Appendix 1
S.I. 2021/364
Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021
1.In its letter to the Department of 24 March 2021, the Committee requested a memorandum on the following points:
(1) In relation to the definition of “charitable, benevolent or philanthropic institution” in regulation 2(1), and having regard to the definition of “charity” in section 1 of the Charities Act 2011, describe the class of institution which is intended to be caught which are not charities but which are established for charitable purposes.
(2) In relation to the definition of “Crown interest”, and having regard to the extent and application provisions of regulation 1(3), identify the estates or interests “held in right of the Prince and Steward of Scotland” which are included in the definition.
(3) In relation to paragraph (a) of the definition of “elite sportsperson” explain the intended breadth of the phrase “derives a living from” including, in particular, whether it is intended to catch people who have sources of income not related to competitive sport, and whether it is intended to include sponsorship and other sums paid to a person by reason of their status as a participant in sports but not directly arising from competition prizes or other earnings.
(4) In the definition of “sportsground” explain the meaning of the phrase “elite sports training or competition”.
(5) In relation to the definition of “support group”, explain how the references to “members” and “those who attend its meetings” are intended to apply in relation to “one to one support” and, in so far as those expressions do not apply to “one to one support”, explain how the definition is intended to work in relation to that kind of support.
(6) In relation to paragraph (b) of the definition of “vulnerable person”, and having regard to the fact that the reference to regulation 2(4) is expressly inclusive and not exhaustive, explain whether there are intended to be any limitations on the health conditions that can be treated as “underlying health conditions” in order for a person to qualify as a “vulnerable person” under the regulations and, if that is the intention, explain how those limitations are derived.
(7) In relation to the definition of activities undertaken “for referendum purposes” in regulation 2(5)(d): (a) if paragraphs (i) and (ii) are disjunctive because it is intended that a person can satisfy the definition by either promoting an outcome or prejudicing an outcome, explain the intended meaning of the word “another” in paragraph (ii); and (b) if the word “another” suggests that any campaigning incorporates an element of both limbs of the definition, why was paragraph (ii) thought necessary?
(8) In relation to the definition of “private dwelling” in regulation 2(5)(i)(ii), explain the import of the words “or as otherwise specified” and, in particular, identify provisions of the Regulations in which any of the places listed in paragraphs (aa) to (ff) are specified as intended to be included within references to a “private dwelling”.
(9) In relation to regulation 6(3)(b), explain whether “issued by the government” is intended to refer to guidance issued by or on behalf of a Minister of the Crown and, if it is intended to have a wider meaning, identify the intended additional breadth.
(10) In relation to regulation 8(1): (A) Is it intended that a person is to be treated as having a reasonable excuse where they wish to take a holiday abroad (whether for the purpose of meeting other people who live or holiday abroad, in order to enjoy foreign weather or other conditions, or for other reasons) and they believe that having regard to their general well-being it is reasonable for them to take a foreign holiday? (B) If it is intended that such a person is not to be treated as having a reasonable excuse, explain, given that the list of excuses in Schedule 5 is expressly inclusive and not exhaustive, how effect is given to that intention.
(11) In relation to regulation 10(12), give examples of the kind of “reasonable instructions” that relevant persons are expected to wish to give when exercising the powers listed in that subparagraph.
(12) In relation to regulation 11(1):(a) where a person is given a prohibition notice for alleged contravention of a Step 1 restriction under regulation 10(7), is it intended that the person could be charged both with an offence under regulation 11(1)(a) and an offence under regulation 11(1)(d); and (b) explain how the principles of double jeopardy would apply (or not apply) in that case.
(13) In relation to regulation 14(3)(b)(iii) confirm that the phrase “any other place indoors” should be “in any other place”.
(14) In relation to regulation 18: (a) explain the circumstances in which it is proposed to allow persons designated by the Secretary of State to prosecute offences under the Regulations; (b) identify the class of person proposed to be designated; (c) explain why prosecution by the Crown Prosecution Service would not be appropriate; and (d) identify appropriate safeguards to be applied in the case of prosecutions by designated persons.
(15) In relation to regulations 21, 22 and 23(4): (a) explain what paragraph 21(2) is intended to add to, or detract from, the operation of section 16 of the Interpretation Act 1978; (b) explain why it was not thought necessary to include similar provision regulation 22; and (c) explain what regulation 23(4) achieves that would not have been achieved by a combination of silence and the 1978 Act?
(16) In relation to paragraph 10 of Schedule 1, is sub-paragraph (1)(a) intended to cover the use of premises for the provision of COVID-19 vaccinations and, if so, what is sub-paragraph (1)(j) intended to cover?
(17) In relation to paragraph 12(6) of Schedule 2, given that the test is set out as an objective one: (a) by reference to what evidence is it intended that providers of holiday accommodation should satisfy themselves as to whether people are members of the same or linked householders; and (b) in a case where the provider of the accommodation is misled by the submission of false evidence, does the provider have a defence to a charge of breaching the Regulations and, if not, why not?
