FCA High Court Test Case: Appendix

 
UK Gov Regulations

The 21 March Regulations (Regulation 2)
On 21 March 2020, the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (“the 21 March Regulations”) were made by the Secretary of State for Health and Social Care pursuant to powers under the 1984 Act. Equivalent provisions were introduced in Wales under the Health Protection (Coronavirus, Business Closure) (Wales) Regulations 2020.

The 21 March Regulations provided for the closure of certain businesses. Regulation 2 provided as follows:

Requirement to close premises and businesses during the emergency

(1) A person who is responsible for carrying on a business which is listed in Part 1 of the Schedule must

(a) during the relevant period

(i) close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and

(ii) cease selling food or drink for consumption on its premises; or

(b) if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises during the relevant period.

(2) For the purposes of paragraph (1)(a), food or drink sold by a hotel or other accommodation as part of room service is not to be treated as being sold for consumption on its premises.

(3) For the purposes of paragraph (1)(a)(ii) and (b), an area adjacent to the premises of the business where seating is made available for customers of the business (whether or not by the business) to be treated as part of the premises of that business.

(4) A person responsible for carrying on a business which is listed in Part 2 of the Schedule must cease to carry on that business during the relevant period.

(5) If a business listed in the Schedule (“business A”) forms part of a larger business (“business B”), the person responsible for carrying on business B complies with the requirement in paragraph (1) if it closes down business A.

(6) The Secretary of State must review the need for restrictions imposed by this regulation every 28 days, with the first review being carried out before the expiry of the period of 28 days starting with the day after the day on which these Regulations are made.

(7) As soon as the Secretary of State considers that the restrictions set out in this  regulation are no longer necessary to prevent, protect against, control or provide a public health
response to the incidence or spread of infection in England with the coronavirus, the Secretary of State must publish a direction terminating the relevant period.

(8) A direction published under paragraph (7) may terminate the relevant period in relation to some of the businesses listed in the Schedule, or all businesses listed in the Schedule.

(9) For the purposes of this regulation

(a) “coronavirus” means severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2);

(b) a “person responsible for carrying on a business” includes the owner, proprietor, and manager of that business;

(c) the “relevant period” starts when these Regulations come into force and ends on the day specified in a direction published by the Secretary of State under paragraph (7).”

The 26 March Regulations (Regulations 3, 4, & 5)
On 26 March 2020, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the 26 March Regulations”) were made by the Secretary of State for Health and Social Care pursuant to powers under the 1984 Act. Similar provisions were introduced in Wales under the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020, in Scotland under the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020, and in Northern Ireland under the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020.

The 26 March Regulations revoked most of the 21 March Regulations and introduced a more expansive regime for business closures, as explained below. The 21 March Regulations remain in force to the limited extent that they provide for offences committed between 21 March 2020 and 25 March 2020 (Regulation 2(2) of the 26 March Regulations).

Regulation 3 of the 26 March Regulations defined the emergency period as follows:

The emergency period and review of need for restrictions

(1) For the purposes of these Regulations, the “emergency period”

(a) starts when these Regulations come into force, and

(b) ends in relation to a restriction or requirement imposed by these Regulations on the day and at the time specified in a direction published by the Secretary of State terminating the requirement
or restriction.

(2) The Secretary of State must review the need for restrictions and requirements imposed by these Regulations at least once every 21 days, with the first review being carried out by 16th April 2020.

(3) As soon as the Secretary of State considers that any restrictions or requirements set out in these Regulations are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England with the coronavirus, the Secretary of State must publish a direction terminating that restriction or requirement. …"

Regulation 4 of the 26 March Regulations was in a similar form to Regulation 2 of the 21 March Regulations and provided as follows:

Requirement to close premises and businesses during the emergency

(1) A person responsible for carrying on a business which is listed in Part 1 of Schedule 2 must

(a) during the emergency period

(i) close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and

(ii) cease selling food or drink for consumption on its premises; or

(b) if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises during the emergency period.

(2) For the purposes of paragraph (1)(a), food or drink sold by a hotel or other accommodation as part of room service is not to be treated as being sold for consumption on its premises.

(3) For the purposes of paragraph (1)(a)(ii) and (b), an area adjacent to the premises of the business where seating is made available for customers of the business (whether or not by the business) is to be treated as part of the premises of that business.

