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Do local authorities have the power to impose a full scale local 'lockdown'? UPDATED

Christopher Bevan examines the powers available to local authorities particularly under Regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 in providing a local public health response to the incidence and spread of coronavirus.

This article provides an interpretation on a point of law and posits that that the powers under Regulation 6 [see footnote 1] can reach to the extent of imposing what is tantamount to a local ‘lockdown’ and does not necessarily reflect the views of any given local authority.

This article specifically considers a mute scenario if a local authority were to seek to impose its own full scale local lockdown and if local authorities can legally impose local restrictions which effectively equate to a full scale local lockdown, like that of the national lockdown which was observed from March to early July where individuals could only leave their home with reasonable excuse and for specified purposes, such as shopping, hospital appointments and to go to work, etc.

There has been much talk in the press about how far local authority powers would stretch. Of particular question has been if local authorities can impose their own local lockdowns and what that actually means, following the Prime Minister's announcement that local authorities will be able to impose their own lockdowns [2]. Some local authorities appear to have initially expressed concern that the legislative framework did not confer powers locally allowing them to require people to remain in their homes [3]. There is still to this day evidence to suggest that some local authorities are at odds with the current national approach [4]. Even though the Local Government Association has noted that ‘greater powers for councils to take swift and effective action to address local outbreaks would hopefully help avoid more stringent measures been imposed locally’ [5], there is an arguable interpretation of Regulation 6 that could practically mean local authorities can exercise powers which will cause people not to leave their homes, unless for a reasonable excuse, should they choose to do so.

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There are a number of measures available to local authorities to provide a local public health response, including use of antisocial behaviour, health and safety and licencing legislation. But what precisely does Regulation 6 allow for? Principally, in a context where it appears some local authorities are at odds with the national approach, does Regulation 6 pave a way for local authorities to provide their own local response in any event?

The law

Available Powers

Subject to Regulation 2 (the conditions which must be met to use powers under Regulation 6), Regulation 6 allows a local authority to impose (1) prohibitions, (2) requirements or (3) restrictions in relation to access to (1) a specified public outdoor place in its area, or (2) public outdoor places in its area of a specified description.

Conditions to Meet to Impose Such Powers

The conditions which the local authority must meet in order to activate Regulation 6 are dealt with in Regulation 2. The conditions which must be met are:

  1. that giving such a direction (on a public place) responds to a serious and imminent threat to public health,
  2. 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
  3. that the prohibitions, requirements or restrictions imposed by the direction are a proportionate means of achieving that purpose.

In accordance with Regulation 7(1), the local authority must also take reasonable steps to prevent or restrict public access to the public outdoor place or places to which a direction under Regulation 6 relates.

Official Notification of Use of Powers

Where the local authority gives such a direction, it must (1) notify the Secretary of State for Health as soon as is reasonably practicable after giving the direction and (2) review the direction every 7 days to consider if the conditions under Regulation 2 above are still met. At this stage the local authority can keep it in place as it was or revoke or modify.

Local authorities must also notify adjacent local authorities and encompassing authorities of the directions they impose.

Additionally, the local authority must (1) publish the directions on its website and (2) may publish the restrictions in any other manner it considers appropriate to bring to the attention of those affected.

Appeals

Any person who owns, occupies or is responsible for land or premises in a public outdoor place to which a direction under Regulation 6 is given, may appeal that direction to a magistrate’s court or make representations to the Secretary of State.

Enforcement, Offences and Penalty Notices

In relation to Regulation 6, only a police officer or police community support officer may direct a person to comply with the directions the local authority imposes under Regulation 6. The police officer may also remove a person from a public place. It is a criminal offence to fail to comply and as such a police officer may also arrest any person failing to comply with said directions.

Any person who without reasonable excuse fails to comply with directions under Regulation 6 commits an offence which can be dealt with by the magistrate’s court by way of a fine. In addition, where repeat offenders are identified, the prosecutor can ask the court to impose a Criminal Behaviour Order (CBO) upon conviction. The CBO may require the offender not to do anything which the directions under Regulation 6 prohibit. Failure to comply with a CBO is an imprisionable offence.

In addition, the local authority officer or the police may issue a penalty notice where they believe they have identified an individual committing an offence. Failure to pay this penalty notice will mean the individual can be brought before the magistrate’s court and convicted for the offence and ordered to pay a fine and be made subject to a CBO.

Prosecutions can be brought by the police or the local authority.

Citizen Compliance with Directions Imposed Under Regulation 6

Regulation 7(2), (3) and (4) deal with the scenarios in which people may not comply with said directions given under Regulation 6.

A person commits an offence if they contravene the directions given under Regulation 6 and have no reasonable excuse for doing so. A reasonable excuse is defined as, but not limited to:

  1. a person owns, occupies or is responsible for any land or premises to which the direction applies,
  2. the person needs to enter the public outdoor place to enter or leave the place in which they are living,
  3. the person is visiting another person of the description to which paragraphs (a) and (b) apply,
  4. the person needs to enter or remain in a public place to which the direction relations in order to (1) avoid injury or illness or to escape risk of harm (2) to continue existing arrangements parents have in place in relation to contact with their children and (3) to fulfil a legal obligation or participate in legal proceedings.
  5. it is reasonably necessary for the person to do so for work purposes or the provision of charitable services,
  6. to facilitate a house move,
  7. to provide care to a vulnerable person.

Directions on Public Places which form part of Crown Land

Regulation 8 states that the local authority may not impose restrictions under Regulation 6 on land which is owned by the Crown, without first seeking prior approval from the relevant authority.

