Guidance

[Withdrawn] Explanatory note on draft options for regional or local interventions

Published 24 July 2020

This guidance was withdrawn on 19 April 2022

This page has been withdrawn because it’s no longer current. Read more about living safely with coronavirus (COVID-19).

Applies to England

Executive summary

The government’s aim is to return life to as close to normal as possible, for as many people as possible, as fast and fairly as possible; in a way that avoids a new epidemic, minimises lives lost and maximises health, economic and social outcomes.

We now are able better to identify outbreaks at an early stage at local and regional levels, and have taken steps to ensure appropriate local intervention. Local outbreaks are identified and managed through continuous monitoring of the available data and different approaches are required according to local circumstances. The COVID-19 contain framework sets out how local authorities and national government will work together to manage local outbreaks. We have provided local authorities with new powers to act more quickly, where speed is paramount to prevent outbreaks from spreading more widely.

This note sets out how ministers could use existing powers to control an outbreak if local action is insufficient, building on the approaches taken nationally and in Leicester, and working closely with the devolved administrations in cross-border areas. It is accompanied by draft options for intervention that illustrate how we could legislate under the Public Health (Control of Disease) Act 1984 as part of this approach.

Where necessary and proportionate, ministers will use interventions based on these draft options – by laying regulations in Parliament – in a targeted way that responds to the particular circumstances in an area experiencing an outbreak. These measures will allow for effective targeted interventions, while seeking to avoid a return to a national lockdown. In the event that the government does need to make an intervention, it would do so in a way that targets the transmission of the virus while minimising the disruption to the economy and society.

Context

The government has taken unprecedented steps to respond to the threats and challenges presented by the COVID-19 coronavirus. At every stage, legislation has been a key element of our national response. The Coronavirus Act 2020 received Royal Assent on 25 March, putting in place a number of temporary measures and statutory powers. This was followed by a number of regulations laid under powers contained in Part 2A of the Public Health (Control of Disease) Act 1984 (‘the 1984 Act’). Among other things, these powers allow ministers to impose restrictions or requirements on persons, premises or things through regulations in order to respond to the incidence of spread of COVID-19 (see in particular section 45C(1) of the 1984 Act). These measures have each, at various times, provided the legislative basis for enforceable restrictions on individuals, businesses and other organisations in relation to COVID-19 (‘lockdown’).

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (S.I. 2020/350) and its subsequent amendments created the primary legal framework for lockdown in England. More recently it has been replaced by the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (S.I. 2020/684) (‘the National Regulations’), as amended, which have permitted the re-opening of numerous businesses as the virus has been brought under control. On 4 July, certain provisions were superseded in Leicester by the Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020 (S.I. 2020/685), as subsequently amended, which required further business closures and delayed other easings in Leicester to respond to a local outbreak.

The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 (S.I. 2020/750) provide upper-tier local authorities with the powers to implement certain ‘local lockdown’ measures relating to public spaces, events, and premises (including businesses). These powers will enable local authorities to act quickly in response to local outbreaks, where speed is paramount to prevent them from spreading more widely.

However, if more wide-ranging action would be more effective is required, ministers retain their existing powers to act more widely in response to more significant local or regional outbreaks. This note and the accompanying draft regulations have been published to set out clearly a menu of options available to ministers, which could be adapted and deployed in these circumstances. The intention is that these powers should be used to enable targeted local and regional action, but would still allow restrictions to be imposed nationally if that became necessary.

Setting out draft options for regional or local intervention

Where necessary, the options set out will allow us to control the virus in a smart, targeted and proportionate way, maximising the chance of limiting transmission in a way that minimises wider impacts. Clinical data will be used to monitor the need for intervention, to determine which restrictions are appropriate, and to determine their geographical extent.

These regulations have been prepared in draft form to provide a clear set of options that ministers could rapidly draw on in response to a local outbreak. Presenting a range of options allows ministers to adapt and deploy the appropriate interventions in an area. In particular, restrictions could:

• close businesses and venues in whole sectors within a defined geographical area;
• impose general restrictions on movement of people (including requirements to ‘stay at home’ or to prevent people staying away from home overnight, or restrictions on entering or leaving a defined area);
• impose restrictions on gatherings by limiting how many people can meet and in what settings;
• restrict local or national transport systems by restricting the cases in which individuals may use transport or enter or leave an area, by closing transport hubs entirely, or introducing restrictions on transport services; or
• mandate the use of face coverings in a wider range of public places.

However, these draft regulations are not an exhaustive list of options – ministers may also decide that other measures not included here, or adaptations of the options included here may be more appropriate for the circumstances in question. The government will continue to review the effectiveness of the frameworks and institutions in place for monitoring and responding to outbreaks.

How the draft options for intervention will be used

Decisions will be made following the governance process laid out in the COVID-19 contain framework, with ministers determining where regulations need to be laid to allow these powers to be exercised. The interventions necessary will depend on the situation.

