Gary Grant and Charles Holland outline the just-published regulations governing the re-opening of pubs, restaurants and other public venues from 4th July.
At 3pm on 3 July 2020, the much anticipated regulations permitting pubs, bars, restaurants and, surprisingly, cinemas and theatres, in England to re-open were laid before Parliament, just hours before they come into force at 6am on Saturday, 4 July 2020. Operators and regulators repeatedly pressing refresh on their web-browsers all-day have put themselves in serious peril of repetitive strain injury. A summary of the new Health Protection (Coronavirus, Restrictions) (No.2) (England) Regulations 2020, (“the Regulations”), with a focus on how they impact on licensed premises is set out below
The new Regulations
The new Regulations revoke the entirety of the five earlier versions and replace them with a new scheme (although any breaches of the earlier regulations amounting to a criminal offence may still be prosecuted under them).
Subject to the important exceptions detailed in Schedule 2 - which include nightclubs (and are set out in full below) from 6am on Saturday 4 July 2020 all previously closed businesses may now re-open.
Contrary to speculation, there are now no restrictions on the number of people permitted inside a reopened premises, nor any legal requirement imposed by these regulations to follow relevant guidance issued by the government on social distancing in relation to indoor licensed premises. That said, responsible operators will wish to take such steps as are appropriate to safeguard the health of their customers and reduce the risk of transmission of coronavirus. Proper regard – if not necessarily absolute compliance – with the evolving best practice guidance ought to be observed in so far as it is relevant to a specific business’ risk assessment.
Outdoor and Private Gatherings
There is an absolute prohibition on gatherings of 30 or more people that take place in private dwellings (including houseboats).
Gatherings of 30 or more people that take place:
(a) on a vessel (not being used for public transport), or
(b) in a public outdoor place (unless it is operated by a business, charitable, benevolent or philanthropic institution or a public body as a visitor attraction or is part of premises used for the operation of a business, charitable, benevolent or philanthropic institution or a public body).
are only lawful if all of the following criteria apply:
(i) the gathering has been organised by a business, a charitable, benevolent or philanthropic institution, a public body, or a political body; and
(ii) the person responsible for organising the gathering (“the gathering organiser”) has carried out a risk assessment which would satisfy the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999, whether or not the gathering organiser is subject to those Regulations; and
(iii) the gathering organiser has taken all reasonable measures to limit the risk of transmission of the coronavirus, taking into account the risk assessment. For this purpose any relevant guidance issued by the government must be taken into account.
Further exemptions, so as to permit the gathering apply in other specified circumstances, include in the case of elite sportspersons, or where the gathering is reasonably necessary for work purposes, or for the provision of voluntary or charitable services, or for education or training or to fulfil a legal obligation (such as attending court).
The Regulations also prohibit “indoor raves” consisting of more than 30 persons from taking place. It seems surprising that the Regulations therefore - apparently - do not prohibit an “indoor rave” of up to 30 persons.
So the Regulations place no bar on a gathering that takes place indoors which is (a) not in a private dwelling nor (b) a rave which would include pubs, bars, restaurants, cinemas and theatres.
A “gathering” is not a mere accumulation of people: it is when people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other.
The exceptions in Schedule 2
Those businesses that must remain closed are set out in Schedule 2 of the Regulations as follows:
1) Nightclubs (undefined but see next bullet-point below)
2) Dance halls, discotheques, and any other venue which—
(a) opens at night (“night” is left undefined).
(b) has a dance floor or other space for dancing by members of the public (and this includes “members” of a venue).
(c) Provides music, whether live or recorded, for dancing.
(However, a business falls out of this category if it ceases to provide music and dancing).
3) Sexual entertainment venues and hostess bars (this is the first time “SEV’s” have been explicitly – no pun intended – been required to close).
5) Nail bars and salons.
6) Tanning booths and salons
7) Spas and beauty salons (which includes any premises providing beauty services including cosmetic, aesthetic and wellness treatments but not hairdressers or barbers which do not provide any other of these specified beauty services).
8) Massage parlours.
9) Tattoo parlours.
10) Body and skin piercing services.
11) Indoor skating rinks.
12) Indoor and outdoor swimming pools, including water parks.
13) Indoor play areas, including soft play areas.
14) Indoor fitness and dance studios.
15) Indoor gyms and sports courts and facilities.
16) Bowling alleys
17) Conference centres and exhibition halls, so far as they are used to host conferences, exhibitions or trade shows other than conferences or events which are attended only by employees of the person who owns or is responsible for running the conference centre or exhibition hall.
However, these premises may still be used for:
(a) blood donation sessions;
(b) facilities for training by elite sportspersons, including indoor fitness studios, gyms, sports courts, indoor or outdoor swimming pools and other indoor leisure centres;
(c) indoor fitness and dance studios by professional dancers and choreographers (i.e. that person derives their living from dance, or from choreographing dance).
In addition, a person responsible for carrying on one of these “closed businesses” or providing a service may still:
(a) Carry on a business of offering goods for sale or for hire in a shop that is separate from the closed business, or by making deliveries or otherwise provide services in response to orders received through a website, by phone or text message or by post.
(b) Operate a café or restaurant if it is separate from the premises used for the closed business.
For these purposes a shop, café or restaurant (“SCR”) is separate from premises used for the closed business if the SCR is in a self-contained unit, and it is possible for a member of the public to enter the SCR from a place outside those premises.
Powers of Secretary of State to restrict access to public places
The regulations provide the Secretary of State with powers to issue directions restricting access to a specified public outdoor place in response to a serious and imminent threat to public health (i.e. the spread of infection).
Enforcement & Offences
A “relevant person” may take such action as is necessary to enforce any requirement imposed by these regulations and/or may issue a prohibition notice. A relevant person means a police officers, PCSO, a designated local authority officer or any other person designated by the Secretary of State. However, in relation to local authority officers, their powers are restricted to the closure of premises and businesses provisions only. Local authorities will wish to make the appropriate designations as soon as possible.
A person, who without reasonable excuse contravenes a requirement of the regulations commits an offence punishable on summary conviction by an unlimited fine. There are further offences of obstructing any person carrying out a function under these regulations or contravening a direction to disperse in relation to gatherings.
Fixed penalty notices may be issued as an alternative to prosecution.
As before, these new Regulations apply during the coronavirus “emergency period” and must be reviewed at least once every 28 days by the Secretary of State.
Sadly for the people and businesses in Leicester, the tide has flowed in the opposite direction and further lockdown provisions specific to the city also come into force on 4 July and can be viewed here.
These new regulations have, regrettably, been published at the eleventh hour and this article necessarily prepared in haste. Despite the deeply anti-social request on a Friday evening, the reader is advised to consider the full terms of the Regulations before taking further steps.
Gary Grant and Charles Holland are barristers at Francis Taylor Building