Gary Grant and Charles Holland summarise the new system brought in through the 3-Tier Covid Regulations and focus on its impact on licensed premises.

Introduction to the 3-tiers

In an effort to simplify the confusing, and in part confused, patchwork of divergent national and regional regulations that restrict businesses and public gatherings during the COVID-19 pandemic, on 12 October 2020 the Prime Minister announced a new 3-tier system for England.

Operators, regulators and practitioners were given the relative luxury of being able to read the Regulations – which amounts to the actual law - some 30 hours before they came into force on Wednesday 14 October 2020. The House of Commons had the opportunity to debate and vote on the Regulations the day before.

The graduated scale of restrictions are organised into 3-tiers of alert levels: Medium (Tier 1), High (Tier 2) and Very High (Tier 3). Each tier is graced with its own set of Regulations containing the prohibitions and, even more numerous, exceptions. Geographical areas can be moved between the tiers according to the level of Covid infections and risks.

The “Medium” tier (Tier 1) covers most of England and reflects, in general, the previous national measures. The Regulations are here: The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020. Guidance has been published here.

The “High” tier (Tier 2) broadly reflects the previous special local restrictions that applied in the North East and North West. The Regulations are here: The Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) Regulations 2020. Guidance has been published here.

At the time of writing (18 October 2020), certain districts in the following areas are included within the High tier: London (all 32 boroughs), Greater Manchester (likely soon to be moved into Very High Tier), Cheshire, Greater Manchester, Derbyshire (including Chesterfield), City of York, West Yorkshire (including Leeds and Bradford), South Yorkshire, Cumbria, Durham, Northumberland, Tyne and Wear (including Newcastle and Sunderland), Tees Valley, West Midlands (including Birmingham and Wolverhampton), Leicestershire, Nottinghamshire, and Surrey (Elmbridge). More areas may be added in due course.

The “Very High” tier imposes even more severe restrictions, including the closure of pubs and bars unless they operate as restaurants. The Regulations are here: The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020. Guidance has been published here. Merseyside local authority areas and Lancashire are included in the Very High tier. By virtue of an amendment made on 16 October 2020, local authority areas in Lancashire were moved from the High Tier into the Very High Tier. Despite the intention of simplifying the system, the Very High tier affects different categories of businesses and services depending on whether they are in “Liverpool City Region” or in “Lancashire”.

A full list of the geographical areas within each tier is available here.

Interrelation with other Regulations

The 3 Tier regulations are not free-standing. They interrelate with:

• The Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020 (“the Contact Details Regulations”), which require service providers (including the entire hospitality sector) to display the NHS QR code at their premises and to request and record details of customers who do not scan that code with smartphones.
• The Health Protection (Coronavirus, Restrictions) (Obligations of Undertakings) (England) Regulations 2020 (“the Obligations of Undertakings Regulations”), which amongst other things places restrictions on the sizes of groups bookings that are accepted for, or admitted entry, and allowable distances between tables.
• The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Regulations 2020).
• What remain of The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (“the No. 2 Regulations), which survive in part to give the Secretary of State a direction to restrict access to public places.

The Medium Tier (Tier 1) restrictions

For areas within the Medium Tier the current national regulations are, in the main, replicated. There are however some notable changes that have been introduced, without fanfare, by way of amendments to, and partial revocation of, regulations within the No. 2 Regulations and the Obligations of Undertakings Regulations.

In summary, the main restrictions and exceptions to note are as follows:

1. No person may participate in a gathering within the Tier 1 area which consists of more than 6 people (the so-called “Rule of 6”). This applies to both indoor and outdoor settings (with a number of exceptions including: for work, education and training, protests, larger households or linked households or support groups, elite sports, an organised outdoor sports or fitness related gathering or indoor sports for disabled persons). For persons present within the Tier 1 area but “living in” the Tier 2 (“High”) or 3 (“Very High”) areas, the Rule of 6 indoors is trumped by more restrictive provisions in the Tier 2 or 3 Regulations.

2. Nightclubs, discos, dance halls must remain closed (whatever time they operate).

3. “Any other venue” which opens at night, has a dance floor or other space for dancing by members of the public, and provides music for dancing must remain closed (unless it ceases to provide music and dancing).

