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New regulations have more bite but concerns over clarity of legislation remain.
Thursday, 1 October 2020, Katie Coyne
Since the start of the pandemic, each time new rules are brought in local authorities in England are left playing catch-up and are given no guidance on enforcement until well after the fact.
Mirroring the concerns mounting among MPs at the lack of parliamentary scrutiny of COVID-secure regs, the Association of London Environmental Health Managers (ALEHM) has urged Whitehall to at least sense check with the people who are doing the work.
ALEHM secretary Janine Avery said of the last lot of regulations that came in on Thursday: “They came in at midnight. They were enforceable from 5pm, and the regulations arrived about 2am for that day.
“And you're supposed to have people authorised, know what they're doing, read the regulations, train everybody. I mean, it's nonsense.”
She added: “I just wish the government would ask the people who are doing the work – before they bring something in – to make sure that it works. That's the real frustration at the moment: there's just no collaboration or consultation at all.
“Obviously, you're hearing the same thing in parliament. MPs are saying the same thing.
“You [the government] can't do it all on your own, you've got to ask the people that know what they're doing because otherwise you are going to get it wrong.”
Avery pointed to the decision made to close pubs at 10pm, and said any licensing officer could have warned Westminster this would mean people congregating in town centres after closure. Licensing laws were changed in 2005 to eliminate the problems associated with ‘chucking out time’.
ALEHM has been calling on the government to introduce more straightforward measures for EHPs to swiftly take action against businesses not complying with COVID-secure rules – as is available to officers in Wales.
In Wales, If a business doesn’t comply with COVID-secure regulations officers can serve a Premises Improvement Notice, giving the business 48 hours to become compliant. If a business does not do this, there is also power to serve a Premises Closure Notice. This notice can also be served to apply to areas within a business, or to close a whole business, where there are very serious non-compliance issues.
In England, however, there is no clear list of all available powers and guidance on how they should be used. Enforcement officers have to rely on existing legislation such as the Health and Safety at Work Act to enforce COVID-secure rules.
An added complication is that while Whitehall is instructing councils to use the Health and Safety at Work Act, officers report that the Health and Safety Executive is advising against using it, saying as workplace legislation it is inappropriate to be used in a community acquired infection situation.
Improvement notices give a businesses a minimum of 21 days to comply, which is too slow to contain an outbreak, and ALEHM is concerned that prohibition notices can only be used in the most egregious cases. Avery said: “They [HSE] gave us the example that the only time you would use a prohibition notice under the Health and Safety at Work Act was if you were in a hospital ward, or something like that, with COVID positive patients and you were putting at-risk people in with no PPE.
“It doesn't get any worse than that. And that was the only example they could give.”
New powers were introduced under the Coronavirus No 3 regulations to control businesses that are non-compliant with COVID-secure rules. However, councils have to get permission from their director of public health, and there has to be an imminent threat to public health. This is difficult to quantify though ALEHM believes it probably means you need to have COVID-19 cases associated with the business concerned.
Avery said she had heard of just one London council, Barking and Dagenham, that had used these regs. To close down a problem business for seven days, this required gathering the evidence which was then put under scrutiny from two heads of service, the director of public health and the chief executive. However, it’s worth noting that the process for using the regulations will differ from council to council: EHN magazine (October 2020 print issue, due out shortly) reports on the regulations being used effectively by Blackburn with Darwen Borough Council. The key to this apparently was the service lead for public protection being given authority by the director of public health to use the regulations as he saw fit.
Some councils have even been exploring whether it is possible to use anti-social behaviour legislation (community protection warning notices).
However, Avery said there was some good news in the form of increased powers brought in recently. ALEHM has welcomed the introduction of Fixed Penalty Notices for contravention of COVID-secure rules but said guidance in their use was needed as EH officers have not used them before.
Avery said consensus among London officers was that these should be used as a final measure, replacing prosecution, as “no one's going to get into court anytime soon with anything”, and in accordance with the UK government’s direction to take a graduated approach.
COVID-secure guidance - such as wearing face masks, keeping in groups no larger than six, retaining contact information of customers in hospitality – has now become mandatory. This should help alleviate fears that councils who take steps to ensure businesses comply could face legal action.
Avery added: “The fact that they've made the guidance mandatory means you can very clearly ask for it. Before you couldn't ask for it, really, because it was just guidance. You could never enforce something that was just a piece of guidance not related to the Health and Safety at Work Act. Now they can do whatever enforcement is necessary. It's just that that enforcement process is a bit lacking.”