Coronavirus (COVID-19): local authority directions

Using these powers

Direction purpose

Regulation 3(1) provides that a local authority may give a direction if the authority considers that both of the following conditions are met:

• that the direction is necessary for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection by coronavirus in the local authority’s area
• that the prohibitions, requirements or restrictions imposed by the direction are a proportionate means of achieving that purpose

In very simple terms this means there must be a clear coronavirus-related public health issue which it is necessary for the direction to address in a proportionate way.

The Regulations give local authorities the power to make direction relating to individual premises (regulation 5); direction relating to events (regulation 6); and directions relating to public outdoor spaces (regulation 7). Where a local authority gives a direction relating to a public outdoor space, it must take all reasonable steps to prevent or restrict access to the place in accordance with the direction.

When a direction can be issued

Scottish Ministers expect that these powers are used as a last resort, and reasonable effort must be made to resolve the issue in partnership with the premises owner or event organiser beforehand. Regulations 5(8), 6(6) and 7(5) require a local authority to take reasonable steps to give advance notice of the direction to those affected by it.

The four Es model (engage, explain, encourage and then enforce) should be used by local authorities when considering the use of these powers. Local authorities should not, generally, impose a condition until they have tried to engage, explain and encourage compliance with a premises owner or event organiser. The enforcement step should not be used unless they have exhausted other routes and considered whether conditions to be applied are necessary, proportionate, practical, and achievable.

Who can issue a direction

Under these Regulations, a local authority may give a direction where the conditions in regulation 3(1) are met. Given these powers are specifically for public health purposes, directions should only be issued by an appropriate officer within a local authority.   Such an officer must be capable of identifying the public health issue that is being caused by the activity or practice that is being undertaken. 

Regulation 4 gives a power to Scottish Ministers to give a direction to a local authority requiring the authority to give a direction, if the Scottish Ministers consider that the conditions in regulation 3(1) are met. If the Scottish Ministers consider that one or both of the conditions are no longer met, the Scottish Ministers must direct the local authority to revoke the direction, either with or without replacement. 

Determining if a direction is required

A local authority must consider the necessity and proportionality of any measures being imposed on a business, event or public outdoor space.   Reaching a decision on this will require consideration of current public health advice, published Scottish Government guidance, and current Regulations that are in force in relation to Coronavirus.  Sources include:

• Scotland’s coronavirus route map particularly the supporting evidence documents
• coronavirus guidance including sector specific documents  
• Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020 (which may be amended from time to time) 

During outbreaks very specific and localised information may also arise from Test and Protect data. Circumstances may arise where the Incident Management Team may request an early and specific intervention by the local authority.  Under such circumstances it is incumbent on the Incident Management Team to provide the evidence necessary to enable the Local Authority to take quick action.

What form a direction should take

Any direction issued under these powers should as a minimum provide the following information in a clear and descriptive manner:

• the public health issue being addressed
• that the direction is considered necessary and proportionate under regulation 3(1) of the Regulations,
• the prohibitions, requirements, or restrictions which are being applied
• the date and time it is to have effect, and the date and time it expires (in the case of directions relating to premises and directions relating to public outdoor places, this must be no later than 21 days after it takes effect)
• advice on steps the business can take to rectify the issues and get revocation of the Direction considered
• the appeals process – the Regulations require the direction to provide details of the right of appeal to a sheriff and the time within which such an appeal may be brought