Drastic new restrictions and lockdowns across the North East could have been avoided if stronger powers to crack down on businesses in England failing to comply with COVID-19 rules had been available.
This is according to the Association of London Environmental Health Managers (ALEHM) which has since the start of September been calling for stronger powers for local authority (LA) enforcers, like those available to officers in Wales.
EH and other LA officers in English councils are having to use existing powers under the Health and Safety at Work Act to enforce the COVID-19 secure guidance, because it is not legally enforceable in itself. ALEHM argued that this was too restrictive and slow. The association said that officers in England need the sort of beefed-up powers that are available in Wales and Scotland.
In addition, ALEHM argued, while some enforcers in England are using health and safety legislation many are “uncomfortable” using it to enforce non-statutory public health guidance – around things like contact tracing, physical distancing, venue numbers – and are worried action they do take for non-compliance will be successfully challenged in court.
A swath of local lockdowns has been introduced across the North East, with a confusing array of rules regarding where people can go and who they can mix with. There are additional and different restrictions for those living in Oldham, Bolton, Blackburn with Darwen, Pendle and Leicester.
ALEHM secretary Janine Avery said many of these lockdowns and much stricter measures could have been avoided had local enforcement officers been given more powers. “We could start to deal with these problems earlier before you get to the stage of a lockdown. We have to wait until we have a large rise in cases to enact the No. 3 regulations [Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020]. So we would be able to deal with the pubs, for instance, when there’s lots of overcrowding.
"The current powers given to LAs in the No. 3 regulations require there to be evidence of a high risk of infection which is being interpreted as meaning that must be an increasing number of cases, before a direction can be issued to prevent any at risk activity in a business. It needs support from the director of public health.
"The government states there are powers under health and safety legislation which can be used where there is less risk but there are very limited numbers of H&S-authorised and sufficiently experienced officers to deal with this under H&S legislation and the powers available do not allow for swift action to be taken to rectify the non-compliances.
"Adding powers to public health legislation, like they have in Wales, allows officers from a range of regulatory backgrounds to be authorised and take action against non-compliance swiftly and effectively."
Avery said the police have been given extra powers to address people meeting in groups larger than six but that the police are a limited resource, and that other local enforcement officers could be used to assist.
ALEHM chair Steve Miller described the legislation available in England as “toothless”. He said: “it is not a case of locking the door after the horse has bolted, more like constantly trying to recapture the horse each time it escapes.”
Welsh regulations give officers the power to serve a Premises Improvement Notice, giving a business 48 hours to comply with COVID-secure requirements. There are also powers to serve a Premises Closure Notice to deal with non-compliance with Improvement Notices, or to stop business activities, areas within businesses, or close the whole business.
ALEHM says the majority of businesses are compliant – in London it estimates compliance at 90-95%. However, it said that even the small “but significant” proportion of those failing COVID-Secure requirements could cause an increase in local cases and, in the worst scenario, a lockdown. These fears, Avery says, are now being borne out.
ALEHM said local enforcement teams were doing their best to help businesses meet the rules with online advice, written guidance, phone calls, spot checks with some face-to-face visits. The latter, the association said, were being prioritised for problem sites where they had received complaints. However, with repeat offenders who won’t make the changes needed the COVID-secure guidance for business is not legally enforceable.
It has concerns around close contact premises such as beauty salons and barbers where staff are not wearing PPE, and lack of compliance across some smaller independent restaurants, cafes and pubs.
ALEHM is also worried about the failure of the public to comply with physical distancing, so that people are meeting in large groups within a business, or outside on the street and blocking pavements, which are not being addressed by the businesses involved.
What do you think? Have you been able to enforce the COVID-secure restrictions using existing regulations? Email [email protected]