(18) In relation to paragraph 4(9)(c) of Schedule 3, is it intended that questions of cost are capable of being taken into account for determining what is practicable?
2.The Department’s response to the Committee’s points is as follows.
3.In relation to point (1), the definition of “charitable, benevolent or philanthropic institution” in regulation 2(1) was intended to catch an institution which is established for purposes which may include charitable purposes but which are not limited to such purposes, the definition of “charity” in section 1 of the Charities Act 2011 being limited to an institution which is established for charitable purposes only (and which falls to be subject to the control of the High Court). In particular, the definition in regulation 2(1) was intended to catch religious bodies, including those operating places of worship, and unincorporated community groups and associations.
4.In relation to point (2), the title of “Prince and Steward of Scotland” refers to the Prince of Wales and constitutes part of the Prince of Wales’s titles when addressed in Scotland. The definition of “Crown interest” therefore includes the interests of the Prince of Wales (which, by virtue of regulation 1(3), would be limited to such interests in England).
5.In relation to point (3), paragraph (a) of the definition of “elite sportsperson” refers to “an individual who … derives a living from competing in a sport”. This form of words, present across secondary legislation relating to COVID-19 since its introduction in the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 (S.I. 2020/558), identifies a class of sportspersons who participate in a sport and receive some form of payment as a result of doing so. In requiring that the payment must be sufficient for such a person to “derive a living” from their activities (rather than setting a precise monetary figure), the definition seeks to ensure that the beneficial treatment (in the form of exceptions from the restrictions in the Regulations) applies only to people for whom participation in sport provides at least a reasonable income. The intention is that any source of income which is not a consequence of a person competing in a sport is irrelevant for the purposes of this definition, but that sponsorship and other sums paid to a person by reason of the person competing in sports may well be relevant.
6.In relation to point (4), in the definition of “sportsground”, the phrase “elite sports training or competition” means training or competition undertaken by elite sportspersons.
7.In relation to point (5), the intention is that one to one support could be organised by an institution of the kind referred to in the definition of “support group” (for example a business) for (or between) any of the institution’s members, or any person(s) who attend(s) the institution’s meetings; this would be in order to “provide aid” (generally) to its members or to those who attend its meetings. In other words, the aid or help would be being provided to the totality of the institution’s members or, more widely, to those who attend its meetings. The definition would capture, for example, one to one sessions between two individuals receiving the aid (i.e. mutual support between members/those who attend meetings organised by the institution in question).
8.In relation to point (6), the term “vulnerable person” is intended to capture persons who are likely to be susceptible to COVID-19 or its effects as well as persons who are otherwise likely to be vulnerable by virtue of requiring care or assistance. The health conditions in regulation 2(4) are those that are known to particularly increase vulnerability to COVID-19, however the list is intentionally non-exhaustive as we do not have a complete picture at this stage. In the circumstances, the limitations on the health conditions that would constitute “underlying health conditions” would be those that do not render a person vulnerable within the ordinary meaning of that term.
9.In relation to point (7), we confirm that regulation 2(5)(d)(i) and (ii) is disjunctive because it is intended that a person can satisfy the definition of activities undertaken “for referendum purposes” by either promoting an outcome or prejudicing an outcome. The word “another” in paragraph (ii), was intended to refer to an outcome other than one favoured by the person undertaking the activities however we accept that this could have been better expressed by simply referring to “a particular outcome” rather than “another particular outcome”.
10.In relation to point (8), we confirm that the words “or as otherwise specified” are superfluous as there are no provisions in which the places listed in paragraphs (aa) to (ff) are specified as intended to be included within references to a “private dwelling”. The Department apologises to the Committee for this error.
11.In relation to point (9), “issued by the government” is intended to refer to guidance issued by, or on behalf of, a Minister of the Crown and also wider guidance issued by the government such as by a non-Ministerial government department.
12.In relation to point (10), it is not intended that such a person is to be treated as having a reasonable excuse. We consider that this view is supported by the indicative list of reasonable excuses at Schedule 5. However, as with any other reasonable excuse defence, it would ultimately be for the court to determine the question on the particular facts and circumstances of any given case before it.
13.In relation to point (11), a relevant person, including a police officer, when exercising the powers referred to in regulation 10(12), may give the person concerned any reasonable instructions the relevant person considers to be necessary. An example would be, when exercising the power under regulation 10(7) to direct a gathering to disperse, to ask the individuals who are part of the gathering to leave in different directions.
