Councils in England have been given powers to introduce local lockdown measures to tackle local outbreaks of the coronavirus.

The Health Protection (Coronavirus, Restrictions) (England) (No 3) Regulations 2020 came into force on 18 July 2020 and will expire at the end of 17 January 2021.  They give local authorities power to give directions which impose prohibitions, requirements or restrictions relating to premises, events and public outdoor spaces.

A local authority may only give a direction under the regulations if it considers that:

• Giving the direction responds to a serious and imminent threat to public health;
• The direction is necessary for the purposes 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
• The prohibitions, requirements or restrictions imposed by the direction are a proportionate means of achieving the purposes.

When deciding whether to make a direction, a local authority must have regard to any advice given to it by its director of public health.

A local authority which gives a direction must notify the secretary of state as soon as reasonably practicable and must review at least once every seven days whether the conditions for the making of the direction are still met.

The secretary of state has power to direct a local authority to give a direction under the regulations if the secretary of state considers that the conditions for making a direction are met. Before doing that, the secretary of state must consult the chief medical officer or one of the deputy chief medical officers of the Department of Health and Social Care. County councils have power to direct district councils in their area to exercise functions in a specified way if they consider that this is necessary and proportionate in order to prevent, protect against, delay or otherwise control the incidence or spread of infection of the virus in the district council's area.

Directions relating to premises may require closure of premises, restriction of entry or restrictions relating to the location of persons in the premises.A local authority may not make a direction relating to premises which form part of essential infrastructure; premises which consist of vehicles, trains, vessels or aircraft used for public transport or carriage or haulage of goods, or a vessel where the direction would be likely to prevent a change-over of crew.A local authority must have regard to the need to ensure that members of the public have access to essential public services and goods.

Directions may be given in relation to specified events or events of a specified description.Events may be described by reference to the number of people attending, a requirement for medical or emergency services to attend or in any other way.

Directions may be given to a specific public outdoor place or public outdoor places of a specified description and may prohibit access at specified times.The agreement of the appropriate authority is required before a local authority gives a direction relating to a public outdoor place which forms part of Crown land and includes property to which section 73 of the Public Health (Control of Disease) Act 1984 applies.The appropriate authority will be the Crown Estate Commissioners, the Chancellor of the Duchy of Lancaster, a person appointed by the Duke of Cornwall, or a government department depending on who owns the land.

If a local authority gives a direction which imposes a prohibition, requirement or restriction on a person specified by name, the local authority must give notice in writing to that person and also publish the notice as the local authority considers appropriate to bring it to the attention of persons who may be affected by it.Other directions must be published on the local authority's website and may be published in such other manner as the local authority considers appropriate to bring them to the attention of persons who may be affected by them.

Local authorities also have obligations to notify other local authorities of their directions, namely:

• Local authorities for adjacent areas.
• London borough councils must notify all other London borough councils.
• County councils must notify district councils in their areas.
• Local authorities whose area is adjacent to the area of a council in Scotland or a county or county borough council in Wales must notify those councils.

Persons who are given a direction under the regulations have a right of appeal against the direction to a magistrate's court and also to make representations to the secretary of state.

Local authority designated officers and constables have enforcement powers.Persons who contravene directions under the regulations or obstruct persons carrying out functions under the regulations commit offences.

The new powers could be helpful to local authorities in their actions to protect their communities and mitigate the impact of the coronavirus.The chair of the Local Government Association commented that councils know their local communities best and know how to address each unique outbreak.In order to use these powers effectively, there will be some important general issues to address.These include:

• Ensuring that anything imposed by a direction is a proportionate means of achieving the purposes.  As well as being necessary under the regulations, this will be important in enabling a local authority to show that its decision is compliant with equality and human rights and is a reasonable exercise of the local authority's powers.  Even at the height of the pandemic in England, there were questions raised as to how decisions of local authorities affected the human rights of individuals.  If local authorities give directions which limit the activities of people in their area when the rest of the country is enjoying the easing of lockdown restrictions, they could be at risk of challenge if the limits imposed by the directions are considered to be disproportionate.
• Reviewing directions at least every seven days and taking action to revoke them if the conditions that led to making them are no longer met.
• Allocating sufficient resources to the exercise of their powers under the regulations.  Local authorities will need to identify the need to issue directions when appropriate, review any directions they make, and take action to monitor and enforce compliance.

The Health Protection (Coronavirus Restrictions) (England) (No 3) Regulations 2020 can be accessed here

Tiffany Cloynes is partner and head of public sector (England) and Clare Hardy is senior associate at Geldards LLP