Covid-19 Regulations – the enforcement role of local authorities
Horatio Waller looks at defining the enforcement role of local authorities and best practice on ‘designating’ officers for enforcement purposes.
Local authorities have had a somewhat tortuous relationship with the regulations introduced to deal with the Covid-19 pandemic. Their role in enforcing the regulations can be difficult to define, and no guidance or best practice has emerged yet on how local authorities should approach ‘designating’ officers to carry out enforcement functions. These are important issues, as local authorities who misunderstand their enforcement powers may be at risk of a legal challenge or jeopardising a prosecution. This article attempts to shed some light on them.
The provisions in relation to enforcement within the various regulations bestow powers of enforcement upon the ‘relevant person’ or the ‘authorised person’, terms defined through a closed-list. Whilst that approach is uniform throughout the regulations, the contents of the closed list is not.
Where the closed-lists do mirror each other is in relation to police constables and police community support officers, which are always named within the definition. Thus, constables and PCSOs are straightforwardly authorised to enforce all restrictions under the Covid-19 Regulations, as well as Local Directions issued by local authorities under the No 3 Regulations [1].
However, where differences and complexities emerge is with respect to the status of local authority officers as a ‘relevant person’ or ‘authorised person’. In most cases the closed-list is drafted to name ‘a person designated by a local authority for the purposes of this regulation’. This wording, if present, creates the potential for local authority officers to enforce those regulations if they are ‘designated’ to do so.
However, the potential is not there in relation to all Covid-19 Regulations. There are four key distinctions that must be recognised. First, local authorities should be careful to check the closed-list definition of the ‘authorised person’ or ‘relevant person’ to ensure the authority can designate a person for enforcement purposes in relation to those regulations. For example, the closed-list definition in the Face Covering Regulations in relation to the ‘authorised person’ who can enforce its restrictions and issue fixed penalty notices (FPNs) does not include a person designated by a local authority. [2]
Second, all the ‘lock-down’ regulations that been enacted since March have contained provisos preventing a person designated by a local authority for the purposes of those regulations from enforcing restrictions in relation to gatherings / movement. [3] This issue was discussed in an earlier article I wrote. Although the Regulations have been updated several times since that article was published, on 9 April 2020, the proviso remains. [4]
Thirdly, the No 3 Regulations define ‘local authority’ restrictively (unlike the other Covid-19 Regulations) such that in relation to two-tier authorities only the upper-tier authority may create ‘Local Directions’ or designate officers for enforcement purposes. [5] Thus, in relation to two-tier authorities, the issuing of ‘Local Directions’ and the choice of persons to be designated to enforce those ‘Local Directions’ is at the discretion of the upper-tier authority only. [6]
Fourthly, where a local authority has a power to designate someone to enforce particular Covid-19 Regulations, it cannot be assumed they necessarily have the ability to prosecute for offences under those Regulations. For example whilst under the All-Tiers Regulations local authorities may designate persons for enforcement purposes under regulations 9 and 11, under regulation 13 they will only have the power to prosecute for an offence under those regulations if they are designated to do so by the Secretary of State. [7]
Subject to those four points, local authorities have discretion to define the extent to which their officers can enforce the Covid-19 Regulations through ‘designations’ made pursuant to the Regulations. However, the term ‘designate’ is novel, and in the absence of any definition in the regulations or in guidance, it is not clear how local authorities should be approaching the process of designation.
Ideally the law should enable designations to be dealt with at a high-level and simplistic manner given the urgency of the situation and the frequency with which the regulations are amended and replaced. A high-level approach towards designations may be possible under the constitution and governance arrangements of the authority. For example, if the constitution of a local authority delegates power to a senior public health officer in respect of the control of infectious and notifiable diseases, conceivably the authority might decide to leave it to that officer to decide which officers employed by the authority will enforce which Covid-19 Regulations, without this being formally recorded in a scheme of delegation or subject to any further process.
However, a high-level approach such as this creates a considerable risk that the enforcement actions of the authority could be challenged on vires grounds, for example when prosecutions are brought in relation to offences under the regulations. For the following reasons, my view is that a more prescriptive approach is necessary to effectively ‘designate’ and empower officers to exercise enforcement powers.
