In this authored article, Gary Grant, Barrister at Francis Taylor Building and Vice Chairman of the Institute of Licensing looks in detail at the new 'Rule of 6'.

Introduction: 11^th hour “dog-law” and a plea

Local authorities, police forces, trade operators and their advisors will have turned on their computers on Monday morning, 14 September 2020, to find the new “Rule of 6” COVID-19 lockdown regulations had finally landed. The changes have been achieved by an amending set of regulations: The Health Protection (Coronavirus, Restrictions) (No.2)(England)(Amendment)(No.4) Regulations 2020. ^[1] As the snappy title suggests they amend the earlier The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (“the Principal Regulations”). The titles of these regulations are increasingly resembling a complex equation beloved of physicists and mathematicians. A consolidated version of the “Principal Regulations”, containing all the numerous amendments^[2] up to and including 14 September 2020, can be found here.

The changes came into force from a minute past midnight the previous Sunday night. They will govern the duties and obligations on us all until they are, inevitably, amended again in response to a dynamic health emergency.

The Secretary of State must review the need for restrictions and requirements imposed by the Principal Regulations every 28 days (the next review must be carried out by 28 September).^[3] The Principal Regulations will still expire at the end of six months from 4 July 2020 (i.e. 4 January 2021).^[4]

The policy reasons for the changes are set out in the Explanatory Memorandum issued by the Department of Health and Social Care: ^[5]

The transmission rate has increased over recent weeks, in particular amongst young people, and compliance with social distance guidance has decreased. As a result it has been considered necessary to introduce new measures to limit the spread of coronavirus.

The “Rule of 6” has been trailed since the Prime Minister’s announcement on 9 September 2020 with accompanying “FAQ Guidance” issued by the Cabinet Office. Guidance was also issued the same day. This initial guidance was revised and then re-issued on 14 September. It can be found here: “Guidance on Meeting with others safely (social distancing)”.

It is becoming a legal and regulatory scandal that the Government is leaving the publication of the actual laws (as opposed to announcements and non-binding guidance) that govern citizens freedoms and liberties to beyond the 11^th hour (in this case just after 11.30pm on Sunday night). It leaves local authority and police officers, who will have to enforce these measures, to play catch-up with laws that are already in force in addition to their existing heavy professional duties and workloads. Operators and event organisers are similarly left in the dark and so are unable to fully prepare for the impact of the new restrictions and readily work out what they can, and cannot, lawfully do. Once legislation is published it needs to be understood and disseminated. That does not happen instantly. New laws are not learnt by osmosis. If the idea of the “Rule of 6” was to simplify the law for the general public, then the 25 pages of densely-typed A4 sheets (including footnotes), in which the new Regulations are set out, will raise an eyebrow or two.

The repeated belatedness in the publication of these and earlier measures – which will have come into force before the overwhelming majority of people they effect will have seen them, let alone understood them - reminds one of the 18^th/19^th century legal philosopher Jeremy Bentham’s warnings against criminalisation by “dog-law”. In a famous passage, more recently quoted by Lord Bingham in a House of Lords case that considered the offence of causing a public nuisance (R v Rimmington & Goldstein [2005] UKHL 63 at [33]), Bentham wrote:

“It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do – they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it.”

These regulations have, unusually, been made by the Home Secretary (Priti Patel, in contrast to the previous ones issued by Secretary of State for Health) in the exercise of powers conferred by section 45C and 45R of the Public Health (Control of Disease) Act 1984. They are contained in a Statutory Instrument (“SI”) that is subject to the Parliamentary “affirmative procedure”. This means that they automatically become law once signed by the Minister but can only remain law if both Houses of Parliament approve them within 28 days. In calculating 28 days, 13 September is the first day.  They require a debate of up to 90 minutes, usually in a Delegated Legislation Committee (“DLC”). But commentators^[6]  have noted that DLC’s are temporary committees where the MP’s are chosen by party Whips. There is no secretariat provided to support the MP’s with advice on technical issues and the debates rarely last more than half an hour. The DLC may either approve or reject the SI, but it cannot amend it. Hence, it is a rare occurrence that an SI subject to the affirmative procedure is rejected. There is considerable political debate raging about the lack of effective Parliamentary scrutiny  of laws which make unprecedented infringements up the lives and freedoms of English citizens and residents (these regulations only apply to England but we can expect to see similar, but not necessarily identical, measures introduced in Wales).

