1. Those venturing to their local park over the weekend probably witnessed an increased presence of police constables, out to enforce the new restrictions on movement and public gatherings. Those restrictions, as well as rules forcing the closure of certain businesses and premises, were introduced on 26 March 2020 by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
2. Without question, police constables have authority to enforce the new restrictions set out in the 26 March Regs. Their powers, set out in Regulation 8, include removing people to their homes where they are in breach of the movement/gathering restrictions. However, there is some debate amongst legal professionals on the extent of enforcement powers available to local authority officers. Rather than specifying which local authority officers have enforcement powers, the 26 March Regs enable local authorities to designate officers to enforce the regulations. It is my view that local authority officers designated in this way may only enforce the rules forcing the closure of businesses and premises set out in Regulations 4-5. However, there is an alternative view gaining traction that local authorities can designate their officers to enforce all the rules in the 26 March Regs, including those relating to movement of people and gatherings in Regulations 6-7. In my view, this is wrong. I will explain why.
3. To understand the debate it is necessary to have regard to the regulations passed on 21 March 2020, the designation letter signed by Matt Hancock dated 22 March, and the 26 March Regs. This task involves navigating a complex, and potentially brain-twisting, statutory to and fro. But, on proper analysis, a clear and logical path can be divined.
4. The 21 March Regs forced the closure of a narrower category of businesses/premises (the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (SI 2020/327)). The 26 March Regs (full title above) revoked the 21 March Regs, expanded the list of premises/businesses required to close and introduced restrictions on movement and gatherings.
5. In relation to enforcement, the 21 March Regs provided by regulation 4(1) that:
"A person, designated by the Secretary of State, may take such action as is necessary to enforce a closure or restriction imposed by regulation 2."
6. The designation letter Matt Hancock published on 22 March provides, where material, as follows (underlining added):
"2. An officer appointed by a local authority to enforce the Business Closure Regulations is designated by the Secretary of State, to take such action as is necessary to enforce a closure or restriction imposed by those regulations.
3. All police constables are designated by the Secretary of State, to take such action as is necessary to enforce a closure or restriction imposed by the Business Closure Regulations."
7. Of course, at this stage, the 21 March Regs and the designation letter could not have contemplated, or provided for, the enforcement by local authority officers of restrictions on movement/gatherings since those further measures were only introduced 5 days later. These 21 March Regs were, in turn, revoked by the 26 March Regs except in relation to matters "saved" by Regulation 2 of the 26 March Regs. Regulation 2(3) provides for the saving of the 22 March Designation. Regulation 2(3) states the following (where material):
“(3) A designation made in exercise of powers conferred by regulation 4(1) … of the first Regulations is to be treated as it had been made in the exercise of powers conferred by regulations 8(12)(a)(iv) … of these Regulations.”
8. The 26 March Regs provide enforcement powers in Regulation 8(1-11) such as a power to remove persons to their homes when they are in breach of the movement and gathering restrictions. These powers are available to a "relevant person" as defined in reg 8(12)(a) which provides as follows (underlining added):
"(a) a “relevant person” means—
(i) a constable,
(ii) a police community support officer,
(iii) subject to paragraph (13), a person designated by a local authority for the purposes of this regulation, or
(iv) .a person designated by the Secretary of State for the purposes of this regulation"
9. Regulation 8(13) states as follows (underlining added):
“(13) A local authority may only designate a person for the purposes of this regulation in relation to a requirement in regulation 4 or 5.”
10. The requirements in Regulations 4-5 referred to are solely those concerning closure/restrictions on businesses/premises. They do not relate to enforcing the restrictions on movement or gatherings are set out in Regulations 6-7.
11. The view that local authorities may designate their officers to enforce all the restrictions set out in the 26 March Regulations rests principally on Regulation 8(12)(a)(iv) and the 22 March designation (extracts set out above). Under the savings provision in Regulation 2(3), the 21 March Designation is to be treated as having been made under Regulation 8(12)(a)(iv) of the 26 March Regs. It is argued in particular that:
a. any officer appointed by a local authority should be treated – by virtue of the 22 March designation – as in effect designated by the Secretary of State under Regulation 8(12)(a)(iv); and
b. the caveat as to the local authority’s designation power in Regulation 8(13) does not apply to Regulation 8(12)(a)(iv) but only to 8(12)(a)(iii).
12. There are myriad problems with such an argument. Foremost is that regulation 8(13) clearly restricts the power of a local authority to designate officers to enforce the new restrictions. It is not expressly limited in ambit only to regulation 8(12)(a)(iii). The operative part is “for the purposes of this regulation” which suggests regulation 8(13) applies to designations under regulation 8 generally rather than designations under a specific sub-part. For these reasons, when a local authority appoints a person pursuant to the 22 March designation, they are appointing that officer to be a “relevant person” pursuant to regulation 8 and that designation is therefore caught by Regulation 8(13).
13. Second, the Regulations clearly separate the powers of the Secretary of State and the local authority to designate officers within Regulations 8(12)(a)(iii) and (iv) respectively. The suggestion that the Secretary of State can (and did) expand the powers available to the local authority to designate enforcement officers through his 22 March designation would, if correct, render this distinction within the Regulations meaningless. Why would Matt Hancock, who introduced the 26 Regulations, have provided a separate and narrower designation power to local authorities if the effect of his 22 March designation was to provide them with a broader designation power?
14. The 22 March designation letter may not contain within it any caveat preventing local authority appointed officers from enforcing the rules on movement and gatherings. However, the 26 March Regulations are law and the provisions within them, including Regulation 8(13), therefore trump the terms of the designation letter. In addition, it should come as no surprise that the 22 March letter draws no distinction between the powers of local authority officers and of police constables. When this letter was written on 22 March, only the 21 March Regs were in force which only contained rules forcing the closure of premises and businesses. There were no rules on movement and gatherings at that time.
15. To conclude, as the law stands, Regulation 8(13) governs the position and that provision restricts local authorities to giving their officers enforcement powers only in respect of the rules forcing the closure of premises and businesses. If one takes a step back from the statutory labyrinth, this makes good sense. Whilst local authority officers are enormously experienced in enforcing rules relating to the closure of premises or businesses, only police constables have the specific training and experience to police people. Attempts by local authorities to enforce the rules restricting movement and gathering have no lawful basis under the 26 March Regulations.
This article by Horatio Waller was originally published in the Journal of Licensing.