2020-04-08 13:43:08
A guide to lockdown law in Scotland
Ben Christman, trainee solicitor (benchristman@lsa.org.uk)
8 April 2020
1. Introduction
If you are living in Scotland at present, you
will probably know that the Scottish Government has imposed a ‘lockdown’ to
halt the spread of COVID-19. Similar lockdowns are in place in England, Wales
and Northern Ireland - and across the world.
To put the lockdown into force in Scotland, the
Scottish Government passed a law which requires certain businesses to close and
severely restricts the movement of individuals and the holding of public
gatherings. It contains penalties and enforcement powers for the police where
the lockdown is contravened.
The lockdown has drastic implications for civil
liberties. In ordinary times these measures would be inconceivable, and the
Scottish Government’s view is that they are justified by the ongoing public
health emergency.
This post is an attempt to put Scotland’s
lockdown law into plain English, in order to help people to better understand
what the conditions of the lockdown are. It discusses the restrictions on
movement and gatherings and the attendant enforcement powers and penalties. For
brevity, it does not examine the restrictions on businesses, nor does it look
at the law elsewhere in the UK in any detail.
This guide is structured as follows: it first
makes two constitutional points which are important to understand the context
of the lockdown law in Scotland, it second sets out the legal background to the
lockdown in Scotland, and then it explains the provisions of the lockdown law
on:
This is not legal advice. If you are unclear as
to what you can and cannot do under the lockdown you should seek your own legal advice.
2. The lockdown and the constitution
To better understand the lockdown law in
Scotland, it is important to briefly go through two key constitutional
concepts: the rule of law and devolution.
One of the key principles of the rule of law is that public authorities (e.g.
Police Scotland and the Scottish Government) must act lawfully. Public
authorities must not act beyond their powers which are set out in law. The rule
of law remains firmly in place during the lockdown.
The former UK Supreme Court justice Jonathan
Sumption has brought this abstract concept to life with his criticism of Derbyshire police for stopping people from exercising
in the Peak District. His point that the police “have no power to
enforce ministers’ preferences but only legal regulations” is one that should
be respected during the lockdown.
Devolution is important in this context too.
Scotland has its own parliament and legal system. As will be discussed in the
next section below, the Scottish Ministers have passed Regulations which give
legal effect to the lockdown in Scotland.
Each of the four nations of the UK have their
own lockdown regulations (see here for England, Wales and Northern Ireland). While the general content of these
regulations is similar – there are also some crucial differences.
For example, in Wales, the law requires people
to not leave their home to exercise more than once per day – this is not a legal requirement
in Scotland. And in England, “any person designated by the
Secretary of State”
can be given powers to enforce the lockdown law, whereas in Scotland the
restrictions on movement and gatherings are enforceable by the police only.
The key devolution point to take onboard is
that Scotland has its own particular lockdown law, so any commentary or media
coverage you see about lockdown laws in the rest of the UK should be treated
with caution in terms of its relevance for Scotland.
3. Legal background to the lockdown
The Coronavirus Act 2020 gave the Scottish Ministers powers
to make ‘health protection regulations’ in response to COVID-19. This Act is
the parent legislation for the lockdown law in Scotland.
The Scottish Ministers have used this power to
pass The Health Protection (Coronavirus)
(Restrictions) (Scotland) Regulations 2020. These Regulations (now referred to in this
post as ‘the Regulations’) came into force on 26 March 2020. They set out the
terms of the lockdown in Scotland.
4. The Regulations
a. Review and expiry of the lockdown (Regulations
3 and 11)
The Scottish Ministers must review the need for
the lockdown at least once every 21 days, and the first review must be carried
out by 16 April 2020.
As soon as the Scottish Ministers consider that
any of the Regulations’ restrictions or requirements are no longer necessary to
deal with COVID-19, they must publish a direction terminating that restriction
or requirement. The Scottish Ministers can decide to terminate any or all of
the terms of the lockdown that are contained in the Regulations.
The Regulations will expire six months after
they came into force (by 26 September 2020). This is known as a ‘sunset
clause’. The Regulations’ parent legislation also has its own sunset clause (discussed here).
b. Restrictions on movement (Regulation 5)
Regulation 5 requires that no person may leave
the place where they are living, unless they have a ‘reasonable excuse’ for
doing so. What is a reasonable excuse is discussed below under the heading
‘offences, defences and penalties’.
The ‘place’ where a person lives for the
purposes of the Regulations includes “the premises where they live together
with any garden, yard, passage, stair, garage, outhouse or other appurtenance
of such premises”. This means that the restrictions on movement do not apply to
these areas (as far as they relate to a person’s home).
The restrictions on movement do not apply to
people who are homeless. The term ‘homeless’ is not defined in the Regulations.
It will usually be clear whether or not a person is homeless. However, if
further definition is needed, the term is defined in homelessness law (the Housing (Scotland) Act 1987, Section 24).
c. Restrictions on gatherings (Regulation 6)
Regulation 6 states that “no person may
participate in a gathering in a public place of more than two people”, unless
the gathering meets any of the following conditions:
(a)where all the persons in the gathering are
members of the same household,
(b)where the gathering is essential for work
purposes,
(c)to attend a funeral, or
(d)where reasonably necessary—
(i)to facilitate a house move,
(ii)to provide care or assistance to
a vulnerable person,
(iii)to provide emergency
assistance, or
(iv)to participate in legal
proceedings or to fulfil a legal obligation.
The word ‘gathering’ is not defined in the
Regulations.
