than 15 and outdoor gatherings of more than 30 are permitted if the organiser undertakes a risk assessment and puts in place protective measures.
A range of businesses have a legal obligation to ensure social distancing on their premises (see below).
Business closure In Northern Ireland a small number of businesses are still legally required to close, including nightclubs, conference halls.52
Business restrictions In Northern Ireland there are a variety of legal restrictions on businesses.53 The type of restrictions that apply vary from one business to another.
For food and drink businesses (restaurants, cafes etc), restrictions include:
• Carrying out a risk assessment and determining maximum capacities; • Ensuring social distancing of one metre between household groups; • Operating only by table service; • Collecting customer details for testing and tracing; • Prohibiting dancing and the playing of music; and
51 Part 3, Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2021 52 Schedule 1, Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2021 53 Parts 2 and 5, Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2021
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• Taking all reasonable measures to limit the transmission of Covid-19.
Restrictions on other types of businesses include:
• Indoor attraction businesses such as museums and cinemas must ensure social distancing of one metre between household groups and must collect customer details for testing and tracing; and • Accommodation providers must collect customer details for testing and tracing and ensure that people do not gather in groups of more than six people or from more than two households.
Going to work In Northern Ireland there is no legal prohibition on going to work. However, the guidance on lockdown measures says people should continue to work from home if they are able to do so.
Face coverings In Northern Ireland there is a legal requirement for people to wear face coverings on public transport and in food and drink businesses such as restaurants and pubs. People who provide close contact services, such as hairdressers must also wear face coverings.
The rules are set out in the Health Protection (Coronavirus, Wearing of Face Coverings) Regulations (Northern Ireland) 2020.
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3 The status of government guidance
Throughout the Covid-19 pandemic, the UK and devolved governments have published a wide range of public health guidance.
In most cases, the guidance has contained information on the legal requirements that apply to individuals as well as public health advice they should follow. The guidance has often used different language when describing legal obligations (“must”) and public health advice (“should”). However, there has been criticism that the guidance has at times failed to distinguish between legal requirements and advice.54
Determining the legal status of the guidance is not always straightforward. Guidance does not generally have legal force. However, in certain cases the lockdown legislation has required businesses and other organisers of large gatherings to have regard to the guidance. Moreover, it has been suggested that non-compliance with the guidance might indicate that employers are breaching their obligations under health and safety law (see further below).
As governments have begun to lift legal restrictions, more emphasis is being placed on public health advice. The UK Government’s Summer 2021 Roadmap characterises this as a shift from “legal restrictions” to “informed choices”.55 The language of the new guidance for Step 4 is also less prescriptive with an emphasis being placed on “personal judgment”.
As lockdown laws are lifted more of the guidance will become purely advisory and more individuals and businesses will have more discretion.
3.1 Types of guidance
The UK and devolved governments have published a large number of guidance documents on Covid-19. These range from high-level guidance on lockdown restrictions to guidance for specific settings or groups of people.
The key guidance documents include the general guidance on lockdown measures and the guidance for businesses on safe working practices. These are set out in the box below.
54 See e.g. Joint Committee on Human Rights, The Government’s response to COVID-19: human rights implications, HC 265, 21 September 2020; Lords Constitution Committee, COVID-19 and the use and scrutiny of emergency powers, HL Paper 15, 10 June 2021; Tom Hickman QC, The Use and Misuse of Guidance during the UK's Coronavirus Lockdown, SSRN, 9 September 2020 55 HM Government, COVID-19 Response: Summer 2021, July 2021, para. 17
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Key guidance documents
England:
• Coronavirus: how to stay safe and help prevent the spread Public health advice for individuals on ways to stay safe in Step 4. Also includes information on self-isolation, which is still a legal requirement. • Working safely during coronavirus (COVID-19) Public health advice for businesses on safe working practices in Step 4. Reflects health and safety law obligations in places (e.g. ventilation).
Scotland:
• Coronavirus (COVID-19) protection levels: what you can do Mixture of public health advice and an overview of legal restrictions under protection level 0. • Coronavirus (COVID-19): general guidance for safer workplaces Mixture of public health advice and an overview of legal restrictions under Scotland’s lockdown laws and general health and safety law.
Wales:
• Restrictions from 17 July: summary Mixture of public health advice and an overview of legal restrictions under alert level 1. • Keeping Wales safe at work Mixture of public health advice and an overview of legal restrictions under Wale’s lockdown laws and general health and safety law. There is separate guidance on the legal obligation to minimise coronavirus risks in regulated premises.
Northern Ireland:
• Coronavirus (COVID-19) regulations and guidance: what they mean for you Mixture of public health advice and an overview of legal restrictions under Northern Ireland’s lockdown laws. • Coronavirus: Working safely in different business settings Mixture of public health advice and an overview of legal restrictions under Northern Ireland’s lockdown laws and health and safety laws.
