As has been widely debated, the Government’s current pandemic dilemma revolves around the desire to ease restrictions on lockdown and so mitigate the impact on the economy, whilst at the same time addressing local outbreaks of the virus, such as the one in Leicester.
In legislative terms, the principal Regulations (for England) that stipulate what public health measures can be taken to reduce the public health risk from the coronavirus are the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020; and with the various relaxations these Regs have been amended a number of times.
To counter the concern about local outbreaks, on the 17 July 2020 the Government announced the coming into force of the Health Protection (Coronavirus, Restrictions) (England)(No.3) Regulations 2020 which outline the powers open to local authorities to impose local lockdowns.
Both sets of Regulations have been made under the urgency provisions in the Public Health (Control of Disease) Act 1984 and so do not require the approval of Parliament. In the recent High Court case of Dolan & Others v Secretary of States for Health & Social Care, and Education  EWHC 1786 (Admin), the Court disposed of an argument that the 1984 Act was ill-suited to impose such stringent measures, including the closing of businesses and schools, on the whole of the population of England – see paragraphs 34 – 46 of the Judgment.
Of note is the fact that an alternative power lies within the Coronavirus Act 2020 (section 51, and parts 2 - 5 of Schedule 21) which gives very wide powers to public health officers to deal with those who might be ‘potentially infected’ and who might infect others (including a power to detain, remove from places, screen, isolate etc). These powers are triggered if the Secretary of State considers there is a ‘serious and imminent threat to public health in England’ and makes an appropriate declaration.
As well as the wide scope of the local lockdown powers, perhaps the most controversial aspect of the Regulations is the absence of any requirement for a local authority to obtain Court approval before taking action to impose measures on its local population. As noted below there are a number of requirements on a local authority before taking action and the accompanying Guidance for local decision-makers states that: Wherever possible, actions to address outbreaks of COVID-19 will be undertaken in partnership with local communities, on the basis of informed engagement and consent.
The scope of local authority powers
In summary, the Regulations grant powers to local authorities to issue a direction to:
- restrict access to, or close, individual premises
- prohibit certain events (or types of event) from taking place
- restrict access to, or close, public outdoor places (or types of outdoor public places)
Such a direction, however, must be
- a response to a serious and imminent threat to public health in the local authority’s area;
- necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in the local authority’s area; and be
- a proportionate means of achieving that purpose
As well as stipulating the content of any Direction, the Regulations state that, before any Direction is issued, the local authority must fulfil its Public Sector Equality Duty and consider the impact of any direction on those with a protected characteristic. Furthermore, the local authority must consult with the Director of Public Health and must take reasonable steps to give advance notice to any owner of premises, or organiser of an event.
The Regulations outline that some premises are exempt, including premises relating to essential infrastructure (undefined); and premises relating to the provision of essential public services should not be disrupted. For restrictions on events and outdoor places, other requirements include:
- gathering relevant evidence such as the area in question, details of the disease prevalence and transmission rates, and evidence relating to the risk
- consulting neighbouring authorities where relevant and about proposals to exercise the power
- engaging with partners through the Local Resilience Forum
Once issued any such Directions must be reviewed every 7 days in order to ensure that the conditions are still met, and if they are not, the Direction must be revoked.
Having issued a Direction, there are subsequent obligations to notify the Secretary of State, neighbouring authorities, and the Police, and to publish any Directions that are issued.
Whilst the local authority can exercise these powers, the Secretary of State can also direct that the local authority issues a Direction relating to any premises, or for any event or outdoor spaces. The Minister can also revoke a Direction issued by a local authority.
For Directions relating to outdoor places, there is a defence open to someone who has a reasonable excuse or can prove that their presence in an outdoor space is necessary. Powers are given to Police officers and local authority designated officers to ‘take such action as is necessary and proportionate to enforce a direction’. This can include issuing prohibition notices to prevent access to premises or directing people to leave or removing people from an event. If it is considered that an offence has been committed, then fixed penalty notices can be issued, starting from £100 and rising to a maximum of £3,200.
Any Direction can be appealed to the Magistrates Court on the basis that the Direction was wrongly issued, together with evidence as to why the conditions required are not met. Appellants should lodge their appeal within 7 days.
Local Authority decision-making
Whilst it is expected that local authorities will manage local outbreaks, there will be cases where further support will be required and the link with central Government will be the NHS Test and Trace Support and Assurance Teams who will provide guidance on escalation. Notwithstanding local government concerns about having adequate information, the Guidance states that data about infections from the Joint Biosecurity Centre will be available to local authorities.
Depending on the progress of any outbreak, the expectation is that local authorities will, at any given time, be designated into areas of concern, enhanced support, or areas of intervention with a greater or lesser degree of autonomy for local authorities to manage outbreaks in their own areas.
The Guidance envisages that local authority officers (rather than local Councillors) will take decisions to issue directions given the speed that Directions may need to be made. As with other officer-only decisions, the Regulations prescribe that a written record of any decision must be published which outlines the date the decision was made and the reasons for it.
The new Regulations supplement existing local authority powers which could also be used to contain local outbreaks. These include:
- The Health Protection (Part 2A Orders) Regulations 2010 which relate to the local authority powers to apply to a Magistrate to get an order to examine, detain etc those who might be infectious. What is not clear is how the Courts would deal with those who are asymptomatic. It is not known whether a local authority could obtain a Part 2A order where someone is suspected to be infected or may have been exposed to the infection. Magistrates will likely want concrete evidence of a diagnosis - which in many cases will not be possible.
- The Health Protection (Local Authority Powers) Regulations 2010 give the local authority the power to serve a notice on someone asking them to cooperate and do or refrain from doing something that would restrict any outbreak. There is no sanction to non-compliance with any notice. The Regulations do say that we can offer compensation to facilitate cooperation i.e., more of a carrot, than a stick. Furthermore, these Regulations give the local authority a power to restrict a child coming to a school if they were infected – and impose a penalty if a parent ignores such a restriction.
- There are also powers under Food Safety Act 1990 and Food Safety and Hygiene (England) Regulations 2013 to close a food business if there is an imminent risk to health
- The new Coronavirus Act 2020 (section 37, Schedule 16) does enable the Secretary of State to give authorisation to local authorities to temporarily close Schools.
In the past, local authorities have been criticised for being too vigorous in the use of powers that directly impact on their local populations. The Government’s expectation is that these new powers will be used with discretion. It remains to be seen how numerous and successful the legal challenges to the imposition of lockdown measures become, and, conversely, how effective the lockdown measures are in stopping the spread of the virus.
Nick Graham is the Director of Legal & Democratic Services at Buckinghamshire Council.