Coronavirus: update on the status of Scottish Government guidance for the Scottish Construction Sector

The Scottish Government has published more detail on its policy that non-essential construction sites in Scotland should close in response to the coronavirus pandemic: Coronavirus (COVID-19): construction sector guidance.

The legal basis for construction site closures

There is no legislative provision requiring the closure of construction sites in Scotland.

Schedule 1 of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 sets out a list of premises that are subject to mandatory closures and restrictions. These are predominantly food and entertainment outlets and the list does not include construction sites.

There are also more general restrictions on movement and gatherings of people within the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 but there is an exception to the prohibition on leaving home for travel where it is necessary for work that cannot be carried out from home, and for gatherings that are essential for work purposes. Construction work clearly cannot be carried out from home but there may be an argument that workers are prohibited from “gathering” on sites under this Regulation where the work is non-essential.

Schedule 22 of the Coronavirus Act 2020 provides that the Scottish Ministers may, by direction, close premises in Scotland or impose restrictions on persons entering or remaining in them. Reference to “premises” may be interpreted as including construction sites but this is not expressly stated and, in any event, no such directions have been issued so far.

The legal status of the construction sector guidance

With no express statutory requirement to close construction sites in the emergency coronavirus legislation, the Scottish Government has instead issued guidance to the construction industry. This guidance does not have binding legal status.

Neither the Coronavirus (Scotland) Act 2020 nor the Coronavirus Act 2020 confers authority on the Scottish Government to issue guidance to the construction sector requiring closure of sites. The guidance cannot therefore be interpreted as being statutory guidance which creates binding legal obligations on the bodies to which it is addressed.

Nor do we interpret the construction sector guidance as a direction under paragraph 15 or 16 of Schedule 22 of the Coronavirus Act 2020. The guidance does not cite either of those provisions and does not use the language of a statutory “direction”.

On this basis, we conclude that the Scottish advice, however sensible, is merely guidance. The closure of sites is a request rather than a clear and enforceable legal obligation and the Scottish Government presumably considers that this advice will be sufficient to guarantee compliance at this stage.

Key points in the guidance

The Scottish construction sector guidance took effect on 6 April 2020 and will remain in force until further notice.

The guidance advises that all non-essential construction sites in Scotland should close. Operations should be shut down safely and securely, ensuring that partially-built structures are safe, and if necessary wind- and water-tight, associated equipment is properly stored, and sites have suitable security for the duration. Exceptionally, if sites can be safely completed within five working days they can be completed.

Otherwise, only essential construction operations related to Critical National Infrastructure (CNI) should continue and these works should be conducted insofar as possible in accordance with the guidance on the safety and welfare of people.

There are 13 designated CNI sectors: energy; communications – Telecommunications, Public Broadcast, Postal Services, Internet; government; transport; finance; civil nuclear; defence; chemicals; space; health; food; water and waste and emergency services.

Essential projects which may continue are:

• projects to create or repurpose facilities which will be used directly in COVID-19 related activities including testing, containment, treatment, research, vaccine production, protective equipment manufacture, other key medical supplies, and other related activity, including supply chains to those projects;
• projects to create or repurpose facilities which will be used to accommodate key workers or free-up space in facilities to be used directly in COVID-19 related activities as above;
• projects to create or repurpose facilities and infrastructure critical to the national response to COVID-19 including food production, distribution and digital communication, where these facilities are likely to be completed and operational within 6 months; and
• projects which are considered essential public services or which will provide wider resilience and capacity across the system.

The essential repair or maintenance or operation of critical infrastructure may continue and the essential maintenance and repair (but not improvement) of buildings including private homes and commercial properties may also be carried out. Routine maintenance should however be deferred.

The guidance is due to be reviewed after three weeks so it is anticipated that any changes to the current position will be announced by the end of April.

Conclusion

The Scottish Government construction sector guidance remains non-binding advice for the time being. There is no clear means of the closure advice being enforced but the Scottish Government does have sufficient regulation and direction-making powers to close construction sites or prevent access to them if this advice is not complied with.

For the avoidance of doubt, we strongly recommend that the guidance is adhered to for the protection of public health.

Get in touch

The Construction section of Harper Macleod LLP’s Coronavirus Advice Hub is regularly updated with articles about the implications of Covid-19 on the construction industry and will include any further developments regarding this Scottish Government guidance for the construction sector.

Our construction team is also on hand if you require any advice or assistance.