Lockdown relaxations you read in news and social media apply to England and Wales.
Wales is very significantly different from England. Unreported by the media, quietly at 6:00 p.m. on Friday 10th July the Wales Assembly Government revoked its lockdown restrictions almost in entirety and replaced them with a “No. 2” set by the same title. Unlike the same quiet exercise conducted in England on 4th July when restrictions were generally relaxed, in Wales the relaxation has been slight but powers of enforcement significantly strengthened.
Unlike in England, guidance is mandatory in Wales
Wales has for some time now, in contrast to the non-compulsory guidance in England, made 2 metre social distancing a mandatory legal requirement. This remains the case and controllers of premises used to carry on a business or provide a service are required to ensure persons numbers admitted to premises are restricted to make it possible to maintain a 2 metre distance.
It is important to note that the Welsh Ministers had, unlike England, previously made it an obligation only to ‘have regard to’ the guidance it issues. The new regulations have been beefed up and remove any room for doubt regarding enforceability.
Unlike in England, all reasonable steps must, as a matter of law not guidance, be taken to minimise the risk of exposure to coronavirus
Controllers of premises are now required to take “all reasonable measures” to minimise the risk of exposure to coronavirus.
Under the previous regulations, the stated requirement was only to ‘have regard to’ the guidance. However, while someone might have ‘had regard’, they might also have paid little heed. The guidance is now given force by the explicit primary legal requirement for controllers of premises to required to take “all reasonable measures” for “the purposes of minimising the risk of exposure to coronavirus at the premises”. It is when doing so that they are required to have regard to the guidance.
Beyond 2 metre distancing, specific examples given of minimising exposure include limiting close face to face interaction and maintaining hygiene by means such as: changing layouts; controlling use of entrances, passageways, stairs, lifts, toilets and kitchens etc and installing barriers or screens and providing or requiring use of PPE (personal protective equipment) (reg 12(2)(b)).
Just in case no one should be aware, businesses also have to provide information to those entering or working at the premises about how to minimise the risk of exposure to coronavirus. (reg 12(2)(c))
Unlike in England, extensive reading is required
What’s more, the guidance may incorporate (by reference or transposition) guidance, codes of practice or other documents published by another person (for example, a trade association, body representing members of an industry or a trade union). The number and volume of documents created by the Wales Assembly Government and which businesses may be required to read and be imposed on them with likely legal obligation but without debate in the Assembly appears, at first blush at least, quite staggering.
Gathering is not the same as is England
In Wales, definition of gathering remains very broad, being simply when two or more people are in the same place in order to do something together it (section 1 (5) (a)). This allows for gatherings to be considered unlawful regardless of individual intentions, unlike in England. as explained in our beach post.
Also, whereas in England outdoor gathering is restricted by number (now 30), in Wales the number isn’t important. The gathering can only be of a single household or two households where all the adults have agreed they should linked and considered as one. It is not permitted to chop and change your households so make your choice wisely. (reg 2(4) to (7))
Whereas no restriction is placed on numbers gathering indoors in England, Wales restricts indoor gathering too although both indoor and outdoor gatherings are subject to the ‘reasonable excuse’ exemption. (reg 14(1) and (2)). It should be remembered that the reasonable excuse list includes to avoid injury or illness or escape a risk of harm. This excuse may be of wider importance than people generally appreciate, even in the unlikely event they are aware of it. Read more here about why Anxiety is a ‘reasonable excuse’ to ignore Covid restrictions and guidance.
Unlike in England, working from home is mandatory
In Wales, if it reasonably practicable to work or to provide voluntary or charitable services from from home, then home is where you are required to be. (reg 16)
As before and as in England, the police and local authorities can enforce the restrictions on businesses, services and workplaces imposed by the regulations. This is done by ‘enforcement officers’, principally:
- police officers
- police community support officers
- persons designated by local authorities (for example environmental health officers)
- persons designated by the Welsh Ministers
The local authority enforcement officer can enforce contravention of a requirements to close indoor bars and restaurants, businesses and holiday accommodation, crematoriums, community centres and public paths and land. (reg 17(2)).
Unlike in England, there is enforcement of guidance and all reasonable measures
In fact, enforcement officers in Wales have the power to issue compliance notices and fines wherever they consider”all reasonable measures” have not been taken that are necessary for the purposes of minimising the risk of exposure to coronavirus.
Further, enforcement officers have for some months now been given significant liberty in enforcing the removal of civil liberties. This has occurred without debate, comment or announcement.
Prior to 25th April, powers to issue prohibition notices could only be exercised where the enforcement office ‘reasonably believed’ both that there was a contravention and that it was ‘necessary and proportionate’ to give the prohibition. Since that date, and continuing in the new regulations, the enforcement officer only has to have ‘reasonable grounds for suspecting’ a contravention and to “consider” it necessary and proportionate to issue the notice.
This is a low threshold by any standards. There may be few premises where an alert enforcement officer was not able to suspect some reasonable measure wasn’t being taken and consider it necessary and proportionate to issue the notice. If the Covid-19 threat is serious and imminent, why should it ever not be reasonable to consider issuing a notice necessary and proportionate?
And if an enforcement officer merely has reasonable grounds to suspect the regulations are being or are about to be contravened on premises, they have the power to enter those premises using reasonable force if necessary.
Masks, like in England, must be worn on public tranport
See our previous post, masks are not compulsory (yet). We will no doubt be revisiting this issue very soon.
If a responsible person is found not to be complying with regulations, that person may be subject to a fixed penalty of £60 (this reduces to £30 if paid within 14 days; the penalty doubles for any subsequent breaches up to a maximum penalty of £1920) or may be charged with a criminal offence and ultimately convicted and be required to pay a fine.
A person who, without reasonable excuse, obstructs, contravenes a direction, or fails to comply with an instruction from an enforcement officer under the regulations commits an offence.
As for other continued closures and restrictions on businesses by comparison to England, that is a matter for another post. This one has been long enough and exhausting.
Welcome to Wales. Croeso i Gymru.
Warning: Law and circumstances can change very quickly. Please note the date of publication of any blog post and check for any updates on the issues addressed. In any event, we do not condone or encourage breaching the law and neither the above nor any information posted on this website constitutes legal advice. It must not be relied upon as such and specialist legal advice should be taken in relation to specific circumstances. Please read our disclaimer.