Before we turn to the new regulations themselves, as practitioners, regulators and operators we make a modest call to our legislators: please do not leave it until just before midnight on a Sunday night before publishing the laws you wish the country to follow and the authorities to enforce.

Business Closures

There are no changes to business closure provisions within these new provisions. The only businesses that must stay closed, regardless of any measures taken, remain those set out in the amended version of Schedule 2 of the Principal Regulations^[7], namely: nightclubs, dances halls, discotheques (or similar^[8]), sexual entertainment venues and hostess bars.^[9] However, these businesses may open if they re-constitute themselves as a type of venue that does not fall foul of the proscribed list.

The Rule of 6: the starting point

The starting point is that during the emergency period, no person may participate in a gathering, indoors or outdoors, which consists of more than six people.

A “gathering” is defined in regulation 5(6) as: “when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other”.

This “rule of 6” has a considerable number of exceptions, both old and new, where gatherings of more than 6 people are permitted. Some are clear but others are, to put it politely, somewhat opaque and complex. Some of the exceptions may well be unenforceable in the real world that most of us inhabit.

The household exception

If you are fortunate (or unfortunate) enough to live in a household with more than 6 people then you can all still remain together wherever you are – indoors or outdoors.^[10]

In addition, “linked households” may gather in numbers greater than 6.^[11] These are defined in a new reg. 5ZA. Where the first household comprises of one adult (with or without children), the adult may choose to be linked with a second household. Then the two households can gather together without limit on numbers. A household may only be linked to one other. This provision would enable households where a child’s parents live apart to continue to gather.

Work, education and activity exceptions

There are a number of activities and occupations that are exempt from the rule of 6, if the gathering is reasonably necessary, as follows:^[12]

1. For work purposes
2. For the provision of voluntary or charitable services.
3. For education, training, registered childcare or supervised activities provided for children (including wraparound care, youth groups and activities and children’s playgroups).
4. To provide emergency assistance, or to enable someone to avoid injury or illness or to escape a risk of harm.
5. To provide care or assistance to a vulnerable person.
6. To enable child contact arrangements where the parents live apart.
7. To fulfil a legal obligation (e.g. to attend court or jury service).
8. For elite sports purposes.^[13]
9. To enable formally organised “support groups” to meet (e.g for victims of crime, addicts, new parents, people with long-term illnesses, and gender or bereavement issues).^[14]

Weddings, births, protests, etc.

Exceptions to the rule of 6 also exist to permit attendance at certain life-cycle ceremonies and other significant events.^[15] In some cases (as indicated below), the gathering organiser must carry out a formal risk assessment^[16] and take all reasonable measures to limit the risk of transmission of the coronavirus (including taking into account relevant Government guidance). These are referred to below as “5G measures”.^[17]

These events include:

1. Wedding or civil partnership ceremonies, with a maximum of 30 people, in a religious premises or premises approved for marriages etc. The organiser must take 5G measures.
2. Wedding or civil partnership receptions, with a maximum of 30 people, other than in a private dwelling. The organiser must take 5G measures.
3. Where the person is attending a birth at the expectant mother’s request.
4. Protests organised by a business, a charitable, benevolent or philanthropic institution a public body, or a political body. The organiser must take 5G measures.
5. In criminal justice accommodation – e.g. prisons, bail hostels etc.

