The public health regulations that have been in force in England since 2 December 2020 implement a three tiered system of local restrictions. They were amended on 20 December to create a fourth tier, and again on 6 January 2021, when all of England was placed in tier 4. Further amendments lifted some restrictions on 8 March 2021.
Editor's Note: The 'tiers' system in England has been replaced by a series of 'steps' out of lockdown with effect from 29 March 2021. Please see our Out-Law Guide to the Steps Regulations for the latest information.
They were amended on 20 December to create a fourth tier, and again on 6 January 2021, when all of England was placed in tier 4. Further amendments lifted some restrictions on 8 March 2021.
The government has stated that this all-England approach will continue as other restrictions are lifted nationwide in due course. Its stated intention is to lift more restrictions from 29 March 2021. It is not yet clear if the existing framework of tiers will be used for the gradual lifting of restrictions, or whether the option of different areas being placed in different tiers will be held in reserve in the regulations.
The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 effectively dictate what organisations operating across all sectors of the economy can and cannot do within the context of measures designed to contain the spread of Covid-19.
The local restrictions in tiers 1 to 3 are stricter than the three tiers in place prior to the November lockdown. Tier 4 returns some areas to the previous national lockdown restrictions, with minor changes.
Different schedules to the regulations set out the restrictions relevant to each of the three tiers. Schedule 1 addresses restrictions in 'tier 1' areas, deemed to be on 'medium alert'. Schedule 2 addresses restrictions in 'tier 2' areas, deemed to be on 'high alert'. Schedule 3 addresses restrictions in 'tier 3' areas, deemed to be on 'very high alert'. Schedule 3A addresses restrictions in 'tier 4' areas, deemed to be 'stay at home'. The areas falling under each tier are listed in Schedule 4.
The regulations require the local areas falling under each tier to be reviewed every two weeks, and the restrictions that apply in each tier to be reviewed every four weeks. The regulations expire at the end of Wednesday 31 March 2021.
The regulations do not exist in isolation. The government has published a range of other material to supplement the rules, including:
- its Covid-19 winter plan;
- updated general guidance on the local restrictions tiers; and
- guidance on student movement and plans for the end of term.
Restrictions on leaving home
In each of the first three tiers, there are no general restrictions on the reasons for which a person may leave their home.
Whilst the guidance continues to encourage most people to work from home if they can, this is not a requirement in the regulations for tiers 1, 2 and 3.
Tier 4 permits a person to leave their home only if they have a 'reasonable excuse'. There is a lengthy non-exhaustive list of reasonable excuses. These include buying food and accessing essential services, work, education, and exercise or recreation in an outdoor space.
Visits and overnight stays
If a person travels to an area that is in a higher tier, that person is subject to the restrictions that apply in that area while there. The guidance encourages people to avoid travel to tier 3 and 4 areas, unless necessary.
People living in tier 4 areas are not barred by the regulations from travelling to other areas, though this is discouraged by the guidance. However, the general obligation that they must not leave home without a reasonable excuse continues to apply to them, thus restricting their travel to another area in the UK or travel abroad.
The effect of the restrictions on businesses offering accommodation, and on households mixing (see below) mean that overnight stays are not permitted in tier 3 and 4 areas, regardless of whether a person normally resides in an area in tiers 1, 2, 3 or 4, unless an exception applies. Equally, tier 3 or 4 residents are not permitted overnight stays in tier 1 or 2 areas.
Restrictions on retail businesses
All retail shops in tiers 1 to 3 are permitted to open for business, regardless of whether what they sell is considered essential. This includes personal care services, such as hairdressers and beauty salons. All businesses and venues that are open are expected to follow Covid-19 secure guidelines to protect customers, visitors and workers, through ventilation, sanitisation and social distancing.
In tier 4, most retail businesses and others offering services to the public must close, unless deemed to be offering an essential service. The regulations list those that must close and those that may stay open. The list of those allowed to remain open includes food retailers, newsagents, pharmacies and petrol stations.
Restrictions on hospitality businesses
Cafes, bars and restaurants are subject to restrictions on their business activities in each of the four tiers, as described below. All businesses and venues that are open are expected to follow Covid-19 secure guidelines to protect customers, visitors and workers, through ventilation, sanitisation and social distancing.
Night time leisure venues which are considered restricted businesses and services, such as nightclubs and dance halls, must remain closed in all four tiers.
Tier 1 restrictions
Businesses selling food or drink for consumption on their premises are required to operate as follows:
- provide table service only, if the premises serve alcohol;
- no other restriction on serving alcohol;
- stop taking orders after 10pm;
- close between 11pm and 5am.
The restrictions on households mixing (see below) and on persons from tier 4 leaving their homes continue to apply to customers at such businesses.
There are no restrictions on businesses selling food or drink for takeaway or collection to be consumed off the premises, if registered or licensed to do so.
Tier 2 restrictions
Businesses selling food or drink for consumption on their premises are required to operate as follows:
- provide table service only, if the premises serve alcohol;
- alcohol may only be served with a table meal;
- stop taking orders after 10pm;
- close between 11pm and 5am.
