Worker cleaning a closed cafe

On 22 September 2020, the Government announced that it would be introducing a new set of restrictions in England, including further rules on the opening times of certain businesses and limiting the size of social event gatherings. It stated that this was in response to the increased spread of Covid-19 and the upgrading of the UK’s Covid-19 alert level from three to four.

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 5) Regulations 2020 were made on 23 September 2020. They were laid before Parliament under the made affirmative procedure on 24 September 2020. The provisions came into force at 5am on 24 September 2020, except for those relating to weddings, wedding receptions, funerals, and other “significant event gatherings”, which came into force on 28 September 2020. They apply to England only. The regulations have been made using powers available under the Public Health (Control of Disease) Act 1984.

The regulations were debated in the House of Commons on 13 October 2020 and are scheduled to be debated in the House of Lords on 20 October 2020.

What do the regulations do?

The regulations impose further restrictions on businesses and social gatherings in England. The regulations require businesses:

  • Selling food and drink to close from 10pm to 5am (subject to exemptions).
  • Selling alcohol for consumption on the premises to take orders for food and drink from customers who are seated. They must only serve them while they are seated.
  • To take reasonable steps to ensure that customers only consume food and drink while seated.

The regulations include exemptions for certain businesses on the closure after 10pm rule:

  • Cinemas, theatres or concert halls can stay open beyond 10pm to conclude a performance that has begun before 10pm but are then obliged to shut once the performance has concluded.
  • Businesses which are required to close will be able to provide drive through or delivery services.
  • Exceptions are provided for certain types of business, such as motorway service areas and supermarkets, convenience stores and cornershops.

The regulations established a series of levels for fixed penalty notices for breaches of these restrictions: £1,000 for a first notice, £2,000 for a second notice, £4,000 for a third notice, and £10,000 for the fourth and all subsequent notices.

The regulations also made changes to the restrictions on social gatherings in England. From 28 September 2020, support groups and weddings were limited to 15 people, and exemptions for other religious and “life cycle” events, and indoor sports gatherings were removed. The limit on the number of people allowed to attend funerals remained unchanged: the maximum number is 30 people. The Government stated that to underline the need for compliance, the regulations introduce new fixed penalty notices for breaches to the gathering limit. The initial fine level starts at £200, rising to a maximum of £6,400.

What regulations do they amend?

On 4 July 2020, the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (the “original regulations”) came into force. These regulations relaxed many of the restrictions on social gatherings and businesses which had been introduced in spring 2020 because of the coronavirus pandemic. For example, the regulations contained fewer restrictions on which businesses could open and allowed gatherings of up to 30 people in private dwellings, subject to certain conditions. However, there have been a series of regulations setting out local restrictions, which have been amended and reviewed several times, because of the rate of transmission of Covid-19 in those local protected areas. Further information on these regulations can be found in the House of Lords Library articles:

The original regulations have been amended a number of times, opening up businesses and venues further. They were also amended to create an offence for holding an illegal gathering of over 30 people, giving the police power to issue a fixed penalty notice of £10,000.

However, the most recent previous amendments to the original regulations, the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020, reintroduced further limits. These regulations implemented the Government’s “rule of six” policy: social gatherings of more than six people are prohibited except in specified circumstances. The regulations listed a number of exceptions to the rule, including gatherings for civil partnerships and marriages, where 30 guests were allowed to attend. These regulations came into force on 14 September 2020 and were approved by Parliament on 6 October 2020. Background information on these regulations can be found in the House of Lords Library article, ‘Coronavirus: Rule of six regulations’ (1 October 2020).

Why were new restrictions introduced?

In September 2020, the UK Government, Chief Medical Officer Professor Chris Whitty and Chief Scientific Advisor Sir Patrick Vallance all agreed that urgent action was necessary to stop the spread of coronavirus, following a rapid increase in the number of daily positive Covid-19 cases over the recent preceding weeks.

On 9 September 2020, Prime Minister Boris Johnson announced that he would be introducing a “rule of six”, which meant that no more than six people could meet (unless subject to an exemption) indoors or outdoors. On 14 September 2020, regulations came into force implementing the Government’s rule of six policy.

On 21 September 2020, the four UK chief medical officers (CMOs) recommended that all four nations in the UK should move from the UK’s Covid-19 alert level three to four. The following day, the Government announced that it was going to introduce additional measures to address the increase in Covid-19 cases, including restrictions on the opening times of businesses selling food and drink.

The Government has said the closure of businesses selling food and drink between 10pm and 5am (subject to exemptions) would “reduce the likelihood” of people not adhering to social distancing rules, with “compliance often being affected by alcohol consumption”. The Government also stated the introduction of table service “aims to reduce” the amount of time customers spend at the ordering counter, which will “in turn reduce the risk of transmission” from “mingling” between people from different households. The Government argues the introduction of fines for businesses that do not follow the rules will deter business from breaking them.

The Government has said the increased restrictiveness of the exemptions to the “rule of six” is to reduce the risk of transmission in large groups. It stated that it has looked to “balance” the need to increase restrictions while “reflecting the importance of such activities such as weddings and funerals”.

What has happened since the regulations came into force?

On 12 October 2020, Prime Minister Boris Johnson set out the Government’s three-tiered system of local Covid alert levels in England. On the same day, the Government laid three statutory instruments establishing this new system. The instruments included measures on the closure of hospitality at 10pm and the limits on social gatherings. These regulations came into force on 14 October 2020. The three instruments were debated in the House of Commons on 13 October 2020 and in the House of Lords on 14 October 2020. Further information on the local alert system can be found in the House of Lords Library article, ‘Covid-19 local alert levels: Three-tier system for England’ (13 October 2020).

What has Parliament said?

The House of Lords Secondary Legislation Scrutiny Committee has considered the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 5) Regulations 2020. However, the committee did not draw them to the special attention of the House. The instrument has not yet been considered by the Joint Committee on Statutory Instruments.

On 13 October 2020, in the House of Commons, the regulations were debated alongside the three statutory instruments implementing the Government’s three-tiered local alert system. During the debate, Health Secretary Matt Hancock stated that the closure of hospitality at 10pm was necessary to restrict socialising and “reduce the transmission with the least damage to education and the economy”. Responding for Labour, Shadow Health Secretary Jonathan Ashworth said that they supported this approach. However, Mr Ashworth stated that had parliamentary procedures allowed, the Opposition would have proposed an amendment which would have prohibited the selling of alcohol after 10pm but allowed a “drinking-up time […] and no hard stop”. Mr Ashworth also noted that “many Members” were “deeply sceptical” about the “[10pm] curfew”.

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 5) Regulations 2020 were put to a vote and were approved by 299 votes to 82 votes.

What has the hospitality sector said?

Many from the hospitality sector have criticised the new 10pm closure. For instance, the chief executive of UKHospitality, Kate Nicholls, said the 10pm closing time was “brought in without justification and it is quickly killing our sector”. Emma McClarkin, chief executive of the British Beer and Pub Association (BBPA) said pubs had seen an “immediate impact”. Both bodies have called for a sector-specific financial support package.

Photo by Zhanjiang Chen at Unsplash.