(4) A person responsible for carrying on a business or providing a service which is listed in Part 2 of Schedule 2 must cease to carry on that business or to provide that service during the emergency period.

(5) Paragraph (4) does not prevent the use of

(a) premises used for the businesses or services listed in paragraphs 5, 6, 8, 9 or 10 of that Part to broadcast a performance to people outside the premises, whether over the internet or as part of a
radio or television broadcast;

(b) any suitable premises used for the businesses or services listed in that Schedule to host blood donation sessions.

(6) If a business listed in Part 1 or 2 of Schedule 2 (“business A”) forms part of a larger business (“business B”), the person responsible for carrying on business B complies with the requirement in paragraph (1) if it closes down business A.”

Regulation 5 introduced new closures for retail shops, holiday accommodation providers
and places of worship:

Further restrictions and closures during the emergency period

(1) A person responsible for carrying on a business, not listed in Part 3 of Schedule 2, of offering goods for sale or for hire in a shop, or providing library services must, during the emergency period

(a) cease to carry on that business or provide that service except by making deliveries or otherwise providing services in response to orders received

(i) through a website, or otherwise by on-line communication,

(ii) by telephone, including orders by text message, or

(iii) by post;

(b) close any premises which are not required to carry out its business or provide its services as permitted by sub-paragraph (a);

(c) cease to admit any person to its premises who is not required to carry on its business or provide its service as permitted by subparagraph (a).

(2) Paragraph (1) does not apply to any business which provides hot or cold food for consumption off the premises.

(3) Subject to paragraph (4), a person responsible for carrying on a business consisting of the provision of holiday accommodation, whether in a hotel, hostel, bed and breakfast accommodation, holiday apartment, home, cottage or bungalow, campsite, caravan park or boarding house, must cease to carry on that business during the emergency period.

(4) A person referred to in paragraph (3) may continue to carry on their business and keep any premises used in that business open

(a) to provide accommodation for any person, who

(i) is unable to return to their main residence;

(ii) uses that accommodation as their main residence;

(iii) needs accommodation while moving house;

(iv) needs accommodation to attend a funeral;

(b) to provide accommodation or support services for the homeless,

(c) to host blood donation sessions, or

(d) for any purpose requested by the Secretary of State, or a local authority.

(5) A person who is responsible for a place of worship must ensure that, during the emergency period, the place of worship is closed, except for uses permitted in paragraph (6).

(6) A place of worship may be used

(a) for funerals,

(b) to broadcast an act of worship, whether over the internet or as part of a radio or television broadcast, or

(c) to provide essential voluntary services or urgent public support services (including the provision of food banks or other support for the homeless or vulnerable people, blood donation sessions or
support in an emergency).

(7) A person who is responsible for a community centre must ensure that, during the emergency period, the community centre is closed except where it is used to provide essential voluntary activities or urgent public support services (including the provision of food banks or other support
for the homeless or vulnerable people, blood donation sessions or support in an emergency).

(8) A person who is responsible for a crematorium or burial ground must ensure that, during the emergency period, the crematorium is closed to members of the public, except for funerals or burials.

(9) If a business referred to in paragraph (1) or (3) (“business A”) forms part of a larger business (“business B”), the person responsible for carrying on business B complies with the requirement in paragraph (1) or (3) to cease to carry on its business if it ceases to carry on business A.”

The 26 March Regulations (Other Regulations)

Regulation 6(1) set out the general prohibition against people leaving the place where they were living “without reasonable excuse”. Regulation 6(2) provided a non-exhaustive list of reasonable excuses, including the need to obtain basic necessities, take exercise, seek medical assistance, or fulfil a legal obligation. Regulation 7 prohibited gatherings in public places of more than two people other than in limited circumstances.

Regulation 8(1) provided “relevant persons” with the power to take such action as necessary to enforce any requirements imposed by Regulations 4, 5 or 7. Under Regulation 8(3) and (4), where a relevant person considered that a person was outside the place they were living contrary to Regulation 6(1), a relevant person could direct them to return to the place they were living or remove them to the place where they were living, including by using reasonable force if necessary. “Relevant person” was defined in Regulation 8(12)(a) to include a constable, a police community support officer or a person designated by the Secretary of State.

