The Health Protection (Coronavirus, Restrictions) (Wales) (Amendment) (No. 3) Regulations 2020 came into force on 11th May 2020 following the Prime Minister’s announcement on Sunday, amending the original regulations which first brought the lockdown into force.
Along with this came the UK government’s controversial new mantra of “Stay alert. Control the virus. Save lives.” The headline of the announcement was that workers are to be “actively encouraged” to return to work, but that restrictions would continue until the rate of infection decreased.
In Wales this message was quickly refuted by the authorities, with the First Minister confirming that the message to “stay at home” has not changed in Wales.
Many are wondering what this means for the lockdown in Wales in practice. I have previously written a guide to the lockdown regulations in Wales when they first came into force and what amounts to a “reasonable excuse” for leaving your home. Below I look at the key changes to those restrictions and how the scope of what amounts to a reasonable excuse has changed.
It remains an offence under reg 8 to leave or remain away from your home without reasonable excuse, but the non-exhaustive list of examples of reasonable excuses has been very slightly updated.
It was previously a reasonable excuse to leave the home to take exercise no more than once a day unless more frequent exercise was needed because of a particular health condition or disability. Reg 8(b) now provides that you may only take exercise “within an area local to the place where the person is living”, but the restriction on this being only once a day has been removed.
The amendment also clarifies that it will be a reasonable excuse to leave the home to collect goods which have been ordered from a business which is still legally open (reg 8(ab)), to visit a waste or recycling centre (reg 8(ia)), or to visit a library (reg 8(ib)).
It is a reasonable excuse to leave the home to shop at a business which is legally open. The recent amendment allows garden centres and nurseries to re-open (Schedule 1, part 4, paragraph 33), meaning it will be a reasonable excuse to go shopping at a garden centre (reg 8(a)).
Although the motive behind the UK government’s message actively encouraging workers to return to work may be politically questionable, nothing in the law has actually changed regarding workers, even in Wales. It was always a reasonable excuse to leave the home to go to a place of work where it was not possible to do that work from home, provided their employer was still lawfully open for business (reg 8(f)).
However, just because the Prime Minister is encouraging you to return to work does not mean you are under a duty to return to work regardless of your health and safety.
If you are able to work from home then you should continue to do so as this is clearly safer than exposing yourself to the risks of gathering in the workplace. For those who cannot work from home, your employer has a duty to ensure you have a safe working environment or provide you with personal protective equipment (‘PPE’) so that you can work safely.
If your employer is forcing you to return to work after the Prime Minister’s announcement but fails to provide a safe working environment or PPE, they will be breaking the law. If you refuse to go into work because your employer will not take steps to protect your health and safety at work and they dismiss you, you may have a claim for constructive dismissal. On this subject you may find our article on health and safety at work and the right to PPE helpful.
Health and health services are devolved matters on which the Welsh Ministers are entitled to pass regulations independently of the UK government. In this instance it appears the Welsh Ministers have decided that the public health response to a particular threat should be different from that of the UK government, which has clearly led to a divergence between the lockdown restrictions in England and Wales.
Those wishing to cross the border from England into Wales for their exercise and open-air recreation have been told that whatever the message and restrictions in England may be, the law in Wales applies as soon as they cross the border.
In England, it is now a reasonable excuse to meet with one person from another household for exercise. That change has not been made in Wales and exercise should still take place either alone, with others in the same household, or with a carer.
It is now also a reasonable excuse in England to leave the home for “open-air recreation” (i.e. to take fresh air at a public open space), not just for exercise, and to meet one person from another household for that purpose. Neither of these changes appear in the Welsh regulations.
The English regulations have also re-opened the property market to allow people to take steps in relation to the sale or letting of properties (e.g. visiting estate agents or property viewings). In Wales, it is still only a reasonable excuse to move house “where the move cannot be postponed” and so the property market is still essentially on hold.
On the other hand, the law in Wales now allows libraries to open and visiting a library is a reasonable excuse to leave your home. This change has not been reflected in England.
The Fixed Penalty Notice provisions have also changed in England, with the amount of each FPN having increased and a maximum possible FPN of £3,200. In Wales, FPNs will still start at £60 (£30 if paid within 14 days). Where a person has already received an FPN at least once, any subsequent FPN will be £120 with no discount for paying early. This was and remains the maximum in Wales.
In truth, little has changed about the lockdown restrictions in Wales. The move to allow exercise only within an area local to the place where a person is living can be criticised on behalf of those people living in remote parts of Wales where there are no open parks or public spaces. There is also no clear definition of what is deemed “an area local to the place where a person is living”, leaving scope to argue how far it is reasonable to travel for exercise. However, exercise is now expressly permitted more than once a day for everyone, not just those with particular health conditions or disabilities.
As I have said previously, the law is still not as strict about when you can leave your home as you may have first thought. A person who has a reasonable excuse for failing to observe the Regulations in their particular case will still have a defence in law. Although the Regulations offer some guidance, they are not and were never an exhaustive list – whether a person has a reasonable excuse for their actions is arguable in any given case.
We are able to offer advice and assistance to any person who is charged under these Regulations or is given a Fixed Penalty Notice that they want to challenge.
As I write this article, over 30,000 deaths in the UK have been attributed to Covid-19. Do not be fooled into thinking the situation is any less serious just because the UK government’s mantra has changed. There is still a lockdown. The lockdown rules and public health advice on social distancing need to be followed if we are to lower the rate of infection and prevent a “second wave” of infections and deaths.
In summary, despite the lack of clarity in the UK government’s public statements this week, the main thrust of the regulations in Wales remains the same – unless you have a reasonable excuse, remain indoors.
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