3.2 Legal status of the guidance
As a general rule, Government public health guidance does not have any legal status and cannot be enforced. At times this is made explicit on the face of the guidance. The UK Government’s guidance on working safely explains:
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This guidance does not supersede your existing legal obligations relating to health and safety, employment and equalities duties. It’s important that as a business or an employer you continue to comply with your existing obligations. This includes those relating to equality between individuals with different protected characteristics. This contains non-statutory guidance to take into account when complying with these existing obligations.56
However, there are a number of circumstances in which guidance can either reflect legal obligations or can itself be given special legal status.
Guidance reflecting lockdown laws While the guidance contains information that is simply public health advice, they also contain information on legal obligations under lockdown laws. This should be made clear in the language the guidance uses. Legal obligations will often be preceded by phrases like “it is illegal to” or “you must” while advice is preceded by phrases like “you should” or “it is recommended”.
Whether a restriction is implemented through advice or law will differ across the UK. For example, in Scotland there is a legal obligation to socially distance on business premises but no legal obligation to self-isolate. By contrast, in England there is no legal obligation to socially distance but there is an obligation to self-isolate. In both cases the guidance contains information on social distancing and self-isolation but the extent to which these reflect legal obligations will be different.
In England, where the majority of lockdown legislation has been revoked, the guidance now primarily consists of advice with the exception of self-isolation.
Guidance is given legal status by lockdown laws In some cases, the lockdown laws have required businesses or other relevant people to have regard to guidance issued by the government.
In Scotland and Wales, businesses have obligations to take all reasonable measures to minimise the risk of the spread of coronavirus. In assessing what measures to take, they must have regard to relevant government guidance.57
In Northern Ireland, food and drink businesses and organisers of large gatherings have an obligation to take all reasonable measures to limit the risk coronavirus. However, there is no obligation to specifically consider government guidance.58
56 Department for Business, Energy and Industrial Strategy (BEIS), Working safely during coronavirus (COVID-19): Offices, factories and labs, 14 July 2021 57 Para. 4 of Schedule 1, Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020; Reg. 18, Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020 58 Reg. 9(5), Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2021
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In England, where the majority of lockdown laws have been repealed, there is no longer an obligation for any business or individual to consider government guidance.
Guidance reflects health and safety law The Health and Safety at Work etc. Act 1974 (and the equivalent devolved legislation in Northern Ireland) creates a legal duty on employers to protect the health and safety of staff and customers so far as reasonably practicable. The Act is supplemented by more detailed secondary legislation.
In places, the UK and devolved governments’ guidance for businesses reflects obligations businesses have under health and safety law. These include:
• Carrying out a health and safety risk assessment59 • Ventilating the workplace60 • Cleaning the workplace61 • Providing personal protective equipment (only in limited setting)62
The Health and Safety Executive (HSE) notes that these obligations remain unchanged despite changes to lockdown laws and guidance.63
The guidance has also included steps that are not specifically required under health and safety law, such as working from home where possible or wearing face coverings in certain workplaces.
In a letter to Parliament’s Work and Pensions Committee, Sarah Albon, the Chief Executive of HSE, said non-compliance with guidance might indicate that an employer is in breach of health and safety law. However, she said that once legal restrictions are lifted, HSE would focus on risks that are specific to a person’s work activity rather than general public health risks:
In the event all legal restrictions are lifted and public health authorities are no longer recommending any particular additional measures to control the spread of COVID, i.e. a move from pandemic to endemic infection risk, HSE’s enforcement approach will change to keep pace and we anticipate our focus will return to risks created by the work activity itself. HSE has not previously regulated the control of community diseases, such as influenza, which are also present in the workplace, and would not expect this to be any different with COVID.64
59 Management of Health and Safety at Work Regulations 1999 60 Workplace (Health, Safety and Welfare) Regulations 1992 61 Ibid. 62 Personal Protective Equipment at Work Regulations 1992 63 HSE, Keeping workplaces safe as coronavirus (COVID-19) restrictions are removed, 19 July 2021 64 Work and Pensions Committee, Correspondence with the HSE about social distancing in the workplace, 11 June 2021
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As noted above, England has lifted most of its lockdown laws. However, Scotland, Wales and Northern Ireland continue to have legal restrictions, including specific restrictions on risk assessments, social distancing and taking all reasonable measures to reduce the risks of coronavirus spreading.
3.3 Restrictions imposed by businesses
Even if legal restrictions are lifted, individual businesses may decide to continue to implement certain health and safety measures in their workplace. Businesses are private entities and can impose conditions for people entering their premises. Businesses that provide services, such as airlines or trains, can also add requirements to their terms and conditions.
It will ultimately be for individual businesses to decide what measures, if any, they will continue to impose. All employers are legally required to undertake a risk assessment to identify health and safety risks to staff and customers.65 A business must implement measures to protect against any risks identified.
Steps that a business can take might include requiring staff and customers to wear face coverings, require people to show proof of their Covid-status before entering (e.g. through the NHS COVID Pass), reducing contact between staff and customers by using screens or distancing measures or collecting contact information for Test and Trace.
The UK Government’s guidance on working safely lists a range of measures that businesses might consider.
Businesses must ensure that they comply with existing legal obligations, such as those under employment or equality legislation.
65 See HSE, Risk assessment during the coronavirus (COVID-19) pandemic, 19 July 2021
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