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The Coronavirus Act 2020, which received royal assent on 25 March having passed all parliamentary stages in less than a week, confers potentially significant direction making powers on the Secretary of State (SoS) to suspend port operations in England and Wales. ‘Port’ includes an airport, sea port or international rail terminal.

The SoS may only do so if he / she considers that there is real and significant risk that, due to the incidence or transmission of COVID-19, there are, or will be insufficient border force resources available to maintain adequate border security. The SoS must first have taken all reasonably practicable measures to mitigate the risk.

A direction, which must be given to a person concerned in the management of arrivals at a port, must include the operator, the specific port operations which are to be suspended, the time at which the direction comes into effect and the duration of the suspension period alongside any incidental arrangements.

The SoS must notify the devolved administrations when a direction or notice is issued. The provisions are binding on the Crown.

The initial suspension period cannot be for longer than six hours but may be extended  for a further six hours. Thereafter, the suspension period may be extended for further periods of up to 12 hours on each occasion, subject to the same conditions.

The SoS may also issue a consequential written direction to other specified parties to make arrangements, or take steps, which are appropriate- for example, to make arrangements for another port or airport to accept diverted flights or sailings.

There is power to revoke a direction or notice eg in circumstances where the border security risk diminishes before expiry of the suspension period.

It is an offence to fail to comply with a direction without reasonable excuse.

These are arguably draconian powers, albeit for extraordinary circumstances, mitigated by the fact that they may only be exercised where the SoS has sought to find reasonable practicable alternatives and by the restrictions on the time periods for suspension.  However airport, port and rail terminal operators will need to consider  carefully the implications if passengers and traffic is diverted at short notice either away from, or to, their facilities as and when the provisions come into force.

For further advice please contact our infrastructure planning team.

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