Public Health Regulations

An update to this article can be found here: https://www.wjm.co.uk/news/the-public-health-regulations-up-dated-as-at-29-may-2020

The Health Protection (Coronavirus) (Restrictions) Scotland Regulations came into force on the evening of 26 March 2020. The Regulations give effect to Schedule 19 of the Coronavirus Act.

The Regulations provide the power to the Scottish Ministers to effect a “lock down” of the country. This has so far been advisory only but the Regulations will provide the statutory footing for it. An emergency period has commenced and will end when any restriction or requirement imposed by the Regulations is terminated by the Minsters. The restrictions and requirements imposed by the Regulations are open to review at least once every 21 days and the first review is to be done by the 16 April 2020.

Closure of certain businesses
The Regulations require that during the emergency period certain businesses must close or cease certain activity (i.e. selling food or drink for consumption on the premises). Those businesses include (but the list is longer) restaurants, cafes, bars and pubs, cinemas, theatres, casinos, skating rinks, gyms and car showrooms. There are savings in place for hotels or other accommodation where food and drink may be served as part of room service.

Duties on businesses continuing to operate
Certain businesses are permitted to remain open. These include food retailers, off licenses, pharmacies, vets, funeral directors, and petrol stations. There are duties imposed on the persons responsible for carrying on those businesses. These are that all reasonable measure are taken to ensure that a distance of 2m is maintained between any person on the premises or waiting to enter the premises; and to ensure that the person only admits people to its premises in small numbers to ensure it is possible to maintain that distance.

A person responsible includes the owner, proprietor, and manager of that business. Reasonable measures are not defined in the Regulations however some supermarket businesses have started to outline the 2m distance using floor markings in certain parts of the stores, e.g. at checkouts. Notices to customers to maintain the requisite distance and staff members at doors limiting the number of persons entering may also be sensible.

Delivery based businesses are permitted to continue operations, but must close those parts of their premises not required to carry on business on a “delivery only” basis and cease to allow persons on its premises not required for that purpose.

What restrictions apply to a person’s movement?
Unless the person has a defence under the Regulations, it is unlawful for a person to leave the place where they are living.

What defence may be open to a person leaving their house?
The defences are outlined in the Regulations. They include (the list is longer) leaving to: obtain basic necessities and supplies; exercise; travel for the purposes of work (but only where it is not possible to work from home); attend a funeral of a close family member; move home where reasonably necessary.

What penalties may apply?
A constable may issue a fixed penalty notice to anyone over 16 years old and who is reasonably believed by the constable to have committed an offence under the Regulations. The fixed penalty payable is increased on a person’s second and third offences under the Regulations.

What should clients do?
Clients who continue to operate businesses during the emergency period will need to keep in mind the provisions and restrictions that will apply under the Regulations.

As well as maintaining the 2m rule in their premises, it would be sensible for employers to ensure that staff carry with them proof of employment that can be exhibited to a constable if stopped outside of work or home. A letter headed ‘to whom it may concern’ from the employer vouching the employee’s employment or requirement to be outside would be a good idea.

Staff undertaking deliveries should similarly ensure that they keep on their person any customer orders, delivery schedule or similar document. Employers who now find themselves operating ad hoc delivery services should ensure that staff have the appropriate vehicle insurance to do so.

Wright, Johnston & Mackenzie LLP are able to advise businesses or individuals on the terms of the Regulations and other concerns arising from the Covid-19 outbreak.