All Reasonable Measures: tidying up the Coronavirus, Restrictions Regulations and the law of unintended consequences

December 7, 2020

Charles Holland looks at how a “tidying up” amendment in the new All Tiers Regulations has removed an important obligation on the operators of a significant class of premises in Tier 3.

It seems to me that this must have been an unintended consequence of the amendment, and I argue that it urgently needs to be reversed to plug what now is a significant and unjustified loophole in the regulatory provisions.

The first set of Coronavirus-related regulations made under the Public Health (Control of Disease) Act 1984 was made almost 10 months ago: the little-heralded Health Protection (Coronavirus) Regulations 2020, issued on 10 February 2020. Rather quaintly, those regulations appeared to envisage the pandemic being dealt with on a person-by-person basis, rather than 56m people at a time.

Since then, the Secretary of State has made very liberal and wide-ranging use of the powers available to him under the 1984 Act. It has produced what Baroness Hale of Richmond described this week in her evidence to the House of Lords Constitution Committee as a “bewildering flurry of new regulations”, with “constant chopping and changing between the different levels of control”.

It is no easy task to draft entirely new regulatory code in a matter of days. It was entirely understandable that were many examples in the early regulations of what might be described idiosyncratic drafting. So for instance, rather than consistently providing for the straightforward and well-established concept of closing premises to the public, the regulations decided to lump this together with the carrying on of businesses and the provision of services, cross-referenced to a schedule of “businesses” which included both businesses and premises. Terms, previously unknown to law, were used without being defined. Other expressions, well-known to law, were used in contexts where plainly they meant something different.

It is clear to students of the regulations that, over time, those who draft them have settled into their task. As my colleague Gary Grant and I observed in our article for the Local Government Lawyer, the regulations introducing the second lockdown were, in their improved structure, less perplexing than earlier versions.

The All Tiers Regulations

The second lockdown has been replaced with The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (“the All Tiers Regulations”), containing in its first three schedules the rules for each of the three tiers.

Interrelation with the national overarching regulations

As before, these are not stand-alone regulations: they interrelate with overarching national provisions for England:

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 (“the Face Coverings Regulations”)
The Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020 (“the Collection of Contact Details Regulations”)
The Health Protection (Coronavirus, Restrictions) (Obligations of Undertakings) (England) Regulations 2020 (“the Obligations of Undertakings Regulations”) (which require various businesses to effectively police customer compliance with other regulations)
The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 (“the No. 3 Regulations”) (which include provisions about individual premises directions which can be made by local authorities).
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (“the Self-Isolation Regulations”).
The Health Protection (Coronavirus, International Travel) (England) Regulations 2020 (“the International Travel Regulations”).
The Health Protection (Coronavirus, Restrictions) (England) (No. 2) Regulations 2020 (“the No. 2 Regulations”) (which have nearly all been revoked but which still retain a provision giving the Secretary of State a power to restrict access to public places).

The “all reasonable measures obligation”

By way of a (deliberately relevant) example, restrictions on participation in gatherings (the so-called “rule of six” and (in higher tiers) “rule of two”) are found in the All Tiers Regulations.

The All Tiers Regulations also include prohibitions on the organising or management of large gatherings (30 or more people) in certain circumstances (essentially indoor raves or outdoor events that are not risk-assessed)

But, perhaps counter-intuitively, where a premises knowingly hosts a gathering which breaches the restriction on participation, then it does not commit an offence under the All Tiers Regulations (or its predecessors).

Instead, the offence is found in Obligations of Undertakings Regulations, which requires certain types of premises to take “all reasonable measures to ensure” that the rules are being complied with.

Initial application of all reasonable measures obligation to hospitality only

The Obligations of Undertakings Regulations came into force on 17 September 2020, 3 days after the first appearance of the “rule of six” in the No. 2 Regulations, and actually began life with a different title (“Obligations of Hospitality Undertakings”) because they only related to the hospitality sector.