For one thing, the relevant wording in the closed-list definitions in the Regulations provide as follows (underlining added): ‘a person designated by a local authority for the purposes of this regulation”. This wording implies that the discretion of the authority must be exercised with the particular regulation in mind, as opposed to the Covid-19 Regulations generally. This is understandable given that a local authority could conceivably choose to tailor its designations so that its officers are made a relevant / authorised person for the purposes of some but not all Covid-19 Regulations under which local authorities have a potential enforcement role.
The easiest, if not the only, way of evidencing that the authority has exercised its discretion on designation with particular regulations in mind is to create a record of the designation in writing which references the regulations in question. Thus, even if ‘designation’ could theoretically be achieved through a conversation, without a written record, as a matter of practicality the ‘designation’ will need to be recorded in writing. In the context of court proceedings where the power of a local authority officer is called into question a written document will be needed to evidence that designation took place, and the terms of the document will need to identify the relevant Covid-19 Regulations as well as the relevant officer.
Further, as explained above, there are certain restrictions which local authorities are barred from enforcing by the Covid-19 Regulations including those under the Face Covering Regulations and the restrictions under the All-Tiers Regulations in relation to movement/gathering. Thus, a sweeping written statement that officers may enforce ‘the Covid-19 Regulations’ is not advisable, because this could be challenged on the basis that the statement suggests the authority failed to appreciate that it is barred from enforcing certain matters.
These arguments are all supported by the detailed continuity/transitional provisions that have been included in recent iterations of the Covid-19 Regulations. These provisions cause local authority designations made under revoked regulations to have effect for the purposes of new regulations. [8] They would not have been necessary if ‘designating’ someone for the purposes of the regulations could be carried out in a high-level or broad-brush manner. Rather, they presuppose that each local authority has created prescriptive designations in relation to particular regulations that have since been revoked.
For these reasons, it is at least best practice, if not legally mandatory, with respect to designations to set down in writing the particular regulations in respect of which officers are ‘designated’. They should name the title of the regulations, and specify which particular regulations therein officers are designated in respect of [9].
A belt and braces approach would involve naming the particular officers who are ‘designated’ although it will probably be sufficient to describe the officers by virtue of their title or department, as long as the officers designated can be identified with certainty.
The governance arrangements and constitution of the local authority should be examined to determine who should write the designation and its precise form. It would be best practice to write the designation in the form of a delegation, in order to ensure the designation is not liable to challenge on the ground that it is unconstitutional or contrary to the authority’s governance arrangements.
If designations are written with this level of particularity, they may need to be updated as and when new Covid-19 Regulations are introduced. However, as explained above, recent Covid-19 Regulations have been drafted to include detailed continuity/transitional provisions so that earlier designations continue to have effect notwithstanding they were created in relation to Regulations that have been revoked. Assuming this approach continues to be adopted, this should negate the need for designations to be revisited in future.
To conclude, local authorities should be adopting a prescriptive approach towards designating officers for Covid-19 enforcement purposes, as a matter of best practice if not legal necessity. Although a high-level approach might be simpler and lead to less delay, this will also carry a risk of a legal challenge and of jeopardising prosecutions. On the whole, it would be far better for the process to be carried out properly.
Horatio Waller is a barrister at Francis Taylor Building.
[1] See the Health Protection (Coronavirus, Restrictions) (England) No 3 Regulations 2020 750.
[2] See the Health Protection (Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 791, Regulations 5(9) and 7(11).
[3] The current iteration of the lockdown regulations is the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 1374. See the proviso set out in Regulations 9(10) and 11(10).
[4] At the time the lockdown rules were set out in the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 350.
[5] See the Health Protection (Coronavirus, Restrictions) (England) No 3 Regulations 2020 750, regulation 1(4).
[6] The upper-tier authority could choose to designate officers employed by lower-tier authorities.
[7] Earlier designations from the Secretary of State may continue to be effective to enable local authority prosecutions under the currently extant regulations, but I will keep my ink dry on that thorny issue for now.
[8] See for example the Health Protection (Coronavirus, Restrictions) (Local Authority Enforcement Powers and Amendment) (England) Regulations 2020 1375, regulation 10.
[9] The provisions in respect of enforcement and fixed penalty notices should be individually addressed.
