The three Regulations created on the 5th of May, as might be expected as we move further into the Emergency period, are all amending existing regulations. Two, making changes to the restrictions on freedom of movement, make substantive changes; the third corrects some minor technical problems.
The most significant of these is the Prohibitions on Movement Amendment no 4 Regulations. It will be recalled that regulation 5 gives a number of specific exceptions to regulation 4, which contains a general prohibition on movement “No person, other than an exempt person, may leave his or her ordinary place of residence except in accordance with these Regulations” (reg.4). Regulation 5 gives a long list of reasons for which a person who is asymptomatic may leave his or her ordinary place of residence. These are tidied up and clarified in some cases, for instance in relation to a disabled person’s exercise with an assistant rather than a family member (new reg.5(4)(a)(ii)), or moving house for welfare reasons (amendment to reg. 5(5A)(a)(i)), but a number of new reasons are added: attending court, complying with bail, attending a police station or attending premises from which court is attended (reg.3(3)(b), adding new reg.5(1)(m)-(p)), taking a dog to or from dog day care or grooming (new reg.5(1)(q)), attending the premises of a person providing education (new reg.5(1)(s)), and taking your child to and from premises providing education or a family member caring for the child to allow the person to work (new reg.5(1)(r)). The latter is a significant blurring of the separation of households, and may only be done in compliance with guidance from CoMin, and only where the carer and every member of your household is asymptomatic, and you do not enter the carers residence (new reg.5(5C)). Strikingly, although the person transporting the child (who need not live with the child) and their household must be asymptomatic, members of the child’s household, and the carer’s household, need not. This may merit reconsideration.
Taken individually, these additions to the reasons why a person may leave their ordinary place of residence are significant. They are overshadowed, however, by the amendment to the offence in Regulation 7. As originally drafted, this provided that it was an offence to leave or be absent from the ordinary place of residence … otherwise than in accordance with these Regulations” (reg.7). The amended offence is significantly different: “A person commits an offence if, without reasonable excuse or as expressly permitted by these Regulations, he or she leaves or is absent from his ordinary place of residence” (reg3(7), replacing reg.7).
As a result of this change any reasonable excuse will allow a person to leave their normal place of residence without criminal liability. What then is served by the (growing) list of reasons under reg.5? Firstly, reasonable excuse is such a broad term that a citizen may prefer not to take a chance on their explanation being acceptable. The reg.5 list is a set of purposes which can be relied upon, but the change means it is no longer exclusive. If you have a reason for leaving your residence which the court finds to be a reasonable excuse, even if not anticipated by the formers of policy or drafters of legislation, you will not be liable. Secondly, only some of the reg.5 purposes have reasonableness built in. A move to a new residence must be reasonably necessary, but undertaking shopping does not need to be for essentials, or reasonable. A person who shops in an unreasonable way does not thereby commit a criminal offence: if you prefer to buy your tinned goods individually, necessitating 25 visits to the shop a week, you do not need to make the case for this being reasonable.
Taken as a whole then, this Regulation represents a significant reduction in the restrictions on freedom of movement; shifting the balance still further to the Events and Gatherings Regulation as a way to enforce separation between households.
The Potentially Infectious Persons Amendment no.2 Regulations allows the Department to specify a person to exercise powers conferred in the Regulation (see e.g. new para. 18(g), 7(1)(g) discussed below), rather than specifying the officers who may exercise powers. Subsequently, references to immigration officers as enforcers of the Regulation are removed (reg.3, amending for instance para.14). A requirement or restriction issued by the Department under reg.6(2) may include requirements to “comply with any reasonable instruction given by a person authorised by the Department for the purpose of enforcing any requirement or restriction imposed under regulation 6 and this regulation or incidental to such a requirement or restriction (reg.3(d)(iv) adding reg.7(1)(g)). The reference to “under regulation 6 and this regulation” needs a little gloss. On the face of it reg.7 does not create a requirement or restriction, which is created under reg.6. The original Regulation did however allow an appeal against a restriction under reg.7, which this Amendment extends to regs.6,7 10 and 10 (reg.3), indicating that restrictions can be based in reg.7.
Turning to the criminal offences under the original Potentially Infectious Person Regulations, reg.3(j) seeks to amend paragraph 18(1) of the original Regulations. It creates a new offence of knowingly or recklessly exposing a child to a person who is a potentially infectious person, except where the child is themself a potentially infectious person, or is in a household with such a person (reg.3(j), amending paragraph 18(1)(f)). The regulation defines potentially infectious person to include both persons who may be infected, and everyone who has been in an infected area within 14 days (para.5(1) of original Regulation). There are already restrictions on what potentially infectious persons can do; this creates liability aimed at those who bring a child into contact with them.
It will be recalled that the Potentially Infectious Person Regulations are covered by the fixed penalty notice regime. That Regulation has now, however, been amended, leaving us with an ambiguity in relation to changes in paragraph 18. The offence under para. 18(1)(f) is covered by the fixed penalty regime, but it no longer matches the description given (“obstructing the Department of Health and Social Care or a constable in the exercise of a power under the Regulations), which is now most closely associated with 18(1)(g): “obstructs a person specified or authorised by the Department in the exercise of a power conferred by these Regulations”. If only one offence is covered, which is it? This ambiguity could be resolved by specifying all offences under paragraph 18 in the schedule to the fixed penalty notice regulation.
Finally, the Provision of Temporary Accommodation (Amendment) Regulations amends the earlier regulations providing for use of the Sefton and Athol House Hotels for temporary accommodation by persons without a right to occupy any premises. As noted the Regulation is very specific, with a detailed letter laying out the terms of accommodation being incorporated into the Regulation. This Regulation corrects one typographical error (reg.3(2)(a)), and switches responsibility for PAT testing of electrical items the resident brings with them from the resident, to the Department of Health and Social Care (reg.3(2)(b)).
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