Regulation 2 as made provided (in part):

Restrictions on undertakings

(1) A person responsible for carrying on a business of a public house, café, restaurant or other relevant business must, during the emergency period, take all reasonable measures to ensure that—

(a) no bookings for a table are accepted for a group of more than six persons unless one of the exemptions in regulation 5 of the Principal Regulations applies;

(b) no persons are admitted to the premises in a group of more than six, unless one of the exemptions in regulation 5 of the Principal Regulations applies;

(c) no person in one qualifying group mingles with any person in another qualifying group where this is not permitted under the Principal Regulations;

…

(2) For the purposes of this regulation—

…

(b) a “relevant business” is a business which provides food or drink for consumption on its premises.

Widening of all reasonable measures obligation to include leisure and tourism, close physical contact services and community facilities

With effect from 28 September 2020, these obligations were removed from regulation 2 and placed in a new regulation 1A which related to a much wider category of people, namely to any person “who operators or occupies relevant premises”.

“Relevant premises” for these purposes had the same meaning as in the Collection of Contact Details Regulations. The definition provision (regulation 4) is somewhat convoluted, and for cases of partial occupation or multi-usage, regard needs to be had to the precise provisions. However, for the purposes of this article, “relevant premises” are, in broad terms, premises (whether indoors or outdoors) that are occupied or operated for the purpose of provide a listed service or activity directly to the public. The list (in its current form) is:

1. … subject to [exceptions] … services provided for the purposes of consuming food or drink on the premises, (including in seating made available adjacent to the premises) including by—

(a) restaurants, including restaurants and dining rooms in hotels or members' clubs;

(b) cafes, including workplace canteens;

(c) bars, including bars in hotels or members' clubs;

(d) public houses.

2. Leisure and tourism services, provided by or at—

(a) amusement arcades;

(c) betting shops and bingo halls;

(d) casinos;

(da) cinemas;

(e) clubs providing team sporting activities;

(ea) concert venues;

(f) facilities for use by elite and professional sportspeople (including sports stadia);

(g) heritage locations and attractions open to the public (including castles, stately homes and other historic houses);

(h) hotels and other guest accommodation provided on a commercial basis, including in Bed & breakfast accommodation, boats, campsites, caravans, chalets, guest houses, holiday parks, hostels, motels, pubs, sleeper trains and yurts;

(i) indoor sport and leisure centres including gyms;

(j) outdoor swimming pools and lidos;

(k) museums and galleries;

(l) music recording studios open for public hire or other public use;

(m) public libraries;

(n) theatres.

3. Close physical contact services, including those provided by—

(a) barbers;

(b) beauticians (including those providing cosmetic, aesthetic and wellness treatments);

(c) dress fitters, tailors and fashion designers;

(d) hairdressers;

(e) nail bars and salons;

(f) skin and body piercing services;

(g) sports and massage therapists;

(h) tattooists.

4. Services provided for social, cultural and recreational purposes in the following premises—

(a) community centres;

(b) youth and community centres;

(c) village halls.

Applicability of all reasonable measures obligation to all 3 tiers

Regulation 1A evolved over time to accommodate the special measures in the North East and North West and then the Three Tier system that existed before the second lockdown. By the time of the second lockdown, it contained three separate obligations in sub-paragraphs (1), (1A) and (1B), relating to tiers 1, 2 and 3 respectively, as follows:

(1) A person who operates or occupies relevant premises in an area which is not part of the Tier 2 area for the purposes of the Tier 2 Regulations or of the Tier 3 area for the purposes of the Tier 3 Regulations must, during the emergency period, take all reasonable measures to ensure that—

(a) no bookings are accepted for a group of more than six persons unless one of the exemptions in paragraph 3 of Schedule 1 to the Principal Regulations applies;

(b) no persons are admitted to the premises in a group of more than six, unless one of the exemptions in paragraph 3 of Schedule 1 to the Principal Regulations applies;

(c) no person joins another group or otherwise acts in a way which would contravene the Principal Regulations.

