At 6.50 am on 10 February 2020 Matt Hancock signed off the Health Protection (Coronavirus) Regulations 2020, SI 2020/129. The press reported that the urgent need for the regulations was that some people subject to quarantine by agreement had said they could see little point in the process and intended to leave. I suggested when I last wrote about quarantine that the lack of an enforcement power made contractual agreement a shaky basis for detaining hundreds of people for 14 days.
The Secretary of State has now put in place a raft of coercive powers, including a power to hold people in isolation and for a constable to take someone back to isolation – using reasonable force – and to enter premises to enforce the regulations. This note summarises those powers.
The new regulations create additional powers to control people who may have coronavirus where the Secretary of State declares that the transmission of coronavirus is a “serious and imminent threat to public health” by way of a notice on the gov.uk website – gone are the old days of publishing notices in the Official Gazette. At the same time as making the regulations the Secretary of State declared that such a threat existed, and that, for the purposes of exercising these powers, Wuhan and Hubei province were “infected areas” and that Arowe Park and Kents Hill Park hospitals were “isolation facilities”.
The powers apply where either condition A or condition B is met. Condition A is that the Secretary of State or a public health consultant believes that a person (P) may be infected with coronavirus and there is a risk that P might infect others. Condition B is that P has arrived in England on a ship, aircraft or train and has left an “infected area” (ie Wuhan or Hubei province) in the previous 14 days. The regulations allow restrictions to be imposed by decisions, applying to individuals or groups, where certain defined circumstances arise.
The regulations give the Secretary of State the power to impose “screening requirements” (reg 6), obliging P to give samples, produce documents and answer questions. Regulation 4 gives a power to detain a person for 48 hours or while this screening takes place. Regulation 7 creates a power to restrict P’s travel and other activities and P’s contact with specified people where “necessary and proportionate” to reduce the risk of P infecting others.
What about quarantine? The regulations deal with both “detaining” someone and “isolating” them. Regulations 5 and 8 allow the Secretary of State or a public health consultant to impose “any other restriction or requirement” on P – including being held in isolation – which is necessary and proportionate for the purpose of reducing or removing the risk of the spread of coronavirus. Restrictions can be imposed on groups and not just on individuals (reg 10) – so an entire plane or ship load of passengers could be covered by an order.
There are significant police powers. As you would expect there is a power for a constable to return someone to detention or isolation by using reasonable force (reg 13). Notably there is also a power for a constable to “remove someone to a hospital” and to enter any premises in order to do so on the basis of reasonable suspicion that the person may be infected with coronavirus. The press has pointed out that – if used to their full extent – these powers are extensive and could see people forcibly carried off for screening, even with no medical assessment that they were ill or a risk to others. When doing this the police officer must have regard to any guidance published by Public Health England (reg 14(5)(b)). Police forces will be concerned about the training required for officers both to use the powers lawfully and to reduce their own risk of infection – it is, after all, a respiratory infection, and therefore relatively easy to transmit.
A number of offences of non-cooperation are created, punishable by fines. People subject to restrictions are given various procedural rights, including the right to challenge their detention by appeal to a magistrates’ court. This is presumably included with articles 5(4) and 6 of the European Convention in mind. The Act empowers the creation of offences and of appeal rights, section 45F.
The regulations are made under the Public Health (Control of Disease) Act 1984, sections 45B and 45C. The Act does envisage quarantine as a possible result of regulations under section 45B but that section only applies to preventing danger from ships, planes and trains arriving in the country and to implementing international agreements. As section 45B does envisage quarantine (see s.45B(2)(b)) it might be the basis of the regulations so far as they apply to people currently detained on returning from Wuhan.
However, what about people possibly infected in the UK and so not obviously covered by s.45B? The position on imposing quarantine under s.45C is less clear. Section 45D(3) expressly excludes from regulations under s.45C a requirement that “P be kept in isolation or quarantine”. It seems likely that the regulations rely on the distinction in s.45(5) between actually imposing quarantine and enabling a decision which imposes quarantine – the regulations allow quarantine to be imposed and do not directly impose it. On that basis the regulations give the power to quarantine in respect of coronavirus without individual applications having to be made to magistrates.
Let us all hope that we will not have to discover too much about how these regulations operate in practice.