The restrictions on households mixing (see below) and on persons from tier 4 leaving their homes continue to apply to customers at such businesses.
There are no restrictions on businesses selling food or drink for takeaway or collection to be consumed off the premises, if registered or licensed to do so.
Tier 3 and 4 restrictions
Businesses are not permitted to sell food or drink for consumption on their premises, though limited exceptions are listed in schedules 3 and 3A. There are no restrictions on businesses selling food or non-alcoholic drinks for takeaway or collection which is ordered in advance to be consumed off the premises, if registered or licensed to do so.
Alcohol may not be sold on the premises, or for takeaway or collection.
Tier 3 and 4 restrictions on indoor entertainment venues
Indoor entertainment venues such as amusement arcades, cinemas, theatres and snooker halls may remain open in tiers 1 and 2, but not in tier 3 or 4.
Tier 3 and 4 restrictions on sports facilities
Leisure and sporting facilities such as gyms, sports courts and facilities, leisure centres, fitness and dance studios, golf courses, and swimming pools may all open in tiers 1, 2 and 3. Leisure and sporting facilities may remain open in tier 3, except for group exercise classes, saunas and steam rooms. In tier 4, they must all close, including outdoor sports facilities.
Face coverings and social distancing
Across all tiers, it remains a legal requirement for a person to wear a face covering in most public indoor settings, unless they come under an exemption. This requirement is contained in The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020.
Guidance remains the same in that it is preferable to stay two metres apart from people that you do not live with where possible, or one metre with extra precautions – such as face coverings – in place. This is not a legal requirement in any of the regulations.
Businesses and venues that are open in any tier are expected to follow the Covid-19 secure guidelines, which provide guidance on social distancing within various businesses. This includes managing contact between customers and between customers and staff, limiting maximum occupancy, and encouraging hand sanitising or washing upon entry to the premises.
Restrictions on gatherings and mixing households
Restrictions on a person meeting with a person from another household differ in each tier. The basic rule in each, which is subject to exemptions, is as follows:
- In tier 1 up to six people from different households can meet indoors or outdoors;
- In tier 2 household mixing indoors is not permitted, but up to six people can meet outdoors, in public or private locations;
- In tier 3 up to six people can meet in some public outdoor settings, but no other household mixing is permitted.
- In tier 4 two people can meet in some public outdoor settings for exercise or recreation, but no other household mixing is permitted.
'Household' remains undefined in the regulations.
The exceptions
The basic rules are subject to exceptions, set out below, which are mostly the same in each tier. As in previous regulations, exceptions are permitted where the person has a "reasonable excuse", and a non-exhaustive list of reasonable excuses is set out.
Support bubbles
The exception of 'linked households' allows a person to mix with another household if any of the following apply:
- the person is the only adult in a household;
- the person has a child under one year; or
- the person lives with a child under five years with a disability who needs continuous care.
These support bubbles constitute one household for the purpose of forming a Christmas bubble (see above).
Other exceptions and permitted gatherings
Other notable exemptions from the above gathering limits on mixed households are familiar from previous regulations, such as:
- childcare;
- education or training;
- work;
- providing voluntary or charitable services;
- to avoid injury or illness, or to escape a risk of harm.
The references to illness do not expressly exclude mental health, and therefore a person should be permitted to mix with another household if necessary for mental health reasons.
Permitted organised gatherings
Regulation 6 defines 'permitted organised gatherings' for tiers 1, 2 and 3. If indoors, they must take place on the premises of a business, a charitable, benevolent or philanthropic institution, or a public body. If they take place outside, they must be organised by such an organisation. The 'required precautions' of a health and safety assessment must be made, and appropriate safety precautions taken.
The gatherings are permitted if individuals participate in groups of no more than six, and households do not mix.
Organised sports activities – outdoors
As an exception to the restrictions on households mixing, a larger gathering of people from multiple households in an organised sport, physical activity or exercise class is permitted if outdoors in tiers 1, 2 and 3.
Organised sports activities – indoors
The rules on permitted organised gatherings apply to organised indoor sport, physical activity or exercise classes in tiers 1, 2 and 3, so that these may continue for groups of six if households do not mix.
In all four tiers, there are exceptions for elite sports and indoor disability sport, which can take place with larger groups mixing.
Shows and spectator events
The regulations do not specifically address rules on large public gatherings for shows, spectator events for sport or business events. However, the government's guidance recommends that 'the required precautions' for the purposes of the regulations on gatherings should be applied to them as follows:
- In tier 1: public gatherings are permitted, for up to the lower of 50% capacity or 4,000 people outdoors or 1,000 people indoors;
- In tier 2: public gatherings are permitted, for up to the lower of 50% capacity or 2,000 people outdoors or 1,000 people indoors;
- In tiers 3 and 4: public gatherings are not permitted, unless a drive-in event in tier 3. Elite sport may continue to take place without spectators present.
A right to protest
There is a specific exception for protests in tiers 1, 2 and 3. These are in addition to a 'picketing' exception in each of these tiers, and can only take place with the 'required precautions'.
Co-written by Rachel Cannon of Pinsent Masons, the law firm behind Out-Law.
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