4. Sexual entertainment venues and hostess bars must remain closed.

5. The 10pm-5am curfew remains for most hospitality businesses, including pubs, bars, restaurants, casinos, social clubs, bowling alleys, cinemas, theatres, amusement arcades, indoor leisure centres, funfairs (indoors or outdoors), theme parks, bingo halls and concert halls. This means that the person “must not carry on that business or provide that service” between these hours. (The curfew does not apply to supermarkets, convenience stores, pharmacists or chemists or petrol stations). In relation to the curfew period:

1. Hospitality businesses may sell food or drink for consumption off the premises between 10pm-5am by way of deliveries in response to online or phone orders or to customers who collect the food or drink that has been pre-ordered provided the purchaser does not enter inside the premises. Drive-thru facilities are also permitted to operate.
2. Cinemas, theatres or concert halls may continue to operate after 10pm for the purpose of concluding a performance which began before that time.
3. Motorway service areas may continue to operate their restaurants, cafes, take-away food services after 10pm so long as alcohol is not served.
4. Airports or maritime ports, or international train terminals may operate after 10pm, including their restaurants, cafes, bars and pubs, so long as no alcohol is served and the areas are only accessible to passengers, crew or other authorised persons (but not to members of the general public). Similarly, with aircraft, trains or vessels providing a public transport service providing no alcohol is served during the curfew period.
5. Workplace canteens may operate during the curfew period if there is no practical alternative for staff at that workplace to obtain food or drink (and alcohol may be served, although it has been reported that those in the Palace of Westminster have, diplomatically, chosen not to avail itself of this privilege).

6. As before, pubs, bars, restaurants and other premises that serve alcohol for consumption on the premises (and this is not the same as simply holding a premises licence permitting alcohol sales), may only sell food or drink if the food or drink is ordered by, and served to, a customer who is seated on the premises. All reasonable steps must be taken to ensure the customer remains seated whilst consuming the food or drink. (This also applies to “adjacent areas” where seating is made available, whether or not under the control of the business).

7. Where the business does not serve alcohol for consumption on the premises, food or drink may be sold for consumption on the premises only if the person takes all reasonable steps to ensure the customer remains seated whilst consuming it. (This also applies to “adjacent areas” where seating is made available, whether or not under the control of the business).

8. The earlier prohibition on customers singing (in groups of 6 or more) or dancing has been abolished.

9. The earlier prohibition on playing music louder than 85db(A) has also been abolished.

10. Operators must continue to take all reasonable measures to ensure that :

1. No bookings are accepted for a group of more than 6 persons (unless an exception applies).
2. No persons are admitted to the premises in a group of more than 6 (unless an exception applies).
3. No person joins another group or otherwise acts in a way which would contravene the No. 2 regulations.

11. Organised sport and licensed physical activity (e.g. grouse shooting) are permitted in outdoor settings.

12. Indoor or organised sport are permitted and must follow social contact rules.

13. Retail remains open.

14. Wedding ceremonies and receptions are permitted if not in private dwellings and attended by no more than 15 people (provided a sit-down meal and Covid-secure measures are taken).

15. Funerals are permitted up to 30 persons or 15 for wakes (or similar).

16. Prohibited indoor gatherings (to which no exception applies) of more than 30 persons in a private dwelling or vessel are subject to a “super fine” (by way of fixed penalty notice) of £10,000 for the organiser.

17. Gatherings of over 30 people on public outdoor land are not permitted unless organised by a business, etc. or falling within an exception and Covid-safe risk assessed precautions are in place. Organisers of prohibited gatherings are subject to a “super fine” of up to £10,000.

18. Indoor illegal raves of over 30 persons are prohibited and subject to a “super fine” of £10,000.

19. Large organised events (e.g. concerts) are permitted subject to national guidance and in line with wider social contact limits.

20. Gyms, public buildings and libraries can remain open.

The High Tier (Tier 2) restrictions

The High Tier prohibitions essentially mirror those previously found in the NENW Regulations, albeit with some differences.

The starting point, and - we suggest - the key to understanding the Tier 2 restrictions, are, once more, the restrictions on gatherings.

The restrictions on gatherings can be divided into those that apply to anyone present in the area covered by Tier 2 restrictions, and to anyone living in the area covered by the Tier 2 restrictions (wherever in England they may be).

Within the Tier 2 area:

(a)         no person may participate in a gathering which takes place indoors which consists of two or more people (unless an exception applies). This effectively outlaws a few friends from different households meeting in a pub or bar for a drink;

(b)         no person may participate in a gathering which takes place outdoors which consists of more than six persons, unless an exception applies. (This amounts to the Rule of 6, as applicable to both indoors and outdoors situations in Tier 1 areas).