Significant event gatherings: ceremonies, rites or rituals

Gatherings of up to 30 persons are permitted for certain “significant events” if 5G measures are taken.^[18] Significant events are defined as a “ceremony, rite or ritual”:

1. To mark or celebrate a significant milestone is a person’s life, according to their religion or belief, such as events to celebrate a rite of passage or entry into a particular faith (other than a birthday) or coming of age; or
2. To mark a person’s death or celebrate their life following their death, such as a funeral, according to the deceased person’s religion or belief.

This exception would cover christenings, barmitzvahs, and funerals among other events. (In both cases, “belief” includes a lack of belief and so, for instance, would cover secular ceremonies as well as religious ones).

The Guidance suggests these significant events do not include wakes, “other than for religious, ceremonial purposes”. (This may lead to some interesting arguments in court about the relationship between alcohol and religion. Winston Churchill’s comment springs to mind: “My rule of life prescribed as an absolutely sacred rite smoking cigars and also the drinking of alcohol before, after and if need be during all meals and in the intervals between them”).

To fall within the permitted exception the gathering must also:

1. take place at premises (other than a private dwelling) which are operated by a business, a charitable, benevolent or philanthropic institution or a public body (or part of such premises); or
2. In a public outdoor place (other than above).

Premises operated by a business, charity, public body (etc) & gatherings in public outdoor places

The purpose of these particularly tortuous provisions appears to be to permit groups of 6 people to join larger gatherings so long as they do not “mingle” with other groups. (The word “mingle” is unique to these provisions and has never before been used in UK legislation).

Business, charitable, public bodies premises (etc) ^[19]

A person may participate in a gathering in excess of 6 people where:

1. It takes place on or at premises (or part of such premises), other than a private dwelling, which are operated by a business, a charitable, benevolent or philanthropic institution or a public body; and
2. The person participates alone or as a member of a “qualifying group” and does not become a member of any other group at the gathering or “mingle” with another person from a different group.

A “qualifying group” means a group of no more than 6 persons or consists only of persons who are members of the same household (or two linked households).^[20]

(This regulation does not in itself require the business (etc) to comply with 5G measures, presumably because of their existing duty to do so under the Health and Safety at Work Act 1974).

Gatherings in public outdoor spaces ^[21]

Gatherings may also take place in excess of 6 people where:

1. The gathering takes place in a public outdoor space (other than above)^[22];
2. The gathering has been organised by a business, a charitable, benevolent or philanthropic institution, a public body or a political body; and
3. The gathering organiser takes 5G measures.

As above, the person participating in the gathering must do so alone or as a member of a “qualifying group”, and must not join or mingle with another group.

Sports gatherings and fitness activities

Sports gatherings or fitness activities may exceed 6 persons where the person concerned is taking part in that gathering.^[23] A “sports gathering” is defined in regulation 5(5)(D) as: “a gathering which is organised for the purposes for [sic] allowing persons who are not elite sportspersons to take part in any sport or other fitness related activity”.

In addition, the gathering:

1. Must be organised by a business, a charitable, benevolent or philanthropic institution, or a public body,
2. Must take place on “relevant premises” or outdoors, and
3. The manager or organiser must take 5G measures.

For these purposes “relevant premises” means premises (other than a private dwelling):

1. which are operated by a business, a charitable, benevolent or philanthropic institution or a public body, or
2. which are part of premises used for the operation of a business, a charitable, benevolent or philanthropic institution or a public body.

The Guidance indicates: “this does not include informal sport or fitness activity with friends and family”.

Licensed outdoor physical activity gatherings

Outdoor gatherings, whether or not in a public place, are an exception to the rule of 6 in certain other limited circumstances where the organiser takes 5G measures.^[24] These are when the gathering is for an “outdoor physical activity” and a licence, permit or certificate issued by a public body (other than a driving licence or a licence to serve food or alcohol) is held by the gathering organiser or any person taking part in the activity. ^[25]

Suggested examples of activities that may fall within this category are grouse shooting and paint-balling, which are likely to require firearms licences or shotgun permits.

