Emergency Powers over Premises

Read more about: Coronavirus (COVID-19)

Powers to issue directions relating to events, gatherings and premises: Coronavirus Act 2020: Part 2 of Schedule 22

If the Secretary of State has issued a declaration under paragraph 3(1) that a “Public health response period” is to operate, then the Secretary of State can issue directions under paragraph 6 of Schedule 22.

A paragraph 6 direction may impose prohibitions, requirements or restrictions in relation to the entry into, departure from, or location of persons in, premises in England.

The purposes of a direction must be (a) preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus, or (b) facilitating the most appropriate deployment of medical or emergency personnel and resources.

A paragraph 6 direction may:

  • be issued in relation to (a) specified premises, or (b) premises of a specified description,
  • only have the effect of imposing prohibitions, requirements or restrictions on (a) the owner or occupier of premises to which the direction relates, or (b) any other person involved in managing entry into, or departure from, such premises or the location of persons in them,
  • among other things, impose requirements for the purpose of (a) closing the premises; (b) restricting entry into the premises; (c) securing restrictions in relation to the location of persons in the premises,
  • impose prohibitions, requirements or restrictions by reference to (among other things) (a) the number of persons in the premises; (b) the size of the premises; (c) the purpose for which a person is in the premises; (d) the facilities in the premises; (e) a period of time.

It is an offence to fail to comply with a paragraph 6 direction.

Summary: These provisions appear to be aimed at lowering the risk of the spread of infection by preventing or limiting access to certain premises or types of premises. As things stand, the guidance that the government has issued appears to be being followed universally in relation to shops and places of entertainment or leisure. The power could be used if that did not hold, or if the government wished to impose restrictions on a wider class of premises, such as offices.

Residential tenancies: protection from eviction: Coronavirus Act 2020: Schedule 29

Schedule 29 delays when landlords are able to evict tenants. It extends the notice period that a landlord is required to serve on a tenant to at least three months. In most cases a landlord must provide notice of intention to seek possession of an assured, assured shorthold, secure, demoted or introductory tenancy. The notice periods for these are extended to at least three months. The Secretary of State can extend this minimum period to up to 6 months.

The Schedule also creates a three months’ notice requirement where a requirement to give notice does not currently exist. The Rent Act 1977 does not require a notice to be served on statutory regulated tenants under the Act and so these provisions introduce a notice period for those tenancies and sets out that it must be at least three months (again extendable to up to 6 months).

A landlord can continue to serve a notice of intention to possess and the tenant’s liability to pay rent is unaffected.

The Schedule applies to tenancies governed by the Rent Act 1977 and the Housing Acts 1985, 1988 and 1996, so covers all statutory tenants in the private and social rented sectors. It does not include common law tenancies or licences (other than secure licences).

The Schedule will apply until 30 September 2020, but this date can be put back if necessary.

Business tenancies in England and Wales: protection from forfeiture etc: Coronavirus Act 2020: Section 82

Please see the article authored by James Nelson above for commentary on schedule 82 of the Coronavirus Act 2020.

Transportation, storage and disposal of dead bodies etc: Coronavirus Act 2020: Part 2 of Schedule 28

A “designated local authority” (which can include County and District Councils, London Borough Councils, combined authorities and the GLA) can give a direction under paragraph 5(1) of Schedule 28 requiring a person to do anything calculated to facilitate the transportation, storage or disposal of dead bodies or other human remains in the local authority’s area or from its area. A similar direction can be given by the Secretary of State if he considers a regional or national need arises.

A paragraph 5 direction may (among other things) (a) require a person to provide facilities, premises, vehicles, equipment or anything else within the person’s possession or under the person’s control (eg store bodies); (b) require a person to exercise any right they have to require others to do things (this could include requiring tenants to do things, like leave); (c) in the case of a direction by a local authority, require a person to do things outside the local authority’s area (so it could be another borough council).

In exercising its functions under this paragraph, a designated local authority or the appropriate national authority must have regard to the effect that any direction is likely to have on the ability of any person to carry on their normal business. A compensation scheme must be put in place.

Summary: The Secretary of State or a designated local authority could require a person to allow premises to be used for the storage of bodies. We are not aware of any local authorities having yet been designated.

Regulations under Part 2A of the Public Health (Control of Disease) Act 1984

Regulations under section 45C of the 1984 Act can be made for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere).

Regulations may in particular include provision imposing or enabling the imposition of restrictions or requirements on or in relation to premises in the event of, or in response to, a threat to public health.

So, regulations under section 45C can be made which have the effect of closing down certain types of premises, and regulations have been made in response to the coronavirus outbreak, doing just that. The regulations are the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020.

The 2020 regulations require the closure of businesses selling food or drink for consumption on the premises, and businesses listed in the Schedule, to protect against the risks to public health arising from coronavirus. The closure lasts until a direction is given by the Secretary of State. The Secretary of State is required to keep the need for these restrictions under review every 28 days.

The premises listed in the Schedule are

  • Restaurants, including restaurants and dining rooms in hotels or members’ clubs.
  • Cafes, including workplace canteens, but not including (a) cafes or canteens at a hospital, care home or school; (b) canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence; (c) services providing food or drink to the homeless.
  • Bars, including bars in hotels or members’ clubs.
  • Public houses.

Emergency Regulations: Civil Contingency Act 2004: Part 2

We have been led to understand that the government may not be using powers under the Civil Contingency Act because the need to use them is not urgent. This is a little surprising, and it would not surprise us, if it became necessary, if that view changed.

The Secretary of State can make emergency regulations if (a) an emergency has occurred, is occurring or is about to occur; (b) it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency; (c) the need for provision is urgent.

Emergency regulations may make any provision which the person making the regulations is satisfied is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made.

In particular, emergency regulations may make any provision which the person making the regulations is satisfied is appropriate for the purpose of (among other things) (a) protecting human life, health or safety; (b) treating human illness or injury; (c) protecting or restoring the provision of services relating to health; (d) protecting or restoring the performance of public functions.

Emergency regulations may provide for or enable (among other things) the requisition or confiscation of property (with or without compensation).

Emergency regulations may make provision only if and in so far as the person making the regulations is satisfied (a) that the provision is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made, and (b) that the effect of the provision is in due proportion to that aspect or effect of the emergency.

Emergency regulations must lapse no later than 30 days after having been made, but new ones may be made to the same effect.

Summary: If the government takes the view that an emergency has occurred and the provisions mentioned above apply, then it could make regulations which allow for the requisition of property for public health (and other) reasons. Regulations would, we are sure, only be made and used as a last resort, after voluntary arrangements had been pursued. A case in point is the establishment of the Nightingale Hospitals in London, Birmingham and Manchester.

This article is for general awareness only and does not constitute legal or professional advice. Law and guidance relating to the COVID19 pandemic is continually being updated and the law may have changed since this page was first published. If you would like further advice and assistance in relation to any issues raised, please contact us today by telephone or email  covidhelp@sharpepritchard.co.uk.

Posted in Coronavirus (COVID-19).