Coronavirus Act 2020

The Coronavirus Act 2020 received royal assent yesterday and (with certain limited exceptions) came into immediate effect.

Bearing in mind that this blog is devoted solely to town and country planning and related subjects (although I reserve the right to have the occasional rant about Brexit – which, pace Boris Johnson, is still unfinished business), there is very little in the Act which is relevant in the context of this blog. The Act is to a large extent an enabling Act, giving ministers power to make various orders and regulations in the form of Statutory Instruments and to give various ministerial directions.

One section in the Act that is of relevance to development control is section 78, which authorises the Secretary of State for Housing, Communities and Local Government in England [and other relevant national authorities in other parts of the UK] to make regulations relating to the holding of local authority meetings, including timings, frequency, venues, public access and participation and also the availability of documents. The regulations may also provide for a reduced quorum at such meetings. The regulations can disapply any statutory provisions that currently apply to local authority meetings and procedures. This power to make regulations extends only to local authority meetings required to be held, or which are held, before 7 May 2021, i.e. within this and the next municipal year.

The temporary closure of, or restriction of attendance at, schools and other educational institutions (as well as childcare premises) in England and Wales is covered by Part 1 of Schedule 16, which comes into force only on an Appointed Day, when a relevant SI is made by the Secretary of State for Education. An order for closure takes the form of a temporary closure direction or directions made by the Secretary of State for Education under Schedule 16. The Schedule contains lengthy and detailed consequential provisions which it is unnecessary to discuss here. Current closures were announced last week in advance of the Act. I am not inclined to quibble over the legality of this. No doubt the Department for Education will take whatever steps may be necessary, now that the Act is in force, to regularise the position in this regard.

Schedule 22 deals with the power of “the Secretary of State” to issue directions relating to events, gatherings and premises. [I may have missed something, but I have been unable to find in the Act any provision that defines which Secretary of State is referred to in this Schedule.] These powers are extensive. They include the power to issue a direction prohibiting, or imposing requirements or restrictions in relation to, the holding of any event or gathering in England. There is also an unlimited power to issue directions imposing prohibitions, requirements or restrictions in relation to the entry into, departure from, or location of persons in, any premises in England. Such a direction may be issued in relation to specified premises, or premises of a specified description. (This may include a requirement to close those premises.) Criminal offences are created in relation to any failure to obey such a direction.

This leaves us with the problem of finding out precisely what orders or directions have been issued. A trawl through UK Statutory Instruments at 2.00 p.m. today did not reveal any relevant SIs other than those that I have briefly summarised in recent blog posts. It is still not clear what statutory powers ministers currently have for the recently announced restrictions on various activities. They clearly now have the necessary enabling powers under the Coronavirus Act, but appropriate subordinate legislation and formal ministerial directions will then be required to give legal effect to these restrictions. I am not questioning the need for such restrictions, and I have willingly followed government advice and purported ‘instructions’ in the public interest, but as a lawyer I naturally look for appropriate statutory or judicial authority when government seeks to implement various ministerial decisions. Presumably the necessary subordinate legislation and ministerial directions will be made in the next few days. It is particularly urgent to clarify precisely which premises are intended to be closed and which can remain open for the time being, especially bearing in mind the punitive sanctions for non-compliance.

UPDATE (27.3.20): The ‘missing’ SIs that are referred to in the blog post above have now been made. I will publish another blog post here later today explaining the new provisions.

© MARTIN H GOODALL