Outside the Tier 2 area:

(a)         no person living in the Tier 2 area may participate in a gathering which takes place indoors which consists of two or more people (unless an exception applies);

(b)         no person living in the Tier 2 area may participate in a gathering which takes place outdoors which consists of more than six persons (unless an exception applies). This appears to be an (unnecessary) repetition of the Rule of 6 as applicable within a Tier 1 area. In a Tier 3 area, the stricter Tier 3 area rules apply.

In one narrow sense, this a liberalisation on the NENW Regulations, which prohibited gatherings of two or more people in private dwellings (defined to include any garden or yard or “other appurtenance of the dwelling”).

The more draconian restrictions on indoor gatherings has given rise to a new exception (derived from the NENW Regulations, where it was introduced after a general outcry when those regulations were first introduced), with the concept of a “linked childcare household”, where a household with a child aged 13 or under can link with a single second household for the purpose of providing informal childcare to the child aged 13 or under.

The Tier 2 Regulations (as with the NENW Regulations) are highly invasive: the restriction on indoor gatherings of two or more (save where exceptions apply) in effect constitutes an assault on normal function of the hospitality sector, banning even two persons from sharing a meal together indoors unless one of the exceptions apply.

The Obligations of Undertakings Regulations interact with the Tier 2 Regulations to impose the obligations on hospitality operators. They must take “all reasonable measures to ensure that”:

(a)         no bookings are accepted for a group of more than 6, where the group is to be located outdoors, or for a group of 2 more, where the group is to be located indoors, unless an exception applies;

(b)         no persons are admitted to the premises in a group of more than 6, where the group is to be located outdoors, or for a group of 2 more, where the group is to be located indoors, unless an exception applies;

(c)          no person joins another group or “otherwise acts in a way which would contravene the Tier 2 regulations”.

There is as yet no clear guidance on what might constitute “all reasonable measures”, and, given the myriad of exceptions, it seems hard if not impossible to see how hospitality venues could possibly “ensure” that rules on gatherings are adhered to. What might constitute reasonable measures? This would in our opinion include asking those who book and attend in groups of more than 6 outside or 2 or more inside whether they are from the same household (or from two linked households) (or whether another exception applies). It is difficult to make any clear suggestions as to what further information might be required. It is a question of fact and degree depending on the circumstances. If a couple turn up to make a booking indoors for themselves with 2 children, it will be pretty obvious that they are all from the same household. Conversely, a group of 10 students who wish to sit outside might require more than a simple yes or no from the leader. But there will be - rapidly - a limit to what the venue can do. Most people do not walk around with proofs of address, student driving licences typically display parental addresses, passports do not show addresses, and students may reside in different flats within single blocks of accommodation which consist of different households.

The premises closure provisions and curfew provisions are as with the Tier 1 Regulations, as are the restrictions on service to seated customers.

The Very High Tier (Tier 3) prohibitions

Again, the starting point are the restrictions on gatherings. These are as per the restrictions in the High (Tier 2) regulations but with some additional restrictions.

Again restrictions on gatherings can be divided into those that apply to anyone present in the area covered by Tier 3 restrictions, and to anyone living in the area covered by the Tier 3 restrictions (wherever in England they may be).

Within the Tier 3 area:

(a)         no person may participate in a gathering which takes place in a private dwelling or indoors which consists of two or more people (unless an exception applies);

(b)         no person may participate in a gathering which takes place outdoors in a public outdoor place (which must be free to access or be an outdoor sports ground or sports facility, botanical garden or garden or grounds of a castle – whether or not for an eye-test exercise, stately home or historic place) which consists of more than six persons (unless an exception applies). So, the Rule of 6, as applicable to both indoors and outdoors situations in Tier 1 areas, and outdoor situations in Tier 2 areas.

(c)          no person may participate in a gathering which takes place in any other outdoor place which consists of two or more people unless (unless an exception applies).

These restrictions are more severe than those applying in the Tier 2 areas in that:

• the rule of 6 no longer applies to gardens or yards of private dwellings (unless the dwelling is a castle, stately home or historic place);
• the rule of 6 does not apply to all public outdoor places, and so would exclude - for instance - places that require payment for entry which are not sports grounds, botanical gardens or the grounds of a castle etc).