The intention of preparing the draft regulations in advance is to allow bespoke regulations to be laid as quickly as possible, once ministers have decided that they are necessary. As has previously been the case, it is likely that the public and local businesses will likely be asked to comply on a voluntary basis prior to legislation taking effect, with regulations made under the 1984 Act if necessary, probably using the made affirmative procedure, recognising the need for swift enactment in order to contain an outbreak.

Local restrictions, when applied, will supersede whatever equivalent national restrictions may be in force in the relevant area. The precise geographical extent of the area where the regulations will apply, to be known in regulations as the ‘protected area’, will be agreed by ministers following advice from the Joint Biosecurity Centre (JBC) and Public Health England (PHE) and local authorities.

In enacting restrictions from among these options, it will be necessary for ministers to have regard to the public sector equality duty in assessing the impact of proposed measures, as has been the case for all regulations relating to COVID-19 restrictions made to date. Ministers acknowledge the potential for uneven impacts on groups with protected characteristics and are ready to explore mitigations with local authorities.

Regulations enacted from among these options would include a review period, within which ministers must consider whether powers are still required and proportionate. Interventions will only remain in place so long as ministers consider them necessary to prevent, protect against, control or provide a public health response to the incidence or spread of COVID-19 within the protected area.

Regulations made from among these options would also have an automatic expiry date built into them, and can only apply in relation to England.

Potential interventions set out in the draft regulations

Interventions set out under these draft options fall under a range of categories. The package of measures enacted to reflect the specific risks and characteristics of a local outbreak and could be altered as the risk of transmission changes. Some of the ways in which this could occur are set out below.

Each restriction would be subject to exceptions, including ‘reasonable excuse’ in many instances. Specimen lists of recognised reasonable excuses are set out in the draft options. An appropriate list for a particular restriction would be determined at the point at which regulations are enacted and reviewed, following medical guidance, as necessary and proportionate.

The list of reasonable excuses for a protected area could be extended at review points as the risk of transmission diminishes, progressively loosening restrictions on a local lockdown where the science allows.

Regulations may also provide for linked households, commonly known as ‘support bubbles’. In these instances, it is likely that any single-adult household could form a link with any other household, in such a way that no household is linked to more than one other. In these cases, some restrictions would apply to linked households in a different manner, to help those living alone.

Ministers may conclude that further interventions, beyond those set out in the draft regulations, are appropriate to address a particular situation; they are not limited to only those set out in the draft regulations.

Restrictions on leaving the place where a person lives

Regulations may provide for a complete prohibition from leaving or being outside of the place where a person lives, or is staying within the protected area, without a reasonable excuse.

Restrictions on overnight stays

Regulations may prohibit any person who lives in the protected area from staying overnight at any place other than the place where they are living, without reasonable excuse, and may also prohibit people from staying overnight in the protected area should they live outside it, without reasonable excuse.

Restrictions on gatherings

Restrictions on gatherings may be applied in protected areas. These may prohibit gatherings entirely or restrict the maximum number of people or number of households permitted at a gathering. These restrictions may vary between indoor and outdoor gatherings.

Exceptions to these restrictions may be made for specified gatherings: for example, small numbers of people may be permitted to gather for funerals in a protected area where indoor gatherings are generally prohibited.

Where restrictions on gatherings are imposed, the type of and maximum attendance at gatherings could be increased or decreased at review points in response to changes in the risk of transmission and to ensure that the restrictions remain proportionate. The gradual increase of numbers permitted to gather and kinds of gathering permitted would be a way to gradually ease an area out of a local lockdown in a managed way.

Closures of premises and businesses

The closures of certain premises and businesses may be required in protected areas, in proportion to the risk of transmission. The extent of closures of premises and businesses could be imposed and eased in a modular way based on an assessment of risk, replicating the path familiar from the gradual easing of the national restrictions. Potential categories that could be used in various stages are set out below. This list is not exclusive, and further categories could be developed.

All businesses open should continue to adhere to COVID-19 Secure standards, following guidance provided by the government and industry bodies, to minimise the risk of transmission.

Specimen schedules setting out examples of different possible approaches to business closures are included with the draft regulations, but the precise list of businesses and premises included would be determined at the point at which regulations are made or reviewed.

Non-essential retail

One potential intervention would see all non-essential retail closed as well as sectors considered higher risk, reflecting the national position before 13 June 2020. In these instances, only certain businesses specified in a schedule to the enacting regulation would be permitted to trade from their regular premises. This would include food retailers, pharmacies, newsagents, petrol stations, bicycle shops, post offices, medical services, and other specified essential retailers and premises.

Hospitality

Hospitality businesses could be required to close for non-takeaway food and drink services, as was the case nationally before 4 July 2020. Exceptions could be made for cafes or canteens in hospitals, care homes, schools, prisons, military establishments, workplace canteens where there is no practical alternative for staff to obtain food, or providing food and drink to the homeless.

Places of worship

Regulations may require the closure of places of worship within the protected area, except for specific purposes. The permitted uses can be determined flexibly in proportion to the risk of transmission.

