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Upon emergency coercive powers in the Coronavirus crisis

Health Protection (Coronavirus) Regulations 2020. These will be revoked by the Coronavirus Bill when it becomes law but remains in force until then.

Health Protection (Coronavirus) Regulations 2020

Summary

These will be revoked by the Coronavirus Bill when it becomes law but remains in force until then. The Secretary of State and medical consultants have powers to screen, detain, isolate and place restrictions of movement following release on infected persons where it is necessary and proportionate to prevent further infection. Local authorities have similar and wider powers on application to a Justice of the Peace under the Public Health (Control of Diseases) Act 1984. The Secretary of State and consultants may also apply to a justice under the same Act.  The Regulations are subject to appeal to the Magistrates Court but can be enforced by a constable using reasonable force.

The Regulations give sweeping powers of detention screening and isolation if a national Coronavirus emergency is declared. Regulation 3 provides that the Regulations apply where the Secretary of State makes a declaration on www.gov.uk that the incidence or transmission of Coronavirus constitutes a serious and imminent threat to public health and that the incidence of Coronavirus is at such a point that the measures outlined in these Regulations may reasonably be considered as an effective means of preventing the further transmission of Coronavirus. The declaration was made on 10th February so the powers below are in force.

The powers are:-

Screening -  Regulation 4 enables a person to be detained by order of the Secretary of State or registered public health consultant (a consultant) for screening purposes for a period of the later of 48 hours or the time needed for the screening where a) there are reasonable grounds for believing they have the virus and there’s a risk of further infection; or b) they have arrived in the UK and been in an infected area within 14 days of their arrival.

Restrictions –  Regulation 5: following assessment the consultant or Secretary of State can impose restrictions necessary to reduce risk. This can be done orally or in writing.

Screening requirements – Regulation 6: the person must answer questions, produce documents and provide samples in the screening

Further restrictions - Regulation 7: following assessment or release from detention or isolation under Regulation 8 the Secretary of State or consultant can impose necessary and proportionate requirements and restrictions to reduce the risk of infecting others. These can include contact details, supply of samples and restrictions in travel, activities and contact.

Isolation – Regulation 8: the Secretary of State can order the isolation of persons if grounds a and b in Regulation 4 are made out and there are reasonable grounds for believing that the person is infected and it is reasonable and proportionate to prevent further infection. A consultant can detain pending the decision of the Secretary of the State if they reasonably believe that the person is infected.

Welfare of those detained or in isolation - Regulation 9: detention or isolation must be reviewed by the Secretary of State after 14 days and every 24 hours thereafter.

Groups – Regulation 10: the powers available in regulations 4,5 and 6 can be applied to groups.

The power of Justice of Peace to make orders – Regulation 11: under S2A of the Public Health (Control of Diseases) Act 1984 a Justice can make orders on the application of a local authority in relation to persons, things, premises and groups. In regard to persons the powers are similar to those in the new regulations – powers to remove, detain, isolate and examine. Powers of seizure of items and closure of premises also exist.  The Regulations extend these powers by allowing the Secretary of State and consultants to make applications regarding persons only.

Appeal – Regulation 12: anyone affected by the regulations can appeal to the Magistrates Court.

Enforcement – Regulation 13: constables have powers of enforcement of regulations 4, 5 and 8. They can take the person to a suitable place for detention or isolation, keep them there and take them back if they abscond. They can use reasonable force to do so.

Coronavirus Bill

The Coronavirus Bill has just been published. It would be surprising if it receives extensive amendment in its passage through Parliament. We will send another update when it becomes law. Much of it is purely regulatory dealing with emergency regulations for registering medial staff and burials. Its provisions on coercive powers largely mirror the Regulations but extend them so they can be operated by more individuals. It also repeals and replaces them. The powers relating to potentially infectious persons appear in Schedule 20 of the Bill. Once again they become operative if the Secretary of State makes a declaration of imminent threat to public life and that the powers conferred by the Act would delay or prevent further significant transmission. The declaration made bringing the regulations into force on 10th February will serve to bring the powers under the Act into force. So, once passed, the powers will be in force.

Paragraph 6 – Power to remove for assessment or screening: a public health officer (a consultant or someone designated by the Secretary of State for the purposes of the Act), a constable or immigration officer can direct or remove a person for screening and assessment if they suspect that a person is ‘potentially infectious’ and it is necessary and proportionate in their interests, the protection of others and the maintenance of public health.

Paragraph 8 – Powers exercisable by a public health officer at a screening: a public health officer can require a person to remain at a suitable place for screening and assessment for 48 hours and require them to be screened and assessed.

Paragraph 13 – A constable or immigration officer may keep the person at a place for screening – for 24 hours in the case of the constable and 3 hours in the case of the immigration officer.  This may be extended for a further 24 hours if so authorised by a police superintendent or senior immigration officer.

Paragraph 14 – Powers after assessment: if the person is infected, the screening is inconclusive or there are reasonable grounds to suspect they are infectious, the public health officer can impose requirements and restrictions. These can include contact details, further screening and assessments, remaining at a given place for up to 14 days, remaining at a given place in isolation for up to 14 days and restrictions in travel, activities and contact. It is an offence not to comply. If the public health official suspects, they are infected after the end of the 14 days it can be extended but must be reviewed every 24 hours. Where a person is required to remain at a given place a constable or public health official can remove or keep them there and a constable can return them if they abscond. A person subject to requirements and restrictions can appeal to the Magistrates Court.

Paragraph 23 – Offences: it is an offence to comply without reasonable excuse with an instruction, requirement or restriction given under the schedule. It is also an offence to abscond, knowingly provide false information or obstruct a person performing acts under the schedule.

Civil Contingencies Act 2004

Local authorities, the police and health bodies can all be subject to directions from the Government that they take acts to prevent, control or take other acts in the case of an emergency. It seems unlikely however that this will be invoked in the current crisis because of the comprehensive and specific directions given in the Bill.

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