(1A) A person who operates or occupies relevant premises in the Tier 2 area for the purposes of the Tier 2 Regulations must, during the emergency period, take all reasonable measures to ensure that—

(a) no bookings are accepted—

(i) for a group of more than six, where the group is to be located outdoors, unless one of the exceptions in paragraph 5 of Schedule 1 to the Tier 2 Regulations applies;

(ii) for a group of two or more persons to be located indoors at the premises unless one of the exceptions in paragraph 4 of Schedule 1 to the Tier 2 Regulations applies;

(b) no persons are admitted to the premises in—

(i) a group of more than six, where the group is to be located outdoors, unless one of the exceptions in paragraph 5 of Schedule 1 to the Tier 2 Regulations applies, or

(ii) a group of two or more persons, where the group is to be located indoors, unless one of the exceptions in paragraph 4 of Schedule 1 to the Tier 2 Regulations applies;

(c) no person joins another group or otherwise acts in a way which would contravene the Tier 2 Regulations.

(1B) A person who operates or occupies relevant premises in the Tier 3 area for the purpose of the Tier 3 Regulations must, during the emergency period, take all reasonable measures to ensure that—

(a) no bookings are accepted for—

(i) a group of more than six persons, where the group is to be located in a place which satisfies the conditions in paragraph 2(4) of Schedule 1 to the Tier 3 Regulations (“a relevant place”), unless one of the exceptions in paragraph 4 of that Schedule applies; or

(ii) a group of two or more persons to be located in a place which is not a relevant place, unless one of the exceptions in paragraph 4 of Schedule 1 to the Tier 3 Regulations applies;

(b) no persons are admitted to the premises—

(i) a group of more than six persons, where the group is to be located in a relevant place, unless one of the exceptions in paragraph 4 of that Schedule applies; or

(ii) a group of two or more persons to be located in a place which is not a relevant place, unless one of the exceptions in paragraphs 4 of Schedule 1 to the Tier 3 Regulations applies;

(c) no person joins another group or otherwise acts in a way which would contravene the Tier 3 Regulations.

(2) In this regulation, “relevant premises” has the same meaning as in the Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020.

These provisions were not without their idiosyncrasies and operational difficulties. The gathering restrictions on persons “living in” Tiers 2 and 3 travelled with them anywhere in England - and yet the all reasonable measures obligation did not (and does not) recognise this. The requirement to take all reasonable measures to ensure no person “acts in a way which would contravene” regulations is very widely worded - those regulations had far more restrictions than just gathering restrictions.

Presumably it was thought to be better than the previous obligation to ensure that no-one “mingles”, which was the source of some journalistic scorn. Many of my hospitality sector clients were (understandably) bewildered as to how they were to police a restriction which was subject to 14 general exceptions with further exceptions depending on the (highly technical) status of whether the premises was indoors or outdoors. How, for instance, was a pub meant to know whether a group of students were all part of the same household or not? A request for ID with addresses might produce a driving licence or two - but often the parental rather than the term-time address on it. Is a house in multiple occupation a household for the purpose of the gathering restrictions? Who knows?

But, these difficulties are not the point of this article. The all reasonable measures obligation had an unquestioned utility because, at the very least, it placed an obligation on a premises not to host a gathering that plainly breached the restrictions on gatherings. So, for instance, if it accepted a booking for a wedding reception well excess of the permitted number of guests (initially 30, then - from 28 September - 15) and went ahead and hosted that event. A deliberate choice on the venue to do this would be in breach of the all reasonable measures obligation, and thus an offence.

All reasonable measures obligation and the second lockdown

The No 4 Regulations, which introduced the second lockdown, revoked the three tier regulations. The all reasonable measures obligation in regulation 1A of the Obligations of Undertakings Regulations remained unamended - like the Nightingale hospitals, ready to swing into action when the three tier system came back into force at the end of that lockdown.

