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31 July 2020

Local lockdowns – Points to consider for local authorities

While the national lockdown has eased considerably over the last few months, there are worrying reports across the UK and Europe of new COVID-19 cases. With this in mind, there are clear themes emerging about how the UK government will respond to any second peak. First, the approach seems to be location-specific, meaning that any lockdown will be targeted to a specific area where there is a local outbreak. Leicester was the first example of this, and with reported outbreaks in Oldham and elsewhere, we can expect a concerted response. Second, any local lockdown is likely to be at short notice and rapidly introduced. The UK government has given holiday makers in Spain four days’ notice that they will have to quarantine on arrival in the UK, so expect a similar time frame.

Regulations – new powers for local authorities

The Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020 were driven by central government and provided, at the time, a unique template for dealing with a local outbreak. However, on the 18 July the UK government introduced The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 (the local lockdown regulations) which afford local authorities in England three new powers:

Regulation 4: Directions to individual premises

Local authorities may give a direction imposing prohibitions, requirements or restrictions in relation to the entry into, departure from, or location of persons in specified premises. These powers do not extend to:

  • any premises which form part of essential infrastructure;
  • any premises consisting of vehicles, trains, vessels or aircraft used for public transport or the carriage or haulage of good; or
  • a vessel not falling within paragraph (ii), but where the direction would have the effect of preventing a change-over of crew.

Importantly, a local authority must have regard to the need to ensure that members of the public have access to essential services and goods. Moreover, the direction can only apply to certain persons (owner and occupier of the premises, and any person managing entry and departure) and it must follow certain notice requirements.

Regulation 5: Directions relating to events

Local authorities may give a direction imposing prohibitions, requirements or restrictions in relation to the holding of an event under its jurisdiction, which includes a specified event or events of a specified description. The direction may impose requirements about informing persons who may be planning to attend an event of any prohibitions, requirements or restrictions imposed. Similar to regulation 4, the direction can only apply to a certain person (the owner of premises, the organiser of the event, or others involved (though this does not include attendees), and it must follow certain notice requirements.

Regulation 6: Directions relating to public outdoor places

Local authorities may give a direction imposing prohibitions, requirements or restrictions in relation to access to i) a specified public outdoor place, or ii) public outdoor spaces of a specified description. The direction must:

  • specify or describe the area in sufficient detail;
  • state the date and time any restriction with start and end; and
  • give details of the right to appeal to a magistrates court.

In addition to this information, the direction must follow certain notice requirements. Regulation 7 supplements this by creating an offence of entering a designated public outdoor space without reasonable excuse.

These new powers are subject to three overarching conditions, as detailed in Regulation 2. Local authorities must consider that the direction:

  • responds to a serious and imminent threat to public health;
  • is necessary to prevent protect against, control or provide a public health response to the incidence or spread of infection by COVID-19 in the local authority’s jurisdiction; and
  • is a proportionate means of achieving that purpose.

If a direction is made, local authorities must notify the Secretary of State as soon as practicable after the direction is given and review whether the above three conditions remain satisfied at least once every seven days.

The Secretary of State has powers under Regulation 3 to direct a local authority to use its powers if they consider the above three conditions are met.

Practical Tips

BDB Pitmans has specialist public law and government affairs advisers to help guide you through these extraordinary times. At this stage, local authorities much consider:

  • whether you are acting lawfully within the scope of the local lockdown regulations. This includes drafting the directions and notices within the ambit of the rules and ensuring that you go through the correct decision making procedures;
  • collating the necessary information to inform the substance of any local lockdown. You can get ahead of the curve by understanding key premises and postcodes;
  • the relationship with central government, who may follow up any local authority direction with a Leicester-esque statutory instrument or a direction under Regulation 8. Moreover, the local lockdown regulations provide for criminal offences, so it is important to keep an open dialogue with the relevant police force;
  • if your area is unfortunately subject to an outbreak and you require emergency PPE or other goods / services, there is policy guidance on emergency procurement during the pandemic;
  • the role of data protection laws when sharing information as part of a coordinated response to a local outbreak; and
  • that there are permitted development rights that run until 31 December 2020 that allows for emergency development on land it owns, leases or occupies for (i) preventing an emergency; (ii) reducing, controlling or mitigating the effects of an emergency; or (iii) taking other action in connection with an emergency. These rights allow, for example, for the temporary provision of hospital beds and medical training in council buildings.

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