Regulation 6 is worded in a way which suggests
that there no exceptions to the restriction on gatherings other than those
which are quoted above. It is an offence to contravene the restriction on
gatherings in Regulation 6.
However, the Regulations also provide that
there is a defence to contravening Regulation 6, where someone can show that
they had a ‘reasonable excuse’. This is discussed below under the heading ‘offences,
penalties and defences’.
d. Enforcement (Regulation 7)
The Regulations give “constables” several
powers to enforce the lockdown in respect of the restrictions on movement and
gatherings. Who is a ‘constable’ is defined in different legislation - effectively this refers to Police
Scotland.
The enforcement powers are very broad - they
give Police Scotland wide discretion to enforce the lockdown.
They include the powers to:
e. Offences, defences and penalties (Regulation
8)
It is an offence for a person to do any of the following:
A person who commits an offence under the
Regulations “is liable, on summary conviction, to a fine not exceeding the
statutory maximum”. This means a fine of up to £10,000.
There is a defence available to people charged
with committing an offence under the Regulations. The defence is available where
someone can show that, in the circumstances, they had a ‘reasonable excuse’ for
committing what would otherwise be an offence.
‘Reasonable excuses’ are listed in Regulation
8(5) as including the need:
(a)to obtain basic
necessities, including food and medical supplies for those in the same
household (including any pets or animals in the household) or for a vulnerable
person and supplies for the essential upkeep, maintenance and functioning of
the household or the household of a vulnerable person, or to obtain money,
(b)to take exercise, either
alone or with other members of their household,
(c)to seek medical assistance,
including to access any of the services referred to in paragraph 37 or 38 of
schedule 1,
(d)to provide care or
assistance to a vulnerable person, including to provide emergency assistance,
(e)to donate blood,
(f)to travel for the purposes
of work or to provide voluntary or charitable services, where it is not
reasonably possible for that person to work, or to provide those services, from
the place where they are living,
(g)to attend a funeral of—
(i)a member
of the person’s household,
(ii)a close
family member, or
(iii)if
no-one within sub-paragraphs (i) or (ii) are attending, a friend,
(h)to fulfil a legal
obligation, including attending court or satisfying bail conditions, or to
participate in legal proceedings,
(i)to access critical public
services, including—
(i)childcare
or educational facilities (where these are still available to the child in
relation to whom that person is the parent of, or has parental responsibility
for or care of, the child),
(ii)social
services,
(iii)services
provided by the Department of Work and Pensions,
(iv)services
provided to victims (such as victims of crime),
(j)in relation to children who
do not live in the same household as their parents, or one of their parents, to
continue existing arrangements for access to, and contact between, parents and
children, and for the purposes of this paragraph, “parent” includes a person
who is not a parent of the child, but who has parental responsibility for, or
who has care of, the child,
(k)in the case of a minister
of religion or worship leader, to go to their place of worship,
(l)to move house where
reasonably necessary,
(m)to avoid injury, illness or
to escape a risk of harm.
In addition to the list quoted above, there may
be other ‘reasonable excuses’ to leave the home. This is because regulation
8(5) frames the list of reasonable excuses with the wording “a
reasonable excuse includes the need…”
The use of the word ‘includes’ suggests that
the above list is not exhaustive, so there may be other reasons which are not
included on the list which could provide an individual with a ‘reasonable
excuse’.
However, anyone who carries out an activity
which would contravene the restrictions on movement and gatherings in the
belief that they may have a ‘reasonable excuse’ which is not listed in the
Regulations, will risk prosecution. We will not have certainty on what may or
may not be a reasonable excuse until the courts interpret this part of the
Regulations.
f. Fixed penalty notices – Regulation 9
A constable can issue a ‘fixed
penalty notice’ (FPN) to a person who the constable “reasonably believes” has
committed an offence. An FPN can only be given to someone aged 16 or over.
An FPN is “a notice offering the
person to whom it is issued the opportunity of discharging any liability to
conviction for the offence by payment of a fixed penalty in accordance with
these Regulations”. In other words, when someone is given an FPN, they are
offered a choice: either pay a fine and avoid any further liability, or face a
potential criminal charge and conviction.
If you receive an FPN, you
have 28 days to decide whether you want to contest it. If you want to challenge
an FPN, you should seek legal advice immediately.
The penalty payable by someone
who gets an FPN is £30 until the end of the period of 28 days after the date of
the FPN. After 28 days the penalty then rises to £60.
However, if a person has
previously received an FPN, then they get no reduction for paying promptly. The
penalties rise rapidly with each subsequent FPN. The penalty for the second FPN
is £120. Any subsequent FPN penalty doubles, up to a maximum penalty of £960.
The form of an FPN, their effect
and the procedure that applies to an FPN are the same as those which apply
under Sections 129 to 134 of the Antisocial Behaviour
(Scotland) Act 2004.
An FPN is required to meet
several requirements in terms of what is written on the FPN. An FPN must:
(a)state the alleged offence;
(b)give such particulars of
the circumstances alleged to constitute the offence as are necessary to provide
reasonable information about it;
(c)state the amount of the
fixed penalty;
(d)state the clerk of
the justice of the peace court to whom, and the address at which, the
fixed penalty may be paid;
(e)inform the person to whom
it is given of the right to ask to be tried for the alleged offence and explain
how that right may be exercised;
A constable has the discretion to
revoke an FPN where they determine that either: (a) the offence to which the
FPN relates was not committed, or (b) the notice ought not to have been issued
to the person named in the FPN.