The most restrictive option presented in the draft regulations reflects the original position in the national regulations, and permit places of worship to be used only:

• for funerals
• for the broadcast of acts of worship
• to provide essential voluntary services or public services

A less restrictive option could permit places of worship to be used for the purposes of childcare, and for private prayer by individuals.

Community centres

Regulations may require the closure of community centres within the protected area, except for specific purposes. The most restrictive option presented would see community centres closed for everything except essential voluntary activities or public services. A less restrictive option would allow community centres to open also for the purposes of childcare, and in order to host an indoor market.

Crematoria

Regulations may require the closure of crematoria to members of the public except for funerals or burials, where only those permitted should attend.

Tourism/holiday accommodation

Regulations may require the closure of businesses providing holiday accommodation, including hotels, hostels, individual holiday homes, campsites, caravan parks, and similar businesses.

The most restrictive version presented in the draft options provides exceptions for accommodating those unable to return to their main residence, and a limited number of other circumstances. A less restrictive version could also permit these businesses to accommodate key workers (when travelling for work), elite sportspeople (when travelling for training or competition), or those isolating themselves as required by law.

Restrictions on entering or leaving the protected area

Regulations may prohibit people from entering or leaving the protected area without reasonable excuse (a specimen list of reasonable excuses is included in the draft regulations). Where these restrictions are in place, it is likely to be a reasonable excuse to travel through the protected area as part of a journey that does not involve stopping or exiting a vehicle within the protected area, except in the case of an emergency or urgent need or where the person changes modes of transport or transport services as part of their journey (for example, changing between trains or driving to the airport to catch a plane). Examples of an emergency in which a vehicle might stop in the protected area include a medical emergency or mechanical breakdown.

It would also be likely to be a reasonable excuse to travel to work where not possible to work from home or to travel to school, where schools are open; to enter or leave the protected area in order to return home, for those away from home when restrictions were imposed; or to go to a place to self-isolate upon arrival from a place that carries such a requirement.

Restrictions on travel within or through the protected area

Regulations may place limits on the transport permitted within or through protected areas. This could include restrictions on the use of public transport without a reasonable excuse, a requirement on public transport operators to close or redirect portions of a transport network in or around a restricted area, or a specified reduction in the level of service provided within that area, taking account of demand.

Mandating the use of face coverings in a wider range of public places

We expect regulations will already be in effect across England which require people to wear face coverings on public transport, indoor transport hubs, shops, supermarkets, indoor shopping centres, banks, building societies, and post offices. The draft regulations will provide the option to mandate changes in the requirements for the use of face coverings in a wider range of public spaces and premises in the protected area, if deemed necessary based on the circumstances of a local outbreak.

Enforcement

The draft regulations retain the enforcement powers that have been included in national and local regulations to date. These include powers to direct, disperse and remove as well as the creation of an offence, punishable by a fine, for those who contravene a requirement in the regulations without a reasonable excuse, or who contravene a direction, reasonable instruction or prohibition notice given by police or other designated officers, or who obstruct an person carrying out a function under the regulations without reasonable excuse. Enforcement provisions will be selected based on the needs of the individual case and the specific restrictions in place; and any powers for the police will be determined based on what is necessary and proportionate.

An authorised person may also issue a fixed penalty notice to anyone who has reached the age of 18 who they reasonably believe has committed an offence under the regulations. Subsequent fixed penalty notices issued increase the amount on a sliding scale. This is currently from £100 for the first notice (reduced to £50 if paid within 14 days) to £3,200 for the sixth or subsequent notices, but could be increased should the government think it necessary. Draft provisions would allow previous notices under national or local regulations to count towards determining the amount of a fixed penalty notice.

The appropriate enforcement agency to enforce any restrictions will need to be considered on a case-by-case basis. As a result, there may be situations where powers not included in the draft regulations may be needed to enforce the restrictions.

Proceedings for an offence under regulations based on these drafts may be brought by the Crown Prosecution Service and any person designated by the Secretary of State.

Next steps

The government recognises the key role of Parliament in scrutinising and approving the government’s legislative response to the coronavirus pandemic. Owing to the nature of the pandemic, the government has had to act urgently and at pace. This has necessitated the use of the ‘made affirmative’ emergency procedure when making regulations on many occasions to date, so that they take immediate or near-immediate effect (prior to Parliamentary scrutiny of the detail of the regulations).

Publishing these regulations in draft should facilitate Parliamentary scrutiny, and give others the opportunity to consider how we may legislate in response to local outbreaks. The draft options may be amended over time as it becomes clear which potential interventions are most effective, any new measures that may be employed, and any further non-pharmaceutical interventions devised to respond to the virus.

In order to control the virus effectively, it is imperative that we are able to move at pace to impose the necessary restrictions as quickly as possible. Therefore, we expect that we may again need to make use of emergency procedures when making regulations, but would do so only where the situation demands it. Parliament would then scrutinise and approve those regulations in the usual way, under the requirements and approved processes of the 1984 Act.