Introduction

On 15 June 2020, initial regulations came into force requiring passengers on public transport in England to wear a face covering, subject to certain exemptions (the “transport regulations”). Further regulations, requiring the use of face coverings in shops, shopping centres, transport hubs, banks and post offices, came into force on 24 July 2020 (the “face covering regulations”). Both instruments define a face covering as anything which covers the mouth and nose.

Six amending regulations have changed these two original instruments. The first three have already been debated and approved by both the House of Lords and the House of Commons. They added further locations to the lists of where coverings must be worn, for example to include museums, cinemas, libraries, casinos and indoor sports venues. They also introduced a system whereby the penalty for breaking either regulation doubled with each subsequent offence after the first, to discourage repeat offending.

Earlier House of Lords Library articles, linked below, cover both the original regulations and the first three amendments:

This article gives an overview of the remaining three amending regulations, which are due to be debated in the House of Lords on 12 October 2020.

The original regulations and the six amendments apply to England only and have been made using powers available under the Public Health (Control of Disease) Act 1984. Different rules about wearing face coverings apply in Scotland, Wales and Northern Ireland.

Effect of the regulations

Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 2) Regulations 2020

These regulations amend the original transport regulations to include taxis and private hire vehicles in the definition of public transport in which passengers must wear face coverings. The explanatory memorandum said that “while face coverings are not a substitute for other nonpharmaceutical interventions such as social distancing and hand hygiene, they can offer some limited protection to others, particularly where distancing is difficult to manage, such as in taxis and private hire vehicles”. It also stated that driving taxis and private hire vehicles was a “high-risk occupation”, and said the move had “strong support” from the taxi and private hire vehicle industry. The regulation does not make it compulsory for drivers themselves to wear face coverings.

The Government said that the regulations also make changes to the original face covering regulations to “correct errors” and “provide clarity”.

Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 3) Regulations 2020

These amend the face covering regulations to include further venues where wearing a covering is compulsory. New locations include theatres, and restaurants, bars and public houses, except when seated for the consumption of food or drink.

They also require employees and staff to wear a covering in certain locations where they may be in close proximity to members of the public, such as shops, restaurants, bars, museums and public attractions. The explanatory memorandum said these measures were introduced “to increase the protection offered to members of the public and workers in hospitality settings”.

The instrument also amends both the original regulations to increase the applicable penalties under them. They increase the fine for a first offence from £100 to £200 (in both cases, halved if paid within 14 days). The penalty will still double for each subsequent offence, with the maximum increasing to £6,400.

Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No. 3) Regulations 2020

These correct the previous regulations to make clear that staff in pubs are among those who need to wear a face covering. The explanatory memorandum said that pubs were “inadvertently” omitted from the schedule to the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 3) Regulations 2020 that sets out the places in which staff would have to wear coverings.

Parliamentary procedure

The three instruments being debated on 12 October 2020, as well as the original regulations and previous amendments, were laid under the made affirmative procedure. This means they could become law when made by the Secretary of State, and prior to being laid before, or approved by, Parliament. They must be approved by both Houses within 28 days of being made, or they cease to be in force (the period can be extended for, for example, parliamentary recesses). The timelines for the three instruments being debated on 12 October 2020 are set out in the table below:

Regulation Laid Came into force End of approval period
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 2) Regulations 2020 22 September 2020 23 September 2020 19 October 2020
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 3) Regulations 2020 23 September 2020 24 September 2020 20 October 2020
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No. 3) Regulations 2020 24 September 2020

(at 11am)

24 September 2020

(at one minute after midnight)

20 October 2020

Both the original regulations include provisions that they expire a year after coming into force and must be reviewed after six months to ensure they continue to be necessary. These provisions have not been altered by any of the subsequent amendments.

Parliamentary scrutiny

The three regulations were considered together in a report by the House of Lords Secondary Legislation Scrutiny Committee on 1 October 2020. The committee noted them as “instruments of interest”. The committee made two comments, both of which concerned the process of making the regulations, rather than the contents of them.

First, it said that the third instrument illustrated its concern with the number of correcting instruments currently being laid. The committee found an “error rate” of 12.5% in July to September 2020, compared to its benchmark of 5%. It said that this is “likely to add to the confusion of users trying to follow and comply with the rapidly changing coronavirus regime”.

Second, it argued that there were too many separate amending regulations, saying that “it is not helpful to have the law scattered between so many instruments”. The committee called on the Government to take a “more structured” approach to regulations.

The regulations have not yet been considered by the Joint Committee on Statutory Instruments or been debated by the House of Commons.

Use of emergency procedure

The Government justified the emergency procedure by which the regulations were introduced by stating that it was “necessary […] so that public health measures can be taken in response to the serious and imminent threat to public health” posed by Covid-19. However, the Speaker of the House of Commons, Sir Lindsay Hoyle, has criticised the practice of publishing regulations shortly before they took legal effect, stating it amounted “contempt”. He said:

The way in which the Government have exercised their powers to make secondary legislation during this crisis has been totally unsatisfactory. All too often, important statutory instruments have been published a matter of hours before they come into force […] The Government must make greater efforts to prepare measures more quickly, so that this House can debate and decide upon the most significant measures at the earliest possible point. The use of made affirmative statutory instruments under the urgency procedure gives rise to particular concern.

Effectiveness of face coverings

Writing in the journal Nature, Lynne Peeples stated that “to be clear, the science supports using masks”. She reported recent studies suggesting face coverings “cut down the chances of both transmitting and catching the coronavirus”. She also noted possible evidence that face coverings “might reduce the severity of infection if people do contract the disease”. However, Ms Peeples said that it is difficult to be definitive about “how well they work or when to use them”.

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