Regulation 9(1) provided that a contravention of Regulations 4, 5, 7 or 8 without reasonable excuse was an offence and any contravention of Regulation 6 was an offence. Such offences were punishable on summary conviction by a fine (Regulation 9(4)). The parties agreed that there were several reports of enforcement action being taken under these sections in the months after 26 March 2020. Regulation 10(1) provided “authorised persons” with powers to issue fixed penalty notices. “Authorised person” was defined to include a constable, a police community support officer or a person designated by the Secretary of State. Regulation 11 provided that the Crown Prosecution Service, and any person designated by the Secretary of State, could bring proceedings for an offence under the regulations. Regulation 12(1) provided that the regulations would expire at the end of
the 6 month period beginning with 26 March 2020.

Schedule 2 to the 26 March Regulations was entitled “Businesses subject to restrictions or closure” and provided a list of businesses in three parts:

PART 1
1. Restaurants, including restaurants and dining rooms in hotels or members’ clubs.

2.—(1) Cafes, including workplace canteens (subject to sub-paragraph (2)), but not including
(a) cafes or canteens at a hospital, care home or school;
(b) canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence;
(c) services providing food or drink to the homeless.
(2) Workplace canteens may remain open where there is no practical alternative for staff at that workplace to obtain food.

3. Bars, including bars in hotels or members’ clubs.

4. Public houses.
 

PART 2
5. Cinemas.

6. Theatres.

7. Nightclubs.

8. Bingo halls.

9. Concert halls.

10. Museums and galleries.

11. Casinos.

12. Betting shops.

13. Spas.

14. Nail, beauty, hair salons and barbers.

15. Massage parlours.

16. Tattoo and piercing parlours.

17. Skating rinks.

18. Indoor fitness studios, gyms, swimming pools, bowling alleys, amusement arcades or soft play areas or other indoor leisure centres or facilities.

19. Funfairs (whether outdoors or indoors).

20. Playgrounds, sports courts and outdoor gyms.

21. Outdoor markets (except for stalls selling food).

22. Car showrooms.

23. Auction Houses.


PART 3
24. Food retailers, including food markets, supermarkets, convenience stores and corner shops.

25. Off licenses and licensed shops selling alcohol (including breweries).

26. Pharmacies (including non-dispensing pharmacies) and chemists.

27. Newsagents.

28. Homeware, building supplies and hardware stores.

29. Petrol stations.

30. Car repair and MOT services.

31. Bicycle shops.

32. Taxi or vehicle hire businesses.

33. Banks, building societies, credit unions, short term loan providers and cash points.

34. Post offices.

35. Funeral directors.

36. Laundrettes and dry cleaners.

37. Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health.

38. Veterinary surgeons and pet shops.

39. Agricultural supplies shops.

40. Storage and distribution facilities, including delivery drop off or collection points, where the facilities are in the premises of a business included in this Part.

41. Car parks.

42. Public toilets.”


Categories of business into which policyholders fall

For the purposes of these proceedings, the parties adopted a categorisation of businesses in light of the 21 March Regulations and the 26 March Regulations as follows:

Category 1: businesses listed in Part 1 of Schedule 2 to the 26 March Regulations, such as cafes and restaurants. This category was affected by Regulation 2(1) of the 21 March Regulations and Regulation 4(1) of the 26 March Regulations.

Category 2: businesses listed in Part 2 of Schedule 2 to the 26 March Regulations, such as cinemas and theatres. This category was affected by Regulation 4(4) of the 26 March Regulations. It should be noted that this list expanded the earlier list in Part 2 of the Schedule to the 21 March Regulations,
that subset being affected by Regulation 2(4) of the 21 March Regulations.

Category 3: businesses listed in Part 3 of Schedule 2 to the 26 March Regulations, such as food retailers and pharmacies. This category was excluded from the scope of Regulation 5(1) of the 26 March Regulations.

Category 4: businesses offering goods for sale or for hire in a shop, or providing library services, such as retail stores, not listed in Part 3 of Schedule 2 to the 26 March Regulations. This category was affected by Regulation 5(1) of the 26 March Regulations.

Category 5: businesses not mentioned in the 21 March Regulations or the 26 March Regulations at all, including professional service firms such as accountants and lawyers, as well as construction and manufacturing businesses.

Category 6: businesses providing holiday accommodation, which were affected by Regulation 5(3) of the 26 March Regulations.

Category 7: places of worship, which were affected by Regulation 5(5) of the 26 March Regulations, together with nurseries and schools.