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Sailing out of lockdown: What can I do and when can I do it?

Anna Roffey of Gainsborough Law discusses the easing of the Covid-19 restrictions on the marine industry. 
 
On 11 June 2020 the Government released specific guidance for boat users in the UK. Before then, the industry was left to draw conclusions from guidance offered to other businesses and industries and wait for comment from the Government on how the Regulations should be applied. The situation has not changed, with no further formal guidance issued in respect of boating. But there has been some comment from Government, albeit via Twitter. Let’s review the full picture:
 
The applicable law
 

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the Regulations”). came in to force at 1300hrs on 26 March 2020 and accompanied the Coronavirus Act 2020 (“the Act”) which came in to force on 15 March 2020. The Regulations are made by the Secretary of State by powers conferred by the Public Health (Control of Disease) Act 1984(a). There have been various amendments, all of which can be found here.

The Regulations did not and do not specifically impose closure restrictions on marinas. British Marine helpfully sought clarity from the UK Government as to how marinas should interpret and apply the Regulations. The Government confirmed to British Marine that there is no explicit requirement to close marinas [per Reg. 4 and Reg. 5] but that marinas should be treated the same way as ‘caravan parks’ which have been directed to close – save for specified exceptions as set out in Reg. 5(4)(a).

Under the Regulations, businesses responsible for providing holiday accommodation, whether “hotel, hostel, B&B, holiday apartment, home, cottage, bungalow, campsite, caravan park or boarding house must cease to carry on that business during the emergency period”. HOWEVER – per Reg. 5(4) (a) (i – iv) a business of this nature MAY continue to carry on their business and keep any premises used in that business OPEN :-

a. To provide accommodation for any person, who –
i. is unable to return to their main residence;
ii. uses that accommodation as their main residence;
iii. needs accommodation while moving house.
[further reasons cited but not relevant to this Note]
 
Note, the above confers an express discretion upon the business i.e. the marina (and an exception to enforcement by the Police (or designated others) under Reg. 8), and a consequential right of sorts (subject to the use of discretion by the marina) for persons who are the subject of Reg. 5(4)(a)(i) – (iv) i.e. unable to return to their main residence, use the accommodation (i.e. boat) for their main residence, or needs accommodation while moving house.
 
The Government produced clear guidelines on the exceptions (which permits and envisages premises (i.e marinas by analogy) remaining open for these purposes) as set out below:
 
“Where people live permanently in caravan parks or are staying in caravan parks as interim abodes where their primary residence is not available, they may continue to do so” [1]
 
Many marinas have been responsibly keeping the circumstances of stranded berth holders under review during this period, and, where appropriate permitting them to remain on their vessels. This, of course, includes liveaboards and those with residential moorings.
 

The June guidance

On 11 June 2020 the guidance (COVID-19 (coronavirus): using a boat inland and on the coast [2] was published. In a nutshell: marinas may now open to allow people to visit and move their boats, and should have measures in place to ensure social distancing.

The main restrictions remain i.e. that you must (at the time of writing) not stay overnight on any boat, unless it’s your primary residence. Operators should not allow skippered day boat hire or skippered day charter boat hire. Operators must not allow hire or charter with any overnight stays. Tourist and trip boat operators must remain closed. Tourist and trip boats will re-open when restrictions on ticketed leisure activities are lifted.

From 23 June 2020, the Government announced a new set of lockdown easing measures. While none of the measures have been applied specifically to boat use, it is reasonable to consider that some of them ultimately will. British Marine (supported by Maritime UK) has published the following statement including a tweet from Nigel Huddleston MP, the Minister for Sports and Tourism:
 
“Holiday hire set for restart in every region of UK – statement made on 23 June 2020
 
The Prime Minister has announced a further easing of restrictions across England which will be welcome news for many. Speaking to MPs, Boris Johnson said that “from 4 July, provided that no more than two households stay together, people will be free to stay overnight in self-contained accommodation.”
 
British Marine supports the statement from the UK Government and understands that the announcement does include overnight stays on boats. Therefore, overnight stays are permitted from 4 July. At this time, we understand this to include the hire of craft by two households as long as they adhere to the new social distancing guidance. However, we are waiting for the UK Government to confirm its guidance where there is more than one household that intends to hire a boat. We were pleased to see the Tourism Minister Nigel Huddleston confirm in a tweet that households can now book a boating holiday. 
The revised social distancing guidance says that people should remain two metres apart where it is possible. Where it is not possible, the guidance now says that a distance of one metre or more should be observed and further mitigation should be taken to reduce the risk of transmission. 
 
The announcements made by the UK Government and the Devolved Administrations over the last few weeks mean that more tourism-related activity will recommence shortly.
 
Every region of the UK now has a timetable and an expected date to work from. In Scotland, the tourism industry is set to reopen on 15 July. In Wales, more self-contained accommodation is expected to reopen from 13 July and in Northern Ireland the re-opening of some self-catering accommodation is set to start on 26 June.  
 
The full statement from the Prime Minister can be read here. We will post further updates soon and understand that additional guidance is set to follow.” [3]
 
As of 24 June 2020, the RYA has republished the Government guidance as announced yesterday (23 June 2020) [4] They have not yet published any further specific guidance for boat users. It is likely that a further update will follow in line with the statement from British Marine.
 
Many marinas are making preparations to permit overnight stays from 4 July 2020 including MDL who were quick to send an email update to all berth holders. Premier (at the time of writing) are yet to confirm their position, though they will likely follow suit.
 
Government Guidance FAQs can be found here [5]. As soon as further specific guidance is published, we will post further details.
 

Gainsborough Law is a boutique barristers’ chambers based in London, set up to service the needs of its clients in a professional, modern and innovative way. To find out more about us and our expert areas of practice, visit www.gainsboroughlaw.com.

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