Steven Barrett

The new mask regime: a legal guide

The new mask regime: a legal guide
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Mask wearing has been compelled by law. Very soon the government has said that compulsion will end (in England at least). There is little in life more terrifying than being British and put in a new social situation without clear rules. So while we contemplate the dread of inevitably offending someone no matter what we do, it might be helpful to clarify what this means from the point of view of the law.

The first and most important point is that just because the government stops making mask wearing a legal requirement, that doesn’t mean that mask wearing stops being a legal requirement. Why?

Because our legal system gives lots of powers to people other than government. Most of the rules or obligations you follow in any given day won’t flow directly from government.

One of the obvious areas where masks could come back is private property. In our system, the landowner sets the law of their land. That is how banks ban the wearing of crash helmets or clubs I never went to ban people wearing certain clothes I probably never owned. Everyone knows that if the landlady of the pub says you are barred, you are.

So the idea that when the government goes away, we’ll somehow be a lawless state is a bit of a fantasy. We’ve never been a wild west — we have 800 years of settled law.

If the owner (or tenant) of a property sets a rule that you have to wear a mask then you have to. You will have to wear a mask on their land if they say so, like it or not, if you want to be on their land. So the reason you may have to wear a mask may change. But the requirement may not.

If a landowner says you have to wear a mask to come in, you can refuse and go elsewhere. That’s also perfectly normal. But there will be no defying them if you choose to enter their land.

There are two caveats. Modern discrimination law will prevent a blanket mask wearing policy. Just like the government, any business doing this will have to exempt those who medically cannot wear a mask and follow the same rules the government did.

For lawyers like me, more interest will lie in the role of the law of contract. That is the power by which the landowner tries to make you wear a mask. The contract you both agree to in order to enter the land.

The law of contract is strict and generally favours you the consumer, not the landowner. The best example of which is quiet carriages on trains. Whether you like or dislike them is politics. But legally they are probably a nonsense. 

That is because very few train companies I can see incorporates them into the contract (often also called ‘terms and conditions’) before you buy a ticket. As consumers, the law protects you from these ‘hidden’ promises. If they don’t let you know in advance that quiet coaches exist, you aren’t bound by them.  

Not of course that any of that legal truth helps you if you are on a train and someone is angry. But my only focus is the law. After 19 July, the government could lift compulsory mask wearing. If landowners bring it back, comply or go elsewhere. If any pre-booked event tries, that is when it gets interesting. To me, at least.