Stopping non-essential construction — is it legally binding?
The fundamental principle here is guidance is not the same as legislation.
And as such, is the Scottish Government guidance that says any work on non-essential construction should stop simply a direction, or is it legislation that must be followed?
The compliance section of the guidance says: “Everyone is instructed to comply with the rules issued by the Scottish and UK Governments in relation to coronavirus, in order to protect themselves and others.”
Unlike places like pubs, cafes, theatres and hotels that are included in the legislation as businesses that have to close, construction sites are not featured on the schedule.
Is it legally binding?
Under part 3 of schedule 22 of the Coronavirus Act 2020, Scottish ministers have the power to close premises and impose restrictions on any person entering or remaining in them.
Ministers can issue directions which impose prohibitions, requirements and restrictions in relation to the entry into any premises in Scotland. These must be issued in writing or be published in such way to brought to the attention of those affected. Plus, no direction can be issued unless ministers have considered the advice of the chief medical officer.
The construction guidance has been issued in writing and published online and therefore satisfies the enforceable direction criteria.
How will it be enforced?
Under the health protection regulations, a relevant person such as a constable can enforce compliance.
If someone doesn’t observe restrictions imposed without having a reasonable excuse, they will be guilty of an offence and may be issued with a fixed penalty notice. The fixed penalty is £60 which doubles after every subsequent offence up to a maximum of £960.
As pointed out by economy secretary, Fiona Hyslop, the main reason sites have been instructed to close is to ensure “businesses act responsibly and align fully with the social distancing measures introduced to protect the nation’s well-being and economic future.”
While the social distancing rules set out in The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 are not as stringent as those set out in government guidance, they are still legally binding.
Social distancing and lockdown
When lockdown first began, the concept of social distancing was alien to many of us and seemed like it would be almost impossible to implement in daily life, let alone on a busy construction site where many hands are required to make light work.
However, we are now a month on, life has changed dramatically for us all and the restrictions needed to implement social distancing have now been enshrined into both UK and Scottish law.
It is clear that the underlying basis of the guidance is ensuring compliance with social distancing regulations. The Scottish Government has recognised the vast majority of construction sites will struggle to comply with the regulations if they remain open and have removed any temptation and risk to construction workers.
So the question of whether construction sites, other than those falling under the exemptions listed, legally have to close isn’t black and white. That said, the overwhelming advice, and the sensible approach, would be to shut, particularly if workers may be exposed to the virus.
And while this will be welcome clarity for many, it has not addressed the contractual impact and ramifications that site closures now present. That’s a topic for another blog post.