The Scottish Government has given local authorities the power to make prohibitions, requirements or restrictions in relation to specified premises (e.g. bars, shops and restaurants), events and public outdoor places.
The Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020 (the Regulations) give local authorities the power to take measures to prevent the spread of COVID-19 within their area by way of directions. These must comply with specific conditions before they are made.
What directions can a local authority make?
Under the Regulations, a local authority can issue prohibitions, requirements or restrictions for specified premises, events and public outdoor places. Premises (e.g. bars, shops and restaurants) can be required to close or restrict entry; imposing an obligation on the owner or manager of the specified premises. Directions regarding events place this burden on the owner or occupier of the events venue or an organiser of the event, but not on attendees of the event. Such directions can impose a requirement to inform potential attendees of restrictions. Access to public outdoor places can be restricted, e.g. a ban or curfew. Here, both the local authority and owner of the place must take reasonable steps to restrict access in line with the direction.
The maximum length of a direction is 21 days. The direction must also contain detailed information regarding the specifics of when and where the direction applies. A direction can be appealed to the Sheriff Court and must clearly state this fact.
When can a direction be made?
A direction may only be made where:
- It is necessary to prevent, protect against or control the incidence and spread of COVID-19; and
- It is a proportionate means of achieving that purpose.
The local authority must review each direction every 7 days to ensure this continues to be the case. If at any point they think either of these criteria are not satisfied they must revoke or amend the direction to make it compliant. To help with this determination, a local authority must consult Scottish Government COVID-19 guidance before making a direction.
The Scottish Government can also make a direction requiring a local authority to make a direction where they believe the criteria are satisfied. In this situation, the local authority is not responsible for ensuring the direction is compliant with the criteria, at first. However, they must still make weekly reviews to ensure it continues to be.
If the direction imposes restrictions on a person, notice of the direction must be given to that person in writing. In all other situations, the direction must be published on the local authority's website. The local authority may take other steps to publish directions as seem necessary to inform all affected persons. All directions must be notified to the Scottish Government and all adjacent local authorities, including those in England (if applicable).
How are directions to be enforced?
Local authorities can designate officers to serve prohibition notices where a direction is being contravened. The police are given further powers to direct events to stop and people to leave places and premises. The police can also remove people from places and premises with, where necessary, reasonable force.
There are multiple new offences for breaches of directions, or of the Regulations themselves. All of these have a "reasonable excuse" defence, e.g. a person needs to access a public space subject to a direction to get to their home, or to escape injury or harm.
These offences can either be prosecuted through summary procedure or a fixed penalty notice can be given by the police. A fixed penalty notice imposes a penalty of £60; reduced to £30 if paid within 28 days. The value increases with each subsequent fixed penalty notice: £120 for the second notice and £960 for the third notice and above. In calculating this, any notice a person has received for contravention of Scottish COVID-19 regulations will be considered.
For more information on the law as it relates COVID-19 and the impact on Local Government please contact Niall McLean, Johanna Boyd or your usual Brodies contact.
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