Published: 17 July 2020 by Jonathan Smith
“The Government has today made Regulations which allow a Local Authority to make a “Direction” in relation to specific premises, events or public spaces. A Local Authority, after having regard to any advice given by its Director of Public Health, can only make the “Direction” if it considers that the “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 incidents or spread of infection by Coronavirus in the Local Authority‘s area”; and “the prohibitions, requirements or restrictions” which are imposed by the “Direction” are a proportionate means of achieving that purpose.
The “Direction” is in relation to the entry into or departure from, or location of persons in a premises, and can only be given for the purpose of closing the premises, restricting entry to the premises or securing restrictions in relation the location of persons in the premises.
The Secretary of State can also direct a Licensing Authority to make such a “Direction”, if the Secretary of State feels that the same requirements set out in the paragraph above are met. The Secretary of State must then direct a Local Authority to revoke or amend any such “Direction” where it considers the requirements above are no longer met.
The Regulations come into force at midnight tonight.
There are some premises which are exempt, but not licensed premises. The “Direction” may, amongst other things, impose restrictions on the number of people in the premises, the purpose for which people can be in the premises and what facilities may be carried on in any premises. This would appear to mean the “Direction” would prevent specific forms of entertainment from taking place.
The “Direction” must be kept under review and the Local Authority must consider whether or not the “Direction” is still necessary for the purpose of preventing, protecting against, controlling or providing a public health response in the Local Authority’s area every 7 days, and does the “Direction” still relate to a “serious” threat to public health and that the steps taken in the “Direction” are still a proportionate means of achieving the said purpose of preventing, protecting against, controlling or providing a public health response to the incidents or spread of infection in the Local Authority’s area.
There is also the power for a Local Authority to issue a “Direction” in relation to public outdoor places which would impact on businesses in such public spaces.
There is a right of appeal to the Magistrates’ Court.
The Local Authority must take reasonable steps to give advance notice to the person that carries on the business from the premises or who is running and organising an event, but there is no indication of what ”reasonable steps” nor “advance notice” constitutes in the Regulations.
Any “Direction” given by a Local Authority must be given to the person running the business or event (the owner, proprietor or manager), in writing, and published it in a manner which the Local Authority considers appropriate to bring it to the attention of other people.
Either the Local Authority or Police can enforce a “Direction”. The Local Authority can issue a prohibition notice should it believe that somebody is breaching the “Direction”, and in the case of an event, the Police can direct an event be stopped, a person leave the event or remove a person from such event.
What these Regulations appear to do is provide the Local Authority with the power to close down individual premises, where they feel that social distancing guidance is not being followed, or stop events for the same reason. Public spaces can also be closed by Local Authorities.
These appear to be far ranging powers if the closure of a single premises (or group of premises), limiting their capacity or preventing forms of entertainment is “necessary for the purpose of preventing, protecting against, controlling or providing a public health response to the incidents or spread of infection by Coronavirus in the Local Authority’s area” which, on the face, a Local Authority will be able to argue is the case where social distancing guidelines are not being followed.
The closure has to be kept under review every 7 days. The Local Authority can revoke or amend the “Direction”, so the right of appeal to the Magistrates’ Court is probably redundant, because the “Direction” will probably have been lifted or amended by the time it comes to the Magistrates’ Court.”
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