New regulations came in to force at 1 minute past midnight on Saturday morning tonight giving local authorities in England wide-ranging powers to close, restrict entry or secure other restrictions (capacities/operating hours for example) for all licensed (and other) premises and outdoor spaces.
Guidance has now been issued as to how these powers should be exercised. Whilst the powers given to the local authority are draconian, it seems clear from the guidance that these powers should not be exercised lightly given the evidential hoops that the authorities have to pass through before issuing a direction under the regulations
We have set out below details of the regulations and guidance in so far as they affect licensed premises:
A local authority can issue a direction where they consider there is:
- Serous or imminent threat to public health or
- It is necessary for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of coronavirus in the local authority area
A direction may be given to
(a) close the premises,
(b) restrict entry to the premises, or
(c) securing restrictions in relation to the location of persons in the premises.
References to outdoor spaces would include, for example, pub gardens.
The direction could, for example, limit the operating hours or capacity of a premise, or those parts of the premise where you wish to trade from
A local authority must take reasonable steps to give advance notice of the direction to both:
- a person carrying on a business from the premises to which the direction relates
- any person who owns or occupies the premises, if different from 1.
Any direction issued by a local authority under the Regulations will need to state the date and time on which the prohibition, requirement or restriction comes into effect and the date and time on which it will end. This should include the basis on which the three conditions are met and why a specific prohibition, requirement or restriction is necessary.
Where a direction is given there is a right of appeal (see below)
A breach of a direction issued by the local authority will result in the service of a fixed penalty notice, with a sliding scale from £100 to £3,200 depending on the number of penalty notices issued.
If the fixed penalty notices is paid within 28 days beginning from the day after the date of the notice no proceedings may be taken in respect of the offence
A local authority must review a direction it has issued under the Regulations at least every seven days
If at any stage the threshold for restrictions is no longer met (there is no longer a serious and imminent threat to public health, or the measures are not deemed to be necessary and proportionate to prevent or control the incidence or spread of infection in the local authority’s area), the direction should be immediately revoked or replaced with a direction which meets the threshold set out above
Before making a direction, local authorities will need to gather sufficient evidence to demonstrate that these tests have been met.
This evidence may come from a range of sources, including information provided to the local authority from local experts through, for example, the Local Resilience Forum, from NHS Test and Trace (including the Joint Biosecurity Centre (JBC)), from Public Health England (PHE) and from other sources
A local authority must consult with the director of public health, and assess whether the conditions for taking action have been met. It must have regard to any advice given to it prior to issuing a direction, or to revoke such a direction
The local authority should also consult the police prior to issuing a direction, and any neighbouring police forces if the direction prohibits, requires or restricts access to a premise, event or public outdoor place that is situated against a Local Resilience Forum boundary
Rights of Appeal
If you are given notice of a direction under these regulations, you have a right of appeal through the magistrates’ courts.
Should you wish to appeal a direction, the guidance states that this should be lodged as soon as possible and, where possible, submitted within the initial 7-day review period.
On an appeal you would need to be able to satisfy the court, on balance, that the decision made by the local authority was wrong – in that it did not satisfy the three conditions listed in the introduction section above – and bring forward any supplementary evidence to support the appeal
If any of your premises are served with a direction under the new regulations we would advise that you contact us as soon possible to ensure that any appeal is lodged as soon as possible and within the suggested 7 day review period.
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