Coronavirus (COVID-19) – social distancing

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This blog outlines restrictions placed on the general public in Scotland with the aim of limiting the spread of  Coronavirus (COVID-19) through social distancing. It does not deal with restrictions on businesses.

Initial ‘lockdown’ advice

On 23 March 2020, the Scottish Government significantly strengthened previous advice on social distancing, stating in a news release that:

“From tonight the only permissible reasons to leave your home are as follows:

    • to shop for basic necessities and that should be limited to once a day
    • to take exercise once a day – but alone or with your own household, not in groups
    • for medical reasons or to care for a vulnerable person
    • to travel to essential work if that cannot be done at home.”

The restrictions did not at that time have legal force, but the news release went on to say that:

“In agreement with Police Scotland, officers will be permitted to deploy ‘soft enforcement’ of these measures, prior to the Scottish Government taking legal powers from Thursday.”

Powers in the UK Coronavirus Act 2020

The UK Government brought forward emergency legislation to allow for the enforcement of social distancing across the UK. It was passed and received Royal Assent on 25 March, becoming the Coronavirus Act 2020.

Many of the provisions in the Coronavirus Act, including ones on social distancing, deal with areas of responsibility devolved to Scotland. Given this, the approval of the Scottish Parliament was sought as part of parliamentary scrutiny. This was given on 24 March.

The following provisions of the Coronavirus Act gave the Scottish Government powers to allow the legal enforcement of social distancing restrictions:

  • section 49 and schedule 19 – powers to make health protection regulations
  • section 52 and schedule 22 – powers to issue directions relating to events, gatherings and premises. 

Health protection regulations

On 26 March, the health regulation powers were used by the Scottish Government to make the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020. They came into force immediately (in advance of approval by the Scottish Parliament on 1 April) and include the following restrictions on individuals:

  • no person may leave the place where they are living
  • no person may participate in a gathering in a public place of more than two people.

Breaching these restrictions is a criminal offence. However, both restrictions are subject to exceptions. For example, the two-person restriction on gathering in a public place does not apply where all those gathered are members of the same household.

A range of exceptions, applying to both restrictions, are listed as examples of where a person may be able to provide a reasonable excuse.

The examples of reasonable excuse provided in the regulations include the ones listed by the Scottish Government on 23 March, although there are some differences of detail. For example, the regulations do not expressly state that exercise should be no more than once a day. However, it should also be noted that the examples in the regulations are expressed in terms of a ‘need’ to do something.

Additional examples of reasonable excuse include continuing parental contact with a child under the age of 16 who does not live with one or both parents. On this point, Scottish Government guidance on social distancing, published on 27 March, refers to children under 18.

The examples of reasonable excuse provided in the regulations are not intended to be exhaustive.

Enforcement of the restrictions may include the issuing of a fine – a fixed penalty notice – by the police. A policy note published along with the regulations explains that a police constable may issue such a notice to:

“anyone over 16, if the constable has reason to believe an offence has been committed under the regulations. By a fixed penalty notice, a person may discharge any liability for the offence by payment of that penalty within a specified period. The levels of fine are set at £30 if paid within 28 days, or £60 thereafter. This rate will increase if penalties have already been issued to the same person up to a maximum of £960.”

The regulations themselves state that they cease to have effect after six months. During this period, the Scottish Government is required to keep the continued necessity of the various restrictions under review.

On 30 March, Police Scotland issued a news release indicating that early signs suggested high levels of public compliance with the restrictions; with relatively low levels of formal enforcement being required.

Directions relating to events, gatherings and premises

Before using the power to issue directions, the Coronavirus Act provides that the Scottish Government must issue a declaration of serious and imminent threat to public health. Such a declaration was published on 25 March, followed by a supplementary declaration on 30 March.

However, at the time of writing, the Scottish Government has not issued any directions relating to events, gatherings and premises.

Frazer McCallum, Senior Researcher, Justice