Photo of a woman on an escalator wearing a face mask

On 18 September 2020 the House of Lords is due to debate regulations requiring customers to wear face coverings in various specified places in England. These regulations are:

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 were laid under the made affirmative procedure on 23 July 2020, and came into force the following day. The subsequent amendment regulations were made at various points in August 2020 and also came into force the day after they were laid.

The regulations 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.

All four of the regulations are due to be debated in the House of Lords on 18 September 2020. Under the made affirmative procedure, both Houses of Parliament must approve the regulations for them to remain in force.

This In Focus article gives an overview of all four instruments. An earlier House of Lords Library In Focus article provides more detail, background and comment on the first regulations (the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020).

What do the regulations do?

The first regulations, the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020, require members of the public to wear a face covering when in a “relevant place”. In these regulations, “relevant places” are defined as:

  • shops;
  • shopping centres;
  • transport hubs, such as stations or terminals;
  • banks and similar financial institutions; and
  • post offices.

A face covering is anything which covers the mouth and nose.

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) Regulations 2020, laid on 7 August 2020, add more places to the definition of “relevant place” where face coverings must be worn, including indoor places of worship, crematoria and burial ground chapels, museums, galleries, cinemas, public libraries, public spaces in hotels (such as lobby areas) and community centres.

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No. 2) Regulations 2020 amend this list further, specifying that face coverings must also be worn in casinos, members’ clubs, social clubs and conference centres.

The obligation to wear a face covering on public transport is contained in separate regulations, the Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020. A House of Lords Library In Focus article provides information on these regulations.

Exemptions

The initial regulations specify a number of places where the public are not required to wear face coverings. This includes restaurants, bars, pubs and sections of “relevant places” that have chairs and tables for eating and drinking. It also specifies places exempted from the definition of “shop”, including cinemas, vets and museums.

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) Regulations 2020 make changes to the list of premises exempt from the definition of a shop. The exempt premises are limited in the second regulations to those providing certain medical services, gyms and photography studios. This has the effect of removing many of the exemptions that were in the first regulations.

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No. 2) Regulations 2020 remove funfairs, theme parks or other premises for indoor sports and leisure or adventure activities from the list of places that are exempt from the definition of a shop. Face coverings must now be worn in these settings as a result of these amendments.

The first regulations include several “reasonable excuses” for not wearing a face covering. These include that the person not wearing a face covering is accompanying someone who relies on lipreading to communicate. Children under the age of 11 are also exempt from the requirement to wear face coverings, as are people working in shops and other relevant places. These exemptions are not amended by any of the subsequent regulations.

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No. 2) Regulations 2020 add exemptions from the requirement to wear face coverings for elite sportspersons and their coaches, referees, and professional dancers and choreographers in the course of their employment, training or competing. Pupils at a religious school are also exempt if they are undertaking education or training in a place of worship.

Enforcement and penalties

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 permit business owners to ask anyone not complying with the regulations to leave the premises. However, business owners are not required to do so. The police can use reasonable force to remove people from relevant places if they are not complying with the regulations. In these regulations, the penalty for non-compliance is a fine of £100, reduced to £50 if paid within two weeks.

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) Regulations 2020 amend the penalty amounts, increasing the penalty for multiple offences. This is intended to discourage repeat offending. The new rules apply to breaches of face covering regulations both in relevant places and on public transport.

Under the new regulations, a first offence still attracts a fine of £100, reduced to £50 if paid within 14 days. However, for each additional breach of the face coverings regulations the penalty amount now doubles, to a maximum of £3,200.

What parliamentary scrutiny has there been?

The House of Lords Secondary Legislation Scrutiny Committee reviewed the first instrument in its report published on 30 July 2020. The committee commented on the fact that shop workers are not required to wear masks but might be enforcing the requirement on the public, stating:

We can reasonably anticipate that this provision may present compliance and enforcement challenges where a shop worker, who is not wearing a mask, asks a member of the public to put one on.

The committee suggested this aspect of the requirement should be kept under review.

In addition, the committee highlighted the fact that the regulations were published only 12 hours before coming into effect. The committee argued that in spite of the urgency required because of the pandemic, “Parliament must also be given adequate opportunity to scrutinise these changes in law”. The report states that “the committee might have wished to explore these issues in more depth had they been given more time”.

Information paragraphs on the subsequent regulations are contained in the House of Lords Secondary Legislation Scrutiny Committee’s report of 10 September 2020, though it did not draw them to the special attention of the House.

What happens next?

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 are due to be debated by the House of Commons Delegated Legislation Scrutiny Committee on 14 September 2020.

The House of Lords debate on all four instruments will take place on 18 September 2020. Baroness Thornton, Labour’s health spokesperson in the Lords, is to move a regret motion to the approval motion for the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 that proposes:

[…] as an amendment to the above motion, at end to insert “and that this House welcomes the introduction of the Regulations, but regrets the delay in bringing forward the Regulations as Her Majesty’s Government has advised the public to wear face coverings in enclosed public spaces since 11 May, announced that face coverings would be mandatory in shops from 24 July on 14 July, and laid these Regulations under the made affirmative procedure on 23 July; further regrets that this delay has caused confusion over where people will have to wear face coverings due to the absence of detailed legal requirements being available in advance; and notes the concerns of the Secondary Legislation Scrutiny Committee in its 19th Report, published on 25 June, which urged Her Majesty’s Government “to ensure that the legislation follows on more closely from any announcement that they have made”.

Image by Ross Sneddon on Unsplash.