14.In relation to point (12), the intention is that in the circumstances set out it is likely that a person would be charged in respect of an offence under regulation 11(1)(d), being the latest offence, however in theory it would be possible for a person to be issued with a prohibition notice whilst charged with an offence under regulation 11(1)(a), with failure to comply with the prohibition notice resulting in a further charge. There are two separate offences. The first is failing to meet a legal requirement, the second is failing to comply with a notice. A sentencing court may take into account the level of connection between the two offences in sentencing or a decision may be made not to proceed with both.
15.In relation to point (13), the Department confirms that in regulation 14(3)(b)(iii) the phrase “any other place indoors” should be “in any other place” and apologises to the Committee for this error.
16.In relation to point (14), regulation 18 provides for proceedings under the Regulations to be brought by the Crown Prosecution Service (the CPS) or any other person designated by the Secretary of State. Similar provision was included in regulation 13 of the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (S.I. 2020/1374) (the Tiers Regulations) and in the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (S.I. 2020/350) (the original Regulations). Designations were made under the Tiers Regulations (on 8 February 2021—attached) and the original Regulations (on 16 June 20201 ) to enable additional parties to carry out prosecutions for offences under those Regulations. The effect of these designations was carried over under these Regulations (regulation 23(3) as read, with the Tiers Regulations and, in relation to the designation of 16 June 2020, the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (S.I. 2020/684) and the original Regulations) to apply in relation to offences under these Regulations. It is not envisaged that any further designations will need to be made under regulation 18 of these Regulations.
17.The designation under the Tiers Regulations applies in circumstances where a person has been issued with a fixed penalty notice and proceedings may be brought under the Tiers Regulations.
18.The following persons have been designated under the Tiers Regulations: (i) the chief constable of a police force in England maintained under section 2 of the Police Act 1996; (ii) the Commissioner of Police of the Metropolis; (iii) the Commissioner of Police for the City of London; (iv) the chief constable of the British Transport Police Force and (v) the chief constable of the Ministry of Defence Police.
19.The following persons have been designated under the original Regulations: (i) the Chief Executive Officer of the ACRO Criminal Records Office; (ii) a district council; (iii) a county council; (iv) a London borough council; (v) the Common Council of the City of London in its capacity as a local authority; and (vi) the Council of the Isles of Scilly.
20.The designation of persons, in addition to the CPS, who may bring proceedings helps to ensure that offences under the Regulations relating to COVID-19 are dealt with swiftly and efficiently. There have been a high number of fixed penalty notices which have been issued but not paid under the Regulations and this would represent a significant workload for the CPS (with consequent delays) if no other persons were able to bring proceedings.
21.The relevant proceedings are dealt with under the “single justice procedure” provided for by section 16A of the Magistrates Court Act 1980. Under this procedure, the court deals directly with those cases where the accused pleads guilty in writing or does not respond or engage with the single justice procedure notice which is served upon them. However, by way of safeguard, the CPS will take conduct of all cases where the accused pleads not guilty or indicates that they do not consent to the single justice procedure; and the individual must then attend court and in due course have a trial.
22.In relation to point (15), regulations 21(2) and 23(4) were included for avoidance of doubt and, in the case of regulation 21(2), for consistency with other regulations relating to COVID-19 such as regulation 16 of the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (S.I. 2020/1045). We accept that provision similar to that in regulation 21(2) could have been included in relation to regulation 22 and will take this into consideration in our future drafting.
23.In relation to point (16), we confirm that paragraph 10(1)(a)(i) was intended to cover the use of premises for the provision of COVID-19 vaccinations (as well as for other essential or urgent services such as the provision of treatment centres, or other essential public services that need to be put in place to respond to an emergency, such as flooding—and not necessarily restricted to the response to COVID-19). Paragraph 10(1)(j) was intended to cover the use of theatres, conference centres and exhibition halls for wider activities such as testing options for, and methods of, controlling the spread of disease (which may not involve the provision of a service to the public), specifically in response to COVID-19.
24.In relation to point (17), we would expect a provider of holiday accommodation to take reasonable steps to ascertain whether persons for whom holiday accommodation was booked were from the same household or linked households such as seeking confirmation of this prior to taking bookings, and potentially asking for evidence such as proof of address. A person commits an offence under the Regulations if they breach a restriction without reasonable excuse. If a provider of holiday accommodation has taken reasonable steps as mentioned above and is misled by the submission of false evidence, then the provider may well have a reasonable excuse for having breached the Regulations but this will depend on the facts.
25.In relation to point (18), paragraph 4(9) of Schedule 3 was intended to cover gatherings for the purposes of weddings or civil partnerships where one member of the couple is seriously ill and unlikely to recover. The reference to “reasonably practicable” was intended to catch cases where one member of the couple could not leave the home due to illness, although it could potentially also catch other cases, for example where a wedding (in accordance with paragraph 4(8)) would not be affordable (or where a venue for a gathering in accordance with that paragraph was unavailable) in the time available afforded to the couple.
Department of Health and Social Care
30 March 2021
Published: 16 April 2021 Site information Accessibility statement