My Corona, Your Corona (Part 2): The Regulations

A lot of the noise in the press and on social media over the past few weeks of “lockdown” has confirmed that we are living in a golden age for curtain twitchers. Spying on your neighbours in silent judgment was always fun, sure, but feeling that you have the moral authority to open your window and scream “IS THAT REALLY SOCIAL DISTANCING” these days really adds a certain je ne sais quoi.

That said, there appears to be a fair amount of confusion over what the emergency legislation actually allows you to do. Is the criminal law an effective tool for enforcing a state of quasi-quarantine, or is this a case in which the authorities hope that the spirit of the law is far more effective than the letter of the law could ever be?

A few days ago, I posted a brief(ish) examination of the Coronavirus (Scotland) Act 2020 and its implications for criminal justice in Scotland. You’ll have noticed that there was no mention of restrictions on individuals’ movement contained within that Act, nor criminal offences being created for breaching said restrictions. That’s because such provisions come from a separate, secondary piece of legislation altogether: the snappily-named Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“the Regulations”).

The power to make such regulations comes from section 49 of the UK-wide Coronavirus Act 2020.

Schedule 19 provides further definition on the exact powers that the Scottish Ministers have in making their regulations. It’s here if you want to read it in detail.

Let’s look at the Regulations to see what the law actually says you can and cannot do. Bear in mind that the starting point is that it is a criminal offence to breach any of the following Regulations.

Duration

The Regulations came into force on 26th March 2020. They are designed to be reviewed on a much more regular basis than the Coronavirus (Scotland) Act 2020 (which is automatically set to expire on 30th September 2020, unless it is extended).

Regulation 2(1) defines the “emergency period” as beginning as soon as the Regulations come into force (so 26th March 2020), and ends in relation to any particular restriction imposed by the Regulations when the Scottish Ministers officially terminate that restriction. In other words, we could conceivably find that the “emergency period” relating to restrictions on our movement as individuals is shorter than the emergency period imposed in respect of mass gatherings, like sporting events.

Regulation 2(2) states that the Scottish Ministers must “review the need for restrictions…at least once every 21 days, with the first review being carried out by 16 April 2020”. The results of that first review were announced yesterday:

As soon as a restriction is deemed no longer necessary to prevent the “incidence or spread of infection in Scotland with coronavirus”, it must be terminated (Arnie-style).

Closing Businesses

Regulation 3(1) provides that, for the duration of the emergency period, those responsible for running businesses that primarily exist to sell food and drink must close premises, or the part of their premises, where food or drink is sold for consumption there and then. In other words, you can sell food and drink on a takeaway basis only.

Part 1 of Schedule 1 to the Regulations defines these businesses as:

• Restaurants (including dining rooms in hotels and members’ clubs)
• Cafes, including workplace canteens
• Bars, including hotel and members’ club bars
• Pubs

The exceptions are cafes or canteens in hospitals, care homes, schools, prisons, military premises and homeless services. Workplace canteens can also remain operational if “there is no practical alternative for staff at that workplace to obtain food”, and a distance of two metres can reasonably be maintained between people using the canteen.

Regulation 3(4) requires further businesses to be closed. These are defined in Part 2 to Schedule 1 of the Regulations as:

• Cinemas
• Theatres
• Nightclubs
• Bingo halls
• Concert halls
• Museums and galleries
• Casinos
• Betting shops
• Spas
• Nail, beauty and hair salons (including barbers)
• Massage parlours
• Tattoo and piercing parlours
• Skating rinks
• Fitness studios, gyms, swimming pools, bowling alleys, amusement arcades, soft play centres and other indoor leisure centres and facilities
• Funfairs
• Playgrounds, sports courts and outdoor gyms
• Outdoor markets (except for food stalls)
• Car showrooms
• Auction houses

The exceptions are that cinemas, theatres, bingo halls, concert halls, museums and galleries can be used “to broadcast a performance to people outside the premises”, so you can still experience the thrill of live bingo, don’t worry.

Additionally, any business premises can be opened in order “to host blood donation sessions”. Any time I’ve gone ice skating it’s turned into a blood donation session pretty quickly, so it sounds like a win-win to me.

“Essential” Businesses

Regulation 4, while allowing certain businesses (you’ll have heard of them referred to as “essential” businesses) to remain open, requires the business operators to “take all reasonable measures” to:

• ensure that any persons on the premises maintain a distance of two metres from one another (except between members of the same household, and carer/caree);
• admit people in small enough numbers to make it possible to maintain that distance, and;
• manage queues outside the business in order to maintain the two metre distance.

