The Coronavirus Act 2020 ("the Act") came into force on 25 March and gives the Scottish Ministers powers to make regulations for public health protection and to issue directions requiring the closure of premises.

In light of these developments many clients have been in touch in recent days seeking clarity on the power of authorities to enforce the closure of business premises in Scotland.

There are two routes to enforced closure of premises in Scotland:

1. The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 ("the Regulations")

The Regulations list types of premises which must close. Those include cafes, restaurants (except home delivery services), bars, cinemas and gyms.

The Regulations also list types of premises which may remain open provided reasonable measures are taken to observe social distancing. Those premises include food retailers, pharmacies, newsagents, post offices, petrol stations and banks. These businesses can also be forced to close if reasonable measures are not maintained.

There are separate requirements for businesses which offer goods for sale or hire in a shop, library services and, subject to some limited exceptions, provide holiday accommodation to cease.

With immediate effect, police have powers to enforce the Regulations, including enforced closure of premises. Failure to comply with the requirement to close is a criminal offence punishable by a fine up to £5,000.

2. Specific directions under the Coronavirus Act 2020

The list of premises in the Regulations is not exhaustive. For instance, offices, construction sites or factories are not included. The Scottish Ministers have separate powers to enforce closure of these premises under the Coronavirus Act 2020. Those enforcement powers are triggered by Scottish Ministers making a "Declaration of threat to public health in Scotland due to coronavirus". The necessary declaration was published online immediately after the Act was passed on 25 March 2020.

The declaration having been made, the Scottish Ministers may take steps to enforce closure by issuing a direction naming a particular premises or class of premises. That is distinct from the procedure under the Regulations where, in relation to specified premises, police powers to enforce closure are exercisable immediately and are not dependent on a specific direction being issued by the Scottish Ministers. There is nothing in the Act to prevent the Scottish Ministers issuing a direction in respect of premises specified in the Regulations.

Where a direction has been made, the police have the power to effect closure. As of 31 March, no directions naming particular premises or class of premises have been published by the Scottish Government. The Scottish Government has, however, confirmed that it will exercise its powers if necessary. If issued, such directions would require a business to close its premises immediately.

Failure to comply with a direction is a criminal offence, punishable by an unlimited fine. Both individuals and organisations may be prosecuted for such failures.

Are businesses whose premises are required to close eligible for compensation?

Neither the Act nor the Regulations provide a general entitlement to compensation for losses incurred as a result of premises being subject to a requirement to close. However, the Act gives Scottish Ministers a discretionary power to pay compensation to a business in receipt of a direction issued by the Scottish Ministers under the Act.

Brodies is able to advise on the full range of areas affected by COVID-19. If you have any questions in relation to the issues raised in this blog, please contact Paul Marshall, Lisa Kinroy or your usual Brodies contact.