In September 2020 the House of Lords is due to debate regulations requiring customers to wear face coverings in shops and other specified places in England. These regulations are called the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020.
The regulations were laid under the made affirmative procedure on 23 July 2020, and came into force the following day. If they are not approved by both Houses before 21 September 2020 they will cease to apply. If approved, the regulations provide that they expire a year after coming into force.
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.
What do the regulations do?
The regulations require members of the public to wear a face covering when in a “relevant place”. Relevant places are defined as:
- 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 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. Other places specifically exempted from the definition of “shop” include:
- premises providing professional, legal or financial services;
- vets; and
Children under the age of 11 are exempt from the requirement to wear face coverings, as are people working in shops and other relevant places.
The 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.
Enforcement and penalties
The regulations 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. The penalty for non-compliance is a fine of £100, reduced to £50 if paid within two weeks.
Why is the Government introducing this requirement?
Announcing the new requirement to wear face coverings, the Health and Social Care Secretary, Matt Hancock, cited two reasons for introducing the measure: to protect shop workers and to give people more confidence to shop in stores.
In his announcement, the Health and Social Care Secretary highlighted the fact that the death rate from Covid-19 has been higher amongst retail assistants than in the general population. He said that mandating face coverings could help protect them.
Matt Hancock also said that there is evidence that “face coverings increase confidence in people to shop”. He cited the British Retail Consortium and the chair of the Federation of Small Businesses as supportive of the measure.
What is the background to the Government’s face coverings policy?
On 11 May 2020, the Government advised the general public in England to use face coverings in enclosed public spaces where social distancing might not be possible, such as in shops and on public transport. The Government stated that the purpose of using such face coverings is to stop asymptomatic people inadvertently spreading Covid-19, rather than to protect the wearer from infection. The Government emphasised that surgical masks and respirators should be reserved for healthcare workers.
On 4 June 2020, the Government announced that face coverings would become mandatory on public transport in England on 15 June 2020.
On 5 June 2020, the World Health Organisation (WHO) updated its guidance on using face masks to prevent the spread of Covid-19. Its previous guidance, published on 6 April 2020, stated that there was insufficient evidence to recommend that the general public either wear or not wear masks. The updated guidance notes that there is still no direct evidence on the effectiveness of universal masking to prevent infection with respiratory viruses. However, it now advises governments to encourage the general public to wear non-medical masks in situations where social distancing cannot be maintained. It also advises that vulnerable people wear a medical mask.
What has the reaction to the measure been?
Responding to the Health and Social Care Secretary’s announcement, the Shadow Health and Social Care Secretary, Jonathan Ashworth, agreed with the new requirement. However, he said that it should have been introduced sooner and that there had been “confusion” over the Government’s face covering policy.
The charity Action on Hearing Loss welcomed the legislation’s exemptions that facilitate lipreading. However, it made a number of recommendations to the Government. These included raising awareness of the legislation’s exemptions, and providing clarity on different face covering options such as those with a clear panel over the mouth.
Paddy Lillis, general secretary of Usdaw, a retail union, supported the measure. However, he emphasised that face coverings should be used in addition to other protections such as social distancing and screens. He also stated that shop workers “are already dealing with more abuse than normal” and welcomed the fact that shop workers will not be required to enforce the wearing of face coverings.
Many large retailers have said they will encourage customers to wear face coverings but staff will not challenge customers who are not wearing them. Some police forces have stated that they will only intervene to enforce the requirement if customers refuse to leave premises or turn violent.
What parliamentary scrutiny has there been?
The House of Lords Secondary Legislation Scrutiny Committee reviewed the 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”.
Image by Nickolay Romensky at Flickr.