COVID-19 EXPERT LEGAL INSIGHTS

The legal basis for lockdown

26 March 2020

Last week saw the first steps towards a national lockdown when on the night of Friday 20 March the Prime Minister “told” certain businesses to close. What powers does the government have to do this? The answer is to be found here in the Public Health (Control of Disease) Act 1984, which contains broad but not unlimited powers to make regulations to protect health. One set of powers concerns international travel and the second set concerns the domestic incidence or spread of infection or contamination. The powers in respect of domestic cases include the power to impose restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health. They specifically include the power to close premises.

 

These domestic powers were relied on when, at 2pm on Saturday 21 March, Matt Hancock, the Secretary of State for Health and Social Care, invoked emergency procedures to sign into law The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020. The Regulations set out two categories of businesses: one which must cease trading and a second which must close any premises in which food and drink are sold for consumption on the premises and, for the avoidance of any doubt, must also cease selling food or drink for consumption on the premises. Whichever part of the regulations the affected businesses fall into, they are all part of the leisure industry. In both cases the requirement to cease trading took immediate effect.

The immediate, forced closure of lawful, solvent and tax-paying businesses is a very significant step for any government to take, and the Regulations make clear on their face that they were only made in response to the imminent threat to public health which is posed by the incidence and spread of coronavirus in England. The Regulations also provide that the Secretary of State must review the need for the restrictions every 28 days. Equivalent Regulations were made in Wales, and will be made in Scotland and Northern Ireland now the Coronavirus Bill has passed into law on 26 March as the Coronavirus Act

The Regulations are underpinned by criminal sanctions. It is a crime for any person, without reasonable excuse, to contravene the Regulations or to obstruct a person carrying out a function under them. In both cases, those crimes are punishable by an unlimited fine. Where the offence is committed by a company, either through the neglect of or with the connivance or consent of one of its officers, such as a director, secretary or manager, that person also commits the crime.

The Regulations are to be enforced by local authority trading standards and environmental health officers with the support of the police. It seems that, in the first instance, the authorities will rely on prohibition notices to enforce compliance but it is important to note that there is no requirement in law for them to do so and that both local authorities and the police are authorised to prosecute breaches of the Regulation. 

Over the same weekend that the government made these Regulations, it also issued guidance to a wider range of businesses “asking” them immediately to cease trading and indicating that it would review the situation again within three weeks. Since then the Coronavirus Bill has passed into law – the Coronavirus Act – and provides the government with additional powers concerning events, gatherings and premises.

These powers, conferred on the Secretary of State, will only take effect if he or she has declared publicly that they are of the view that the incidence of coronavirus constitutes a serious and imminent threat to public health in England (there is equivalent provisions for the other parts of the United Kingdom) and the exercise of the powers conferred will be an effective means of: preventing, protecting against, delaying or otherwise controlling the incidence of or transmission of coronavirus; or facilitating the most appropriate deployment of medical or emergency personnel and resources in England. The powers only last as long as they are needed: as soon as the Secretary of State concludes that the conditions for the exercise of powers are no longer met he or she must revoke their declaration.

In so far as events or gatherings are concerned, the Secretary of State will be able to issue a direction imposing prohibitions, requirements or restrictions on the owner or occupier of premises, or the organiser of the event or gathering and any other person concerned in holding it. He may not include in that direction a person whose only involvement would be in attending the event or gathering. The Secretary of State will also be empowered to issue a direction requiring premises to close or restricting entry to premises. In all cases, he or she may not make a direction without first having had regard to any relevant advice from the Chief Medical Officer or the Deputy Chief Medical Officer.

A failure by a person, without reasonable excuse, to comply with a prohibition, requirement or restriction imposed them by a direction will be a crime punishable by an unlimited fine. Where a company fails without reasonable excuse to comply with a direction to which it is subject, both it and any director, secretary or manager who consented to or connived in that failure, or whose neglect caused it, will commit the offence. 

Directions will be enforced by people designated in writing by the Secretary of State. It seems likely that both local authority officers and the police will be designated both to enforce compliance with a direction and to prosecute for a failure to comply. As the number of coronavirus cases rise exponentially, it may not be long before we see these powers used to reinforce the lockdown.

Note: this blog was written prior to the publication and entry into force of the Health Protection (Coronavirus, Restrictions)(England) Regulations 2020 on 26 March 2020 which revoked Health Protection (Coronavirus, Business Closure) (England) Regulations.

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

 

About the author

Alun is a partner in the criminal litigation team and specialises in serious or complex financial crime, proceeds of crime litigation and corporate investigations. He has particular knowledge and experience of issues surrounding corporate crime and deferred prosecution agreements.

 

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