Nineteenth Report of Session 2021-22 Contents

Appendix 1

S.I. 2021/1340

Health Protection (Coronavirus, Wearing of Face Coverings) (England) Regulations 2021

1.The Committee has asked the Department for a memorandum on the following points:

1. In relation to the criminal offence created by regulation 10(1) in respect of contravention of the requirements of regulation 6:

(a) explain how it is intended that liability will attach to specific persons falling within the definition of “responsible person” in respect of any particular contravention, and how effect is given to that intention; and

(b) explain why the offence is not subject to a reasonable excuse qualification as are other offences under the Regulations.

2. Identify the power relied on by the Secretary of State in regulation 3(5) to subdelegate to the Secretary of State the power to decide by informal direction which premises the criminal prohibition applies to.

3. Justify the inclusion of regulation 15(2).

2.The Department’s response is as follows.

3.In relation to point 1(a), the requirement in regulation 6(1), and the offence in regulation 10(1), are taken from the Health Protection (Coronavirus, Restrictions) (Obligations of Undertakings) (England) Regulations 2020 (S.I.2020/1008), regulation 2A (inserted into those Regulations by S.I. 2020/1046) and regulation 3. It is intended that liability for failure to display a notice, or to take other measures, as required by regulation 6(1), will attach to the person who can be said to be responsible for carrying on the business or for providing the public transport service in question. This will be a question of fact in any particular case: if there is more than one person in this category, each of them will potentially have committed the offence.

4.In relation to point 1(b), the failure to subject this offence to a reasonable excuse qualification is the result of an oversight, and we apologise to the Committee for this oversight.

5.In relation to point 2, the power for the Secretary of State to disapply the requirement to wear a face covering in particular premises was previously set out in regulation 9 of the Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (S.I. 2021/364), since revoked by S.I. 2021/848.

6.The powers relied on are sections 45C, 45D and 45F of the Public Health (Control of Disease) Act 1984. Section 45C(1) is a broad power and we consider its language to be apt to cover provision designed to test whether specified premises pose unacceptable public health risks with or without certain degrees of restriction. The power, in regulation 8, enabling the Secretary of State to disapply, by direction, the requirement under regulation 3(1) or 6(1) in relation to particular premises may only be exercised for the purposes of a research programme concerned with the provision of an appropriate health response. We consider this to be in accordance with the broad power in section 45C(1).

7.Section 45C(3)(c) enables regulations to impose, or enable the imposition of, restrictions or requirements in relation to persons, places or things. Section 45D(5)(a) provides that “regulations “enable the imposition of a restriction or requirement” if the restriction or requirement is imposed by virtue of a decision taken under the regulations by the appropriate Minister, a local authority or other person”. Thus, the power envisages decisions being taken under regulations and this would include a decision not to impose a restriction or a requirement.

8.Section 45F(2) provides that regulations may confer functions on local authorities and other persons. We consider this can include the Secretary of State.

9.In relation to point 3, regulation 15(2) was intended as a saving provision in relation to the expiry of the Regulations. However, we acknowledge this was unnecessary in light of section 16 of the Interpretation Act 1978 and in accordance with the Committee’s 46th Report of the 2019–21 Session, and apologise for this error.

10.We thank the Committee for flagging the above issues and will consider appropriate action to deal with the issues identified in point 1(a), point 1(b) and point 3.

Department of Health and Social Care

7 December 2021




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