The Public Health Regulations (updated as at 21 April 2020)

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

Key Changes as at 21 April 2020

General: All businesses (which would include construction sites and manufacturing facilities) must ensure 2 metre distancing between all people on the premises (including business’s own personnel).

Holiday Accommodation Businesses: Technically, prior to 21 April, businesses in the hospitality industry like hotels or hostels would have to shut down any premises completely (other than in some very specific circumstances). Now, those businesses can still operate within their premises to the extent that they are providing information or other services on-line, over the telephone or by post.

Funeral Premises: burial grounds and gardens of remembrance etc around crematoria no longer need to be kept shut.

Agricultural Sector: Livestock markets and auctions can open (subject to compliance with the restrictions set out in the Regulations). Previously it was unclear whether such premises would fall within the category of retail outlets that needed to be closed.

The Regulations

The Health Protection Regulations (Coronavirus) (Restrictions) Scotland Regulations (Regulations) originally 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 statutory footing for the current “lockdown” arrangements. 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.

As a result of the first review of the Regulations, some minor amendments to the original Regulations were brought in to force on 21 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.

A business that provides accommodation services (a hotel or hostel etc.) may provide accommodation to any person who:

a) is unable to return to their main residence;
b) uses that accommodation as their main residence;
c) needs accommodation whilst moving house; or
d) needs accommodation to attend a funeral.

They may also provide accommodation to the homeless, to host blood donation sessions or for any purpose requested by the Scottish Ministers or a local authority. In such circumstances, those businesses can serve food and drink as part of room service.

Duties on businesses continuing to operate

All Businesses (if they do not have to close completely under the regulations) must (as per one of the amendments introduced on 21 April 2020) comply with certain obligations set out in Regulation 4. 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 that are not required as part of the delivery service

What restrictions apply to 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; and 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’ type letter 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.