We now have the Scottish Amendment Regulations, made at 11am yesterday and in force from today. They are here: http://www.legislation.gov.uk/ssi/2020/164/contents/made

They make a number of technical changes that are not relevant for day-to-day application. Of relevance though are the changes to Regulation 6 (restrictions on gatherings) and Schedule 1 (Businesses subject to restrictions or closure). Regulation 6 still bans gatherings of

more than two people in public. This has always been subject to an except "where all the persons in the gathering are members of the same household". This exception has now been modified to read "where all the persons in the gathering are members of no more than two households".

So the general principle remains that gatherings of more than two people in public amount to a criminal offence, but not where the gathering in question consists of people from two different households. If the gathering consists of people from three or more households, then it's

an offence. The law does not restrict the gathering of two or more households to a "small group" or to "a maximum of 8". These aspects remain guidance and not law. The Regulations also do not require the two households participating in the gathering to be at least 2m apart

That aspect constitutes government guidance only as well (of course, it's sensible to stay 2m away if you can to reduce the chance of spreading the virus). In respect of Schedule 1, there have been two changes. One is more significant than the other. The first is that the

requirement for sports courts to close has been amended to exclude courts used for tennis or bowls. Any other sports court (outdoor or indoor) must remain closed, as must outdoor gyms. It's a very limited exception to the closure requirement.

The other change to schedule 1 is less significant. Garden centres and plant nurseries have now been added to the list in Part 3 of Schedule 1. This list contains a list of businesses that were expressly permitted to remain open. However, as Garden centres or nurseries did not

fall within Parts 1 or 2 of Schedule 1 they were never actually required by law to close in the first place. As businesses that are able to carry on trading Regulation 4 requires them do a number of things though: (1) take all reasonable measures to ensure that a distance of two

metres is maintained between any persons on the premises (except between two members of the same household, or a carer and the person assisted by the carer), [note the changes to allow two households to mix do not extend to the requirements of Regulation 4]; (2) take all

reasonable measures to ensure that it only admits people to its premises in sufficiently small numbers to make it possible to maintain that distance; (3) take all reasonable measures to ensure that a distance of two metres is maintained between any person waiting to enter its

premises (except between two members of the same household, or a carer and the person assisted by the carer). Regulation 8(5) has also been amended. Regulation 8(5) provides the substantive defence of a "reasonable excuse" to a charge under Regulation 5 (of leaving the place

where you live). It's now a reasonable excuse to leave the place where you're living for the purpose of "recreation". That recreation may be alone, with members of your household or with members of no more than 2 households [i.e. you plus one other household]. There is no legal

restriction on the number of people you can have recreation with so long as the whole group consists of persons from no more than two households. Nor is there any legal limit on how far you may travel for your recreation. The 5 mile "rule" is only, for the time being, guidance.

The FM did say yesterday that if people were travelling excessive distances then a legal maximum distance may be inserted into the Regulations; so, it's best to be sensible. Regulation 8 has also been amended in relation to exercise. You may now legally take exercise with a

person or persons from one other household; no longer are you restricted to exercising alone or with persons from your own household. Again, there is no maximum distance within which you must take that exercise, but going excessive distances for exercise may only result in the

Regulations being changed to insert one. There is still no legal limit on the number of times per day you can engage in exercise; subject, of course, to each time you leave the place that you live for exercise that it's reasonable. Finally, while these changes are (in the grand

scheme of things) minor; they cannot be described as being required urgently. It's clear from the amendment Regulations that Scottish Ministers are relying upon para 6(2) of Schedule 19. I remain of the view that this is inappropriate and not in keeping with the spirit or letter

of the law. I therefore standby the criticisms I have made of the procedure adopted by the Scottish Minters for the making of these Amendment Regulations over the past couple of days. [Ends]