These businesses are defined in Part 3 of Schedule 1 as:

• Food retailers
• Off licenses and licensed alcohol shops (including breweries)
• Pharmacies and chemists
• Newsagents
• Homeware, building supply and hardware stores
• Petrol stations
• Car repair and MOT services
• Bicycle shops
• Taxi or vehicle hire businesses
• Banks, building societies, credit unions, short-term loan providers and cash points
• Post offices
• Funeral directors
• Laundrettes and dry cleaners
• Dentists, opticians, audiology services, chiropody services, chiropractors, osteopaths and other medical services, including mental health services
• Vets and pet shops
• Agricultural supply shops
• Storage and distribution facilities (e.g. Amazon warehouses)
• Car parks
• Public toilets

All other business premises must close to the public, but remote orders and deliveries can still carry on.

Regulation 4 also specifically closes places of worship (except for funerals, broadcasting acts of worship and for providing essential voluntary services) and businesses that provide accommodation (e.g. hotels) except in specified scenarios (e.g. where a person is unable to return home or is homeless).

Movement

Regulations 5 and 6 impose significant restrictions on individual movement.

Regulation 5(1) bluntly states that, during the emergency period, “no person may leave the place where they are living” unless they have a “defence” under regulation 8 (I’ll come back to that).

The place where someone is living includes any garden, yard, passage, stair, garage, outhouse “or other appurtenance” (I have no idea what that means, but it sounds expensive).

Homeless people are excluded from regulation 5(1), for obvious reasons.

Gatherings

Regulation 6 prohibits gatherings of more than two people in “a public place”. The exceptions are:

• where all the persons in the gathering are members of the same household;
• where the gathering is essential for work purposes;
• to attend a funeral, or;
• where reasonably necessary to facilitate a house move, to provide care or assistance to a vulnerable person, to provide emergency assistance, to participate in legal proceedings or to fulfil a legal obligation.

“Public place” is not defined in the Regulations. In road traffic law, it is defined as “a place to which the public may resort by express or implied permission”, but it is hard to say definitively whether certain places are public or private. For example, is a car park attached to a block of flats with “private – residents only” signs posted, but no other impediments in place, a public or a private place? There is case law that supports both sides.

Enforcement

Regulation 7 empowers a police officer (or, in relation to the restrictions on businesses, a local authority officer) to do certain things in order to enforce the Regulations above.

The officer can “take such action as is necessary” to enforce the Regulations. This includes the police being able to direct someone to return home, and using reasonable force (if necessary and proportionate) in order to remove someone to their home.

Regulation 7(9) empowers the police to disperse gatherings of three or more people.

The police can also direct parents to secure their children’s compliance with the restrictions “so far as reasonably necessary” (posted without comment).

In respect of businesses, an officer can issue a “prohibition notice” (a measure under s22 of the Health and Safety At Work Act 1974, directing that a business cease the unsafe act immediately) if they reasonably believe that the business is not complying with a requirement in the Regulations.

Offences

Regulation 8(1) states that a person who contravenes any of the requirements in Regulations 3 to 7 commits an offence. It is also an offence to obstruct a person carrying out a function under the Regulations, and an offence to fail to comply with a direction, “reasonable instruction” or prohibition notice issued under Regulation 7.

Regulation 8(6) provides that anyone charged with an offence in relation to the Regulations is liable, on summary conviction, to the “statutory maximum” fine (£2,500 in the JP Court, £10,000 in the Sheriff Court). In other words: no, you cannot be jailed as a direct consequence of breaching any of the Regulations. It is also worth noting that those figures are maximum possible fines; in practice, you would not expect individuals to be fined anywhere near £2,500, let alone £10,000.

Defences

This is where things get less straightforward. Regulation 8(4) provides that “It is a defence…to show that the person, in the circumstances, had a reasonable excuse.” That’s it.

One of the big problems with using the criminal law to regulate people’s everyday behaviour is that, while it is quite good at telling you what you can’t do, it’s not very good at telling you what you can do.

What constitutes a “reasonable excuse”? Regulation 8(5) provides some examples of what a reasonable excuse “includes”. There are too many to list here, but to give you an idea:

• “to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for a vulnerable person and supplies for the essential upkeep, maintenance and functioning of the household or the household of a vulnerable person, or to obtain money”
• “to take exercise, either alone or with other members of their household”
• “to avoid injury, illness or to escape a risk of harm”

It’s worth repeating that these are just examples of what might be a reasonable excuse. It is non-exhaustive.