Outside the Tier 3 area:

(a)         no person living in the Tier 3 area may participate in a gathering which takes place indoors which consists of two or more people (unless an exception applies);

(b)         no person living in the Tier 3 area may participate in a gathering which consists of two or more persons which takes place outdoors in a place which is not a public outdoor place to which either the public do not have to pay to access; or which is not an outdoor sports ground or sports facility, botanical garden or garden or grounds of a castle, stately home or historic place (unless an exemption applies)

(c)          no person living in the Tier 3 area may participate in a gathering which takes place in any other outdoor place which consists of more than six persons (unless an exception applies): this is an (unnecessary) repetition of the Rule of 6 as applicable within a Tier 1 or 2 area.

In addition to the categories of business for which closure is mandatory in Tier 1 and 2 areas, in Tier 3 areas the following businesses must also close:

In the Liverpool City region:

(a) betting shops and adult gaming centres;

(b) casinos;

(c) indoor gyms, fitness and dance studios;

(d) indoor sports facilities.

In Lancashire:

(a) betting shops and adult gaming centres;

(b) casinos;

(c) bingo halls;

(d) soft play areas (but not where used by persons with a disability within the meaning of the Regulations)

(e) car boot sales.

Wedding ceremonies of up to 15 persons are permitted, as in Tier 1 and 2 areas, but wedding receptions are not.

A person responsible for the carrying on of a business of a public house, bar or “other business involving the sale of alcohol for consumption on the premises” must cease to carry on that business unless alcohol is only sold for consumption on the premises as part of a “table meal” and the meal is such “as might be expected to be served as the main midday evening meal, or as a main course at either such meal”.

Although the phrase “substantial table meal”, commonly encountered in restaurant conditions attached to premises licences, does not appear in these Regulations, it may become relevant to note that in Timmis v Millman [1965] Crim LR 107, the Lord Chief Justice did not interfere with a finding of the magistrates’ court that a substantial sandwich, with the all-important side plate of pickles and beetroot, amounted to a substantial table meal.

A “table meal” here is further defined as a meal eaten by a person seated at a table, or at a counter or other structure which serves the purposes of a table and is not used for the service of refreshments for consumption by persons not seated at a table or structure serving the purposes of a table.

Duration of the Regulations

Each of the Regulations expire after 6 months. The need for the continuation of the Regulations must be reviewed at least once every 28 days by the Secretary of State. The Secretary of State must review whether each area that is part of the High (Tier 2) Regulations should continue to part of the High area at least once every 14 days (curiously, there is no such requirement in the case of Very High (Tier 3) Regulations).

Designations

Designations made under earlier regulations carry forward to each of the three-tier Regulations.

Enforcement

Each of the 3 Tier Regulations adopts the same enforcement provisions.

1. A “relevant” person may take such action as is necessary to enforce any restriction.

2. Relevant persons include the police and local authority officers, although designated local authority officers can only enforce the measures relating to premises (and not those relating to people gatherings).

3. A criminal offence is committed if a person, without reasonable excuse, contravenes a restriction. The offence is punishable with an unlimited fine.

4. A system of fixed penalty notices applies. (Amendments to the FPN penalties in associated regulations have been also been made). In relation to the first FPN under the 3-tiers regulations the penalty is £200 (reduced to £100 if paid within 14 days) rising to £6,400 for repeat breaches.

5. In the case of illegal gatherings or raves consisting of over 30 people the FPN is £10,000.

6. For breaches of the business restrictions, the FPN is £1,000 for the first offence doubling up to £10,000 for repeat offences.

Conclusion

This is no more than a summary of the Regulations - they are complex and in some cases very difficult to follow. The vast range of human conduct is inherently difficult, if not impossible, to micromanage by regulation. There will come a point (and perhaps that point has already been reached) where the Regulations - in attempting to set rules but with exceptions to prevent undue repression - become so complex as to defy understanding by the vast majority of the persons they seek to control.

However, in so far as licensed premises are concerned, the principal rules, for example those relating to the 10pm curfew (in all tiers), the inability to serve alcohol without food in Very High tier areas, and the prohibition on nightclubs and dance venues opening, are clear enough.

Minor unintended breaches by operators are likely to meet with advice and warnings from police and local authority officers. Persistent, deliberate and flagrant breaches, on the other hand, can expect to be met with more serious and immediate enforcement action.

The regulations are likely to be crippling to the economic viability of much of the licensed trade. They should be in force only so long as necessary, and only in so far as they achieve their public health objective in a proportionate and effective manner.

Gary Grant and Charles Holland are barristers at Francis Taylor Building.  Gary Grant is Vice Chairman of the Institute of Licensing.