Interpretation

Much focus by local authorities has pertained to large gatherings and restrictions on particular premises, however provided the other conditions as outlined above are met, it is arguable that Regulation 6 allows the local authority to exercise far wider powers on the general public. This may include restrictions on access to small or large pedestrian areas in city centres or particular town centres. It allows effective closure of parks, restrictions on use of local authority highways and pedestrian walkways that are not owned by the Crown (unless prior approval is sought where owned by the Crown).

In relation to imposing a full-scale local lockdown of the kind overserved in the national measures between March and early July, local authorities do not at this time hold the power to instruct citizens that they must not leave their homes unless for good reason, but this article posits it can exercise powers which in practical terms go some way towards that in applying restrictions on public places which are tantamount to a full-scale local lockdown.

Regulation 6(1)(b) allows restrictions to be imposed on “public outdoor places in its area of a specified description”. The local authority therefore has the power to specify that description or ‘class’ of place. There is no further guidance or case law as to what this means and as such, Regulation 6(1)(b) could be applied to a class of public places, such as pedestrian walkways and highways. This could mean that no citizen would be able to walk/cycle on a pedestrian walkway or drive/cycle on a public highway unless they had a reasonable excuse.

Regulation 6(1) allows the local authorities to impose “prohibitions, requirements or restrictions”. A restriction could therefore cause a local authority to allow citizens to only use the pedestrian walkways or highways if for a specified purpose, such as shopping for essential items (in addition to the other reasonable excuses defined by Regulation 7).

It must be noted that Regulation 7 would prohibit the local authority from restricting access to a pedestrian walkway or highway outside of someone’s home as one of the reasonable excuses is defined in the Regulations as allowing the individual to enter the public place for the purposes of leaving their property or gaining access to it. It would not therefore be possible to instruct citizens that they may not access any and all pedestrian walkways in a local authority, as this would mean they cannot access or leave the place where they are living. A local authority would therefore have to specify which pedestrian walkways are restricted.

However, it would be possible to say that no citizen may enter a highway (which is local authority owned), as this would not arguably prohibit them from leaving the place where they are living in the way that a restriction to the pedestrian walkway adjacent to their home would.

In addition, this would not stop a local authority from imposing pedestrian and highways restrictions in areas of the authority which attract citizens to leave their homes in the first place. For example, it is arguable that closing city and town centre pedestrian walkways and all highways (except for those exercising a reasonable excuse or those purchasing essential shopping etc.) would mean that citizens are less likely to leave their home and potentially negatively affect the incidence of coronavirus as they would likely have no reason to leave their home (but for work and essential purposes and those with a reasonable excuse).

This would practically restrict citizens from visiting parks, shopping plazas and other locations for the purposes of solely pleasure where large numbers of people gather and where there is a greater risk of transmission, unless they had a good reason to do so. 

In essence, the restrictions imposed under Regulation 6 could be wide reaching to the extent that citizens will have no reason to leave their home, but for exceptional circumstances detailed in Regulation 7 (reasonable excuses) and any further reasonable excuses the local authority may allow for through imposing restrictions.  

Imposing this level of restriction does not require the local authority to legally seek national approval and this decision can be made at a local level, provided the local authority can evidence the reasons and satisfy the test in accordance with Regulation 2, notifies the Secretary of State as soon as is reasonably practicable after imposition, publishes the restrictions to its citizens and informs the adjacent local authorities.

Conclusions

Regulation 4 and 5 deal with directions in relation to specific premises and specific events, however this article suggests that Regulation 6 is far more wide reaching than just closing parks. Whilst it does not allow the local authority to instruct its citizens that they may not leave their homes but for a reasonable excuse, like seen with the national lockdown, it does allow for the local authority to impose particular class’ of directions which may practically mean that citizens will not leave their homes unless for a good reason. To impose such directions, the local authority must be able to satisfy itself of the test in Regulation 2 and prove that it has met this test if challenged later either by appeal or judicial review. The appeals framework would mean that the vast majority of people will not have recourse to appeal the directions given under Regulation 6. These directions must be published on the local authority website and through whatever other means a local authority considers appropriate and the Secretary of State and neighbouring authorities must be informed. These directions can be enforced by the police and by the local authority through arrest, issuing of penalty notices and criminal prosecutions in the magistrate’s court.

To this point when a local lockdown has been imposed, such as in Leicester and the North of England, it has been done through the creation of new secondary legislation under the Public Health Act which confers powers to the national executive to impose such lockdowns locally. Those with a keen eye on the news will see that some local authorities appear to have been at odds with the national approach and have wanted to continue local lockdowns when the government have wanted to lift them. Whilst there is no evidence to suggest that any local authority is considering using Regulation 6 in the ways discussed here, this article posits that there is legal framework within Regulation 6 conferring powers to allow the local authority to impose its own local lockdown on its own initiative.

Christopher Bevan is a legal officer in a local authority. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

[1] Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020

[2] Yorke, H., Sheridan, D. 2020. Boris Johnson gives local authorities powers to impose ‘lightning’ coronavirus lockdowns. The Telegraph. [Online]. 17 July. [Accessed 28 July 2020]. Available

[3] Wall, T. 2020. Lockdowns not possible without more powers and money, warn local councils. The Guardian. [Online]. 7 June. [Accessed 28 July 2020]. Available.

[4] Adedokun. N. 2020. Manchester lockdown: Labour Mayor Andy Burnham urges residents to ignore PM’s orders. Express. [Online]. 2 September. [Accessed 2 September 2020]. Available.

[5] Local Government Association. 2020. LGA responds to Contain Framework on counils’ local lockdown powers, LGA. [Accessed 28 July 2020].

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