The All Tiers Regulations and the Enforcement Powers Regulations

The All Tiers regulations reintroduced the three tiers in a single regulation, with Schedules 1, 2 and 3 containing the restrictions for each tier. A much tidier and neater approach.

New enforcement powers were contained in a separate regulation (so a new all-England overarching regulation), The Health Protection (Coronavirus, Restrictions) (Local Authority Enforcement Powers and Amendment) (England) Regulations 2020 (“the Enforcement Powers Regulations”), a clear and well-drafted regulation that gave local authorities the power to issue a trinity of notices in relation to persons who breached one of a list of “relevant statutory provisions”. Included in this list was, yes, the all reasonable measures obligation in regulation 1A of the Obligations of Undertakings Regulations, labelled (not especially accurately) “size of bookings”.

All well and good? Well, up to a point….

The removal of the all reasonable measures obligation from Tier 3

Having allowed regulation 1A of the Obligations of Undertakings Regulations to sit idle and serve no immediate purpose for the entire period of the second lockdown, the spirit of Marie Kondo appears to have infected those drafting the new provisions. What appears to be a tidying amendment in paragraph 4(3)(c) of Schedule 5 to the All Tiers Regulations provides of regulation 1A “omit paragraph (1B)”.

The effect of this is that no-one operating a premises in Tier 3 to which the obligation to display a QR code relates has any legal obligation to take any measures to ensure that bookings are not accepted or persons are not admitted in breach of the gatherings restrictions applicable in that tier (which of course are the most stringent restrictions). Nor is that person under any legal obligation to take any steps to prevent persons from one group joining another whilst in those premises.

How could this have come to pass?

There is nothing in the explanatory note or memorandum.

Perhaps it was thought that because in Tier 3 all hospitality has to close for the purpose of the sale of food and drink on the premises, the all reasonable measures obligation was not longer required in Tier 3, and thus some tidying up could be done. If this was so, then it was a mistake for two reasons.

First, as I have explained, the all reasonable measures does not just relate to hospitality. It relates to 3 other classes of business (leisure and tourism, close physical contact services and community facilities) all of which are allowed to operate in Tier 3. So now, in Tier 3, and only in Tier 3, there can be no enforcement against the operators of such premises who decide to host gatherings in breach of the restrictions where the specific restrictions relating to 30+ events are not breached.

Second, just because hospitality is not permitted in Tier 3 does not mean that hospitality might not happen. Say a pub in Tier 3 decides to have an illegal lock-in for 8 people. A breach of the business closure restrictions then. Well, potentially yes, but what if the pub argues that people brought their own and hence there was no provision and no offence. A breach of the all reasonable measures obligation would be the answer, but for its revocation.

Human ingenuity to exploit loopholes is nothing new, and caution should be exercised before deleting what is seen to be an out of date provision. By way of a precedent, in London, the offence of plying for hire is found in s.7 of the Metropolitan Carriage Act 1869. It used to read:

"If any unlicensed hackney or stage carriage plies for hire, the owner of such carriage shall be liable to a penalty .. for every day during which such unlicensed carriage plies.”

By the 1970’s there were no stage carriages in London. The Law Commission, looking to tidy up the statute book, drafted a bill of deletions that could be made, which became the Statute Law (Repeals) Act 1976. This deleted the words “or stage”. It was not exactly a massive cull of words, but no doubt it was thought every little helped. The effect? The unlicensed, unregulated and unloved “pedicab” industry in London, causing congestion, blaring out noise, ripping off tourists: each and every one a stage carriage.

Conclusion

Hopefully this gap will be plugged soon.

As the pandemic matures, and as further regulatory change is required to bring forward altered strategies for dealing with the changing situation on the ground, one can only hope for Parliament might be given meaningful opportunities to scrutinise regulations before they are made, with the associated input of regulators and the legal profession who advise them and the trade, so that issues such as this might be avoided in the future.

Charles Holland is a Barrister at Trinity Chambers (Newcastle) and Francis Taylor Building (London)