In fact, I would go as far as to say that, in the majority of cases involving individuals being out and about, the Regulations are nigh-on unenforceable as potential criminal offences.

“Basic necessities” is obviously a matter of interpretation. If I go to the shops for some milk today, am I committing a crime if I pick up a some ice cream while I’m there? What if I have a fussy child who insists on only eating boxes of Cheesy Pasta? What if the mental strain of spending time with my family makes a bottle of gin (or five) very very necessary? If I take the view that as many discounted Easter eggs as I can carry are essential for the “functioning of the household”, who are the police to tell me I’m wrong? Do the police have the legal authority to determine what “non-essential” items are?

“Taking exercise” presumably includes walking from A to B, so proving beyond reasonable doubt that someone’s presence outdoors is not permitted seems extremely difficult. Contrary to popular belief (and confused messaging from police and the UK government), there is no legal limit on one’s “daily allowance” of exercise.

“Getting some fresh air” is, generally, regarded as being a Good Thing for one’s mental health – surely sitting in a park on your own could be construed as avoiding illness? I mentioned the feared spike in domestic violence in Part 1; if someone leaves their home to go for a drive because they are worried that they might put their partner at risk of harm if they stay, is that not a reasonable (if distasteful) excuse?

Until any charges of breaching the Regulations are tested in court, it is very hard to give an actual answer to any of the above questions.

Social Conditioning

I appreciate that I’m being a bit obtuse above, but my point is that, as criminal offences, the Regulations are probably about as good as they can be (i.e. not very). For very good reasons, the government wants to socially condition the public’s behaviour, and the criminal law can be an important part of that.

It is useful to publicise the fact that people have been issued fixed penalty notices (as an alternative to prosecution) for breaching the Regulations. Never mind the fact that none of the purported breaches have been tested in court yet.

It is useful because one of the – quite legitimate – goals of the Regulations is to tacitly encourage the public to regulate each other’s behaviour, without the police needing to get involved. The moral and social impact of creating these new criminal offences is far more important than any new legal powers that they give to police officers.

Remember that pub in Greenock that refused to close after the UK government had “ordered” pubs and restaurants to close? That was back on the 20th of March. Legally, it was perfectly entitled to stay open initially – a fact that the police acknowledged at the time. The Regulations did not come into force until the 26th.

But morally, people were outraged. The local MSP has pressured the licensing board to deny the owner’s alcohol licence in future.

People have apparently sent the owner death threats. Again, what he did was not illegal at the time. I’m not defending the wisdom of the owner’s decision, but it just goes to show that a sense of moral authority is an extremely powerful thing.

There are a million and one examples of how police forces across the UK may have struggled to get to grips with the difference between their moral authority and their legal authority. In England, where the restrictions on movement are almost identical to the above, we have seen police attempting to shame otherwise “socially-distanced” members of the public by filming their apparently “non-essential” activities via drone:

Are the activities in the video above more dangerous, from a public health perspective, than this?

We rightly expect the police to take the lead on advising the public on what the law says. It causes unnecessary tension when the police appear to be confused. By my reading of the English regulations, the “gathering” on Westminster Bridge above is illegal. Arguably, so is this:

…but then again, maybe the social impact of the message is far more important than the letter of the law.

As individuals, we have probably all glanced disdainfully at people out and about in the past few weeks on the basis that we don’t think what they are doing is “essential”; such is the power of social conditioning. There are not enough police officers to monitor millions of people’s actions, so the authorities rely on the public to mutually monitor and regulate each other’s behaviour instead. 

The philosopher Michel Foucault (I know, shut up) wrote about the “disciplinary society”, in which “inspection functions ceaselessly” in order to create “a system of intense regulation”. In particular, he was very fond of Jeremy Bentham’s Panopticon – a model for a circular prison in which a central tower can potentially be monitoring any prisoner at any given time, without the prisoner knowing. The theory was that prisoners would regulate their behaviour automatically, regardless of whether they were actually being watched or not.  Foucault called this the “unequal gaze”, which led to “the internalisation of disciplinary individuality”.

The Regulations work in the same way. We have been flooded by messages of social distancing and staying at home. We all now know that it is illegal to go out without a reasonable excuse. Regardless of the likelihood that we will never have to worry about being prosecuted for going outside, we now expect our neighbours to be curtain-twitching any time we step outside to take the bins out. We silently judge the content of other people’s shopping baskets, at the same time as we guiltily assess the content of our own.

In that sense, the criminal law can only lend a certain amount of legal authority to the moral authority of the message to stay home. In the context of a pandemic, the latter is far more important.