Indoor raves

Under regulations 5(4), no person may participate in a gathering of more than six persons at an indoor rave.^[26]

Nor, under regulation 5A, may a person hold, or be involved in the holding, of an indoor rave gathering consisting of more than 30 persons (known as “section 63 type” gatherings).

However a person is not to be taken as involved in the holding of a gathering if that person’s only involvement in the gathering is by attendance at the gathering. ^[27] The fixed penalty fine for an infringement of regulation 5A is £10,000.

Private dwelling gatherings: reg.5B ^[28]

No person may hold or be involved in the holding of a gathering which:

1. Consists of more than 30 persons;
2. Takes place in a private dwelling, on a vessel (other than a houseboat or vessel used for public transport) or on land that is a public outdoor place (which is not operated by a business, charitable, benevolent or philanthropic institution or a public body, or part of such premises);
3. Is not a section 63 type gathering (i.e an indoor rave); and
4. Is not an excepted gathering.^[29]

The fixed penalty fine for an infringement of regulation 5B is also £10,000.

Powers to restrict access to public places

The Secretary of State retains his power to direct that access to a specified outdoor place is restricted.^[30]

Local restrictions

Nothing in the Principal Regulations permits a person to participate in a gathering in contravention of the local lockdown provisions relating to Leicester, Blackburn with Darwen and Bradford, North of England and Bolton.

Enforcement^[31]

As before, “relevant persons” may take may take such action as is necessary to enforce any requirement imposed by regulation 4, 5 or 6(10) or (11). This includes issuing directions to disperse or remove a person from a gathering. They may also issue prohibition notices where there are contraventions and it is necessary and proportionate to do so.

A “relevant person” means a constable, police community support officer, or a person designated by the Secretary of State. It also includes a designated local authority officer but only in relation to business closures under regulation 4.^[32]

Offences & fixed penalties^[33]

A person who without reasonable excuse contravenes a requirement in regulation 4, 5, 6(10), (11) or 7 commits a summary offence punishable with an unlimited fine.

Fixed penalty notices may be issued by an “authorised person” as an alternative to prosecution. Where the contravention is of regulation 5A or 5B the fixed penalty must be £10,000. In other cases it is £100 (reduced to £50 if paid within 14 days in most situations). There is then a sliding scale of fines that double for repeat offences up to a maximum of £3,200.

An authorised person means a constable, police community support officer, or a person designated by the Secretary of State. It also includes a designated local authority officer but only in relation to offences relating to business closures under regulation 4 or the obstruction under regulation 8(2) of a person carrying out a function under regulation 7.

Proceedings for an offence under these Regulations may be brought by the Crown Prosecution Service and any person designated by the Secretary of State.^[34]

Track and trace details

These regulations do not make provision for mandatory track and trace details being collected by businesses as envisaged. It is anticipated these requirements may be introduced by future regulations. Businesses are still advised to have regard to the sector specific guidance in this regard.

Conclusion

These regulations demonstrate that the “Rule of 6” is simpler to state in a press conference than it is to legislate for. Whilst many of the provisions are clear, some are so tortuously constructed as to challenge any reader on a first (and often second etc.) read. Given the tight deadlines under which the statutory draftsman are working under, quite possibly because their political masters are still debating the policy issues until the last moment, slips can be forgiven. But a longer lead-in time would be welcome by regulators and operators alike where even 3-working days of advance notice now seems like a luxury.

^[1] The Explanatory Memorandum to the No.4 regulations is here: https://www.legislation.gov.uk/uksi/2020/986/pdfs/uksiem_20200986_en.pdf

^[2] On July 11 and 13 changes were made to enable the reopening of outdoor swimming pools and outdoor water parks; nail bars and salons, tanning booths and salons, spas and beauty salons, massage parlours, tattoo parlours, and body and skin piercing services. A further amendment to the Original Regulations was made on 25 July to enable the reopening of indoor swimming pools, including indoor facilities at water parks; indoor fitness and dance studios; and indoor gyms and sports courts and facilities. The Original Regulations were subsequently amended on 15 August to enable the reopening of casinos, indoor skating rinks, indoor play areas, including soft play areas, bowling alleys and conference centres and exhibition halls

^[3] Regulation 3(2)

^[4] Regulation 11.

