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Localised lockdowns are becoming the new normal – is your business prepared?

31 July 2020
The Health Protection (Coronavirus, Restrictions) (England) (No 3) Regulations 2020 (the "Regulations") came into force on 18 July 2020 and make provision for a local authority to give directions imposing prohibitions, requirements or restrictions in relation to premises, events and public outdoor places in its area.

Key points:

  • The Regulations grant local authorities the power to give directions imposing prohibitions, requirements or restrictions in relation to:
    • the entry into, departure from, or location of persons in, specified premises in the local authority's area (Regulation 4(1));
    • the holding of an event in its area (Regulation 5(1)); or
    • access to a specified public outdoor place in its area, or public outdoor places in its area of a specified description (Regulation 6(1)). 
  • A direction may only be given if the local authority considers that the following conditions are met: 
    • that giving such a direction responds to a serious and imminent threat to public health;
    • that the direction is necessary for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection by coronavirus in the local authority's area; and
    • that the prohibitions, requirements or restrictions imposed by the direction are a proportionate means of achieving that purpose (Regulation 2(1)).
  • Where a local authority gives a direction under regulation 4(1), 5(1) or 6(1) the local authority must notify the Secretary of State as soon as reasonably practicable after the decision is given (Regulation 2(2)(a)).
  • At least once every 7 days the local authority must review whether the conditions above continue to be met.  If on review the conditions are no longer met, the local authority must revoke the direction (with or without replacement) (Regulation 2(2)(b) and 2(3)).
  • In determining whether to give or revoke a direction, a local authority must have regard to any advice given to it by its director of public health (Regulation 2(4)).   
  • Regulation 3 gives the Secretary of State power to direct a local authority to give a direction under these Regulations, or to revoke (with or without replacement) a direction.  Before giving or revoking a direction, the Secretary of State must consult the Chief Medical Officer or one of the Deputy Chief Medical Officers of the Department of Health and Social Care.
  • Where a local authority gives or revokes a direction on a person specified by name, the direction or notice of revocation must be given in writing to that person.  In any other case, notice must be published on the website of the local authority.  The local authority may also publish notice of any direction or revocation in such a manner as the local authority considers appropriate to bring it to the attention of other persons who may be affected by it (Regulation 10).
  • A person on whom a direction under Regulation 4, 5 or 6 imposes a prohibition, requirement or restriction may appeal against the direction to a magistrates' court by way of a complaint for an order and the Magistrates' Courts Act 1980 applies to the proceedings.  That person may also make representatives to the Secretary of State about the direction (Regulations 4(9), 5(9) and 6(5)).
  • Regulation 12 states that a local authority designated officer or a constable may take such action as is necessary to enforce a direction under regulation 4(1), 5(1) or 6(1).  This may include, for example, issuing a prohibition notice, directing events to stop, directing people to leave an event or a place, or removing a person from an event or place (using reasonable force if necessary).
  • Regulation 13 states that breaches of particular Regulations (including 4(1) and 5(1)), obstructing a person carrying out a function under these Regulations, contravening a direction given under Regulation 12, and failing to comply with a reasonably instruction or prohibition notice are all offences.  An offence under these Regulations is punishable on summary conviction by a fine.
  • Regulation 14 states that a fixed penalty notice can be served on someone aged over 18 where it is reasonably believed that they have committed an offence under these Regulations.  The penalty is £50 if that amount is paid within 14 days of the notice, or otherwise £100.  

Key issues:

  • Different legislation in different areas: Separate pieces of legislation will be passed for each localised lockdown, meaning localised lockdown rules will differ depending on the area in question.  We have already seen that, although the legislation passed for the Leicester lockdown is largely similar to the legislation passed for Blackburn with Darwen and Luton, there are some differences.  For example, gatherings of more than 2 people indoors are banned in Leicester, whilst individuals in Blackburn are still allowed gatherings of up to 30 people indoors.  The differences in legislation may be confusing for individuals and businesses who are trying to prepare for localised lockdowns.
  • Enforcement: The Regulations allow for local authority representatives to issue prohibition notices, but the lack of an accompanying appeals mechanism in the legislation makes it difficult for businesses to challenge them.  Prohibition notices served on a business may, therefore, ultimately create an unchallengeable evidential flow which (perhaps unfairly) indicates that a business has failed to comply with COVID-19 legislation.
  • Fast paced: It is not always easy to predict when a localised lockdown will be enforced, so many businesses will need to adapt quickly and on short notice to ensure they are complying with the law.  Similarly, businesses who want to appeal a direction served pursuant to the Regulations will want to act quickly and without delay.
  • Be prepared: The continued spikes and 'second wave' threat mean that localised lockdowns will become more prevalent. Businesses need to prepare for this eventuality so that they can respond effectively and manage their business through the lockdown. Policies, risk assessments and safe working procedures will need to be reviewed.

By applying DWF's expertise in this area, we can ensure that businesses have in place an effective risk management tool, mitigating the risks presented by the Regulations, for example, the heightened risk of violence towards employees. We will also provide live updates on the Regulations and guidance for your business during these unprecedented times. For more information please get in touch with one of the contacts below.

Further Reading