The latest English COVID-19 emergency regulations – new powers for local authorities

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The Health Protection (Coronavirus, Restrictions) (No.3) (England) Regulations 2020 came into force on 18 July 2020. They give new powers to local authorities in England to respond to a public health threat caused by the incidence or spread of COVID-19.

The new regulations are additional to the Health Protection (Coronavirus, Restrictions) (No.2) (England) Regulations 2020 (the Restrictions Regulations), which remain in force at the time of writing. These, as amended, provide the basis for the lockdown as it still exists in England.

In general terms, the new regulations give local authorities in England the power to do three things.

Closing, or imposing restrictions on, specified premises (Regulation 4(1))

A local authority cannot give this direction in relation to premises or vessels listed in Regulation 4(3), which include “premises which include part of essential infrastructure” and “premises consisting of vehicles, trains, vessels or aircraft used for public transport or the carriage or haulage of goods.”

Before making this direction, a local authority “must have regard to the need to ensure that members of the public have access to essential public services and goods” (Regulation 4(4)).

Directions made under this regulation can impose restrictions on the number of people in the premises or the purposes for which a person is in the premises (Regulation 4(6)). Reasonable steps must be taken to give advance notice to the person carrying on business from those premises (Regulation 4(8)).

Prohibiting or restricting the holding of events in its area (Regulation 5(1))

Events include specified events (e.g. a specific concert) or events of a specified description (e.g. all concerts) (Regulation 5(2)). This form of direction can impose restrictions or requirements on both the owner or occupier of the premises for an event to which the direction relates and the organiser of the event itself (Regulation 5(3)).

As with premises, the local authority must take reasonable steps to give advance notice to the organiser of the event and, if different, the person who owns or occupies the premises for the event (Regulation 5(8)).

Prohibiting or restricting access to public outdoor places (Regulation 6(1))

Similarly to Regulation 5(1), this power can be used to prohibit or restrict access to one place or a category of places. The local authority must clearly define the place or places (Regulation 6(3)) and take reasonable steps to give notice to anyone carrying on business from premises within that place or places (Regulation 6(4)(a)) and to those who own, occupy or are responsible for premises in that place or places (Regulation 6(4)(b)).

Regulation 7(3) creates an offence of entering a public outdoor place that has been the subject of a direction under regulation 6(1) without “reasonable excuse.” Reasonable excuse is defined in Regulation 7(4) in a similar way to definitions of the same phrase in previous Restrictions Regulations. “Reasonable excuse” includes entering the public outdoor place or places for work purposes or to gain access to premises or your home if it’s located on the place or places.

Conditions on the use of powers

The powers described above are subject to the conditions in Regulation 2, including the following:

  • Local authorities cannot make a direction under Regulations 4 to 6 unless it is a necessary and proportionate response to a “serious and imminent threat to public health” (Regulation 2(1)).
  • The restrictions must be reviewed every seven days and terminated if they no longer meet the necessary or proportionate requirements.
  • The local authority must have regard to “any advice” given by its director of public health.

Regulations 4 to 6 also provide for a right of appeal to a magistrates court against a direction by a local authority.

Powers for the secretary of state

Regulation 3 gives the secretary of state the power to direct a local authority to use its powers under Regulations 4(1), 5(1) and 6(1) if the secretary considers that the conditions in regulations 2(1) are met: that it is a necessary and proportionate response to a serious and imminent threat to public health.

The secretary of state must consult the chief medical officer, or one of their deputies, before making this direction. This contrasts with the lesser requirement on local authorities to only “have regard to any advice given to it by its director of public health.”

Offence

Contravening a direction made by a local authority is an offence punishable by a fine, as is failure by an owner or occupier to take steps to prevent or restrict public access to their land in a public outdoor place or places subject to a local authority direction made under Regulation 6(1).

Seek legal advice if you’re concerned about, or think you may be affected by, the provisions summarised in this article.

Conclusion

We’re supporting businesses and public sector bodies affected by the new emergency measures enacted in response to the COVID-19 pandemic. Please get in touch with Paul Stone or Paul Hardy, or your usual DLA Piper contact, for more help and advice.