^[5] Explanatory Memorandum, paragraph 7.6: https://www.legislation.gov.uk/uksi/2020/986/pdfs/uksiem_20200986_en.pdf

^[6] See Hansard Society article in Prospect Magazine, 11 September 2020: https://www.prospectmagazine.co.uk/politics/brexit-parliament-scrutiny-secondary-legislation-statutory-instruments-ministers

^[7] The enabling provision is regulation 4(1). There are some exceptions (e.g. to host blood donation sessions) set out in reg.4(2)

^[8] i.e. any other venue which—

1. opens at night,
2. has a dance floor or other space for dancing by members of the public (and for these purposes members of the venue in question are to be considered members of the public);
3. provides music, whether live or recorded, for dancing.

^[9] See Schedule 2 of the No.2 Regulations.

^[10] Reg 5(1)(a)

^[11] Reg. 5ZA

^[12] Set out in reg. 5(3)

^[13] “Elite sportsperson” is defined in regs. 1(5) and 1(6)

^[14] “Support group” is defined in reg. 5(5A)

^[15] See reg.5(3)

^[16] Which would satisfy the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999, whether or not the gathering organiser or manager is subject to those Regulations (reg.5(5G)(a)

^[17] Set out in reg.5(5G)

^[18] Reg. 5(3)(g). “Significant events” defined in regs. 5B and 5C.

^[19] Reg 5(1)(b), 5(2) and 5(2B)

^[20] Regs. 5(2B)

^[21] Reg. 5(1)(b), 5(2A) and 5(2B)

^[22] “Public outdoor place” (which probably bears the same meaning as “public outdoor space”) is widely defined in regulation 1(5) as any outdoor place to which the public have or are permitted access, whether on payment or otherwise, and includes: (a) land laid out as a public garden or used for the purpose of recreation by members of the public; (b) land which is “open country” as defined in section 59(2) of the National Parks and Access to the Countryside Act 1949, as read with section 16 of the Countryside Act 1968; (c) land which is “access land” for the purposes of Part 1 of the Countryside and Rights of Way Act 2000 (see section 1(1) of that Act); (d) any highway to which the public has access; (e) Crown land to which the public has access;

^[23] Reg.5(3)(j). A person taking part in a sports gathering does not include a spectator or a parent of any child who is taking part in the gathering.

^[24] Reg 5(3)(l)

^[25] Reg 5(5)(F)

^[26] Reg 5(4). It is not entirely clear how this provision and regulation 5A inter-relate although the difference in fixed penalty fine available is stark.

^[27] Reg 5A. s.63 of the Criminal Justice and Public Order Act 1994 defines a rave as a gathering of 20 or more persons (whether or not trespassers) at which amplified music is played during the night (with or without intermissions) and is such as, by reason of its loudness and duration and the time at which it is played, is likely to cause serious distress to the inhabitants of the locality; and for this purpose— (a) such a gathering continues during intermissions in the music and, where the gathering extends over several days, throughout the period during which amplified music is played at night (with or without intermissions); and

(b)“music” includes sounds wholly or predominantly characterised by the emission of a succession of repetitive beats.

^[28] Reg 5B

^[29] Excepted gatherings are defined in reg 5(B)(3A) as gatherings where:  

1. all the people in the gathering are from the same household, or are members of two households which are linked households in relation to each other, or        
2. paragraph (2), (2A) or (3) of regulation 5 applies to the gathering.

^[30] Reg 6. Similar powers exist under The Health Protection (Coronavirus, Restrictions) (England) (No.3) Regulations 2020.

^[31] Reg.7

^[32] Regs 7(10)(b) and (11)

^[33] Regs 8 and 9.

^[34] Reg. 10