Regulating the response to coronavirus (Scotland)

Unprecedented times call for unprecedented measures.In the absence of a reasonable excuse, it is now a criminal offence in Scotland for people to leave where they live, as means of enforcing social distancing in response to the coronavirus pandemic.

The Coronavirus Act 2020 passed swiftly through the UK parliament, gaining Royal Assent on 26 March 2020, which enabled the Scottish Government to introduce the Health Protection (Coronavirus) (Restrictions)(Scotland) Regulations 2020 (the “Regulations”) on 27 March 2020.

The Regulations contain expected general public health protection measures to prevent, control and mitigate spread of infection or contamination in relation to people and property. Importantly, they include provisions to make those responsible for decisions in relation to a business accountable.

Where a person leaves where they live, it is a reasonable excuse and a defence to shop for necessities including food or medical supplies or to travel to and from work where working from home is impossible. The Regulations provide other examples; however, what may amount to a reasonable excuse is not prescriptive and will be a matter of discretion for the police on a case-by-case basis.

The Regulations include further measures requiring closure of specific businesses such as cafes, restaurants, cinemas and nail salons and applying business restrictions and various special requirements in relation to people and property. To comply with the Regulations, any business that continues to operate must implement measures required for social distancing in addition to ensuring compliance with any other relevant health and safety duties.

Failure to comply is a criminal offence and applies to individuals and corporates. Police Scotland may use reasonable force to remove someone back to where they live and have the ability to issue fixed penalty notices or prohibition notices as an alternative to prosecution. On prosecution, the penalty is fines, up to a maximum of £10,000 per offence. Where a corporate body or partnership commits an offence and it is due to consent connivance or neglect of a manager or partner, that individual also commits an offence and may face a fine.

For many businesses, deciding how to comply with the Regulations and stay open will not have been or continue to be easy, requiring considerable risk based decisions and resilience. Working from home, enhanced hygiene, reduced operating levels, and reducing work scopes to that which is essential have become commonplace as mitigation measures in response to the risks associated with the virus were implemented. For some businesses, the measures required will be neither practical nor economic necessitating tough decisions. The Regulations including provisions to target those accountable for decisions taken on behalf of a business, is a powerful tool. In addition to any financial fine for individuals or a business, enforcement has the potential affect the reputation of any business adversely. Brand value may prove priceless post-COVID-19.

The Regulations are temporary. They will expire after six months but the Scottish Government must keep them under review every three weeks. We will keep you updated. The pandemic is throwing up unique challenges for all businesses. We are on hand to help to review risk assessments and emergency plans, comment on the affect on your health and safety responsibilities and the implications of complying with the new and unprecedented Regulations.