The legal basis for lockdown
We face a national emergency therefore, and the government is now seeking to delay the inevitable spread of the infection. Key to delivering that delay is the so-called lock-down that was announced by the Prime Minister on 23 March, the government having decided that its policy of attempting to persuade people to avoid unnecessary behaviours or situations in which the virus could spread was no longer sufficient. In an earlier blog, I considered the legal basis for the lockdown at that time. Here, I examine the powers the government has taken to control the actions of infected, or potentially infected, people.
The government’s first test here came in February. Readers will recall how late in January and early in February this year British citizens were repatriated from Wuhan in China as the epidemic peaked there. On their arrival in the United Kingdom, the government arranged immediately to transport them to secure locations where they could be quarantined for the full fourteen day period considered necessary to protect against the risk of any onward infection. At that time it had no legal basis to enforce this period of quarantine, and it initially proposed simply to rely on signed consents as the legal basis for accommodating all the passengers in the isolation facilities provided. But consent can be withdrawn and, amid press reports of a repatriated person deciding they wanted to leave a quarantine facility early, the government urgently needed to create a legal basis for requiring the passengers to complete their period of quarantine.
It turned to the Public Health (Control of Disease) Act 1984 as the source of powers it needed, and at 6.50am on Friday 10 February 2020 the Secretary of State for Health and Social Care invoked a procedure for legislating in urgent cases to sign into law the Health Protection (Coronavirus) Regulations 2020. The Regulations applied to two categories of case: first, those cases involving people whom the Secretary of State or a registered public health consultant have reasonable grounds to believe are or may be contaminated with coronavirus provided they also consider that there is a risk that these people might infect or contaminate others (domestic cases); second, those cases concerning people who have arrived in England on an aircraft, ship or train from outside the United Kingdom and who the Secretary of State or a registered public health consultant have reasonable grounds to believe left an infected area within 14 days immediately preceding their arrival in England (overseas cases). On the day the Regulations were made the Secretary of State designated Wuhan and Hubei Province in China infected areas, with the result that this second ground could now apply to all the repatriated British citizens.
The Regulations provided that people in both categories of case could be detained by the Secretary of State or a registered public health consultant for the purposes of screening them in order to inform an assessment of whether they present or could present a risk of infecting or contaminating others, and thereafter they could be made subject to restrictions and requirements, including detention (in isolation or otherwise), where those restrictions or requirements are considered necessary for the purposes of removing or reducing the risk of onward infection or contamination. Plainly the power of detention was dependent on the assessment that the person concerned presents a risk of infection or contamination and, where that period exceeds 14 days, it is subject to daily review by the Secretary of State.
The Regulations recorded that they were made in the exercise of powers conferred by sections 45B, 45C, 45F and 45P of the Public Health (Control of Disease) Act 1984. Section 45B is entitled “Health protection regulations: international travel". It empowers a minister to make provision by regulation for: preventing danger to public health from vessels, aircraft, trains and other conveyances arriving at any place; preventing the spread of infection or contamination by means of any vessel, aircraft, train other conveyance leaving any place; and for giving effect to any international agreement or arrangement relating to the spread of infection or contamination. The powers conferred by this section specifically include the power to make provision for the medical examination, detention, isolation or quarantine of persons.
The following section, 45C, is headed “Health protection regulations: domestic”. It empowers a minister by regulations to make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection in England and Wales. The powers conferred by this section do not specifically include the power to make provision for the medical examination, detention, isolation or quarantine of persons and the following section, 45D, provides in terms that that any regulations the minister may make in respect of domestic matters may not include provision for certain kinds of “special restriction or requirements”, namely those requiring people to submit to medical examination, be removed to hospital or other suitable establishment, be detained or be kept in isolation or quarantine. Rather, the Act provides, at section 45G, that the power to impose such restrictions or requirements is reserved to a justice of the peace (and only a justice of the peace), who may only make such an order if satisfied that: a person is or may be infected or contaminated; the infection or contamination is one which presents or could present significant harm to human health; there is a risk that the person might infect or contaminate others; and it is necessary to make the order in order to remove or reduce that risk.
It is easy to see how the Regulations under this Act were properly made in so far as they concerned an international case, but the same cannot be said for any power of requiring medical examination, removal to hospital, detention or isolation the Regulations purported to provide for in a domestic case. The point is academic now: none of the repatriated British citizens remains in quarantine, any repatriated British citizens who did not consent to their quarantine could be lawfully forced to submit to it on the basis that they were international travellers and, in any event, the Regulations have been repealed by the Coronavirus Bill which passed into law on 26 March as the Coronavirus Act. Perhaps tellingly, the Act provides for any continuing detention or other requirement or restriction to continue to have effect as if made under the new legislative scheme as opposed to permitting those measures to continue under the Regulation.
The new powers are contained in what is Schedule 21 of the Coronavirus Act. They apply to potentially infectious people, which means either a person who is or may be infected with coronavirus where there is a risk that the person concerned might infect or contaminate others, or simply a person who has come to the United Kingdom from an infected area in the previous 14 days. The Act empowers the Secretary of State to declare a “transmission control period” during which the various powers under the Act will have effect. The conditions for declaring a transmission control period are that the Secretary of State considers that the incidence or transmission of coronavirus constitute a serious and imminent threat to public health in England (equivalent provision apply to other parts of the United Kingdom), and the powers contained in the legislation will be an effective means of delaying or preventing significant further transmission of coronavirus here.
The Act provides for a two stage process broadly similar to that contained in the Regulations it revokes. In the first instance where a public health officer has reasonable grounds to suspect that a person is potentially infectious, he or she may direct them to go to a suitable place for screening and assessment. If necessary, they may remove the person to that place themselves or call on the assistance of a constable. The power can only be exercised if the public health officer considers it to be necessary and proportionate in the interests of the person concerned, for the protection of other people or for the maintenance of public health. Police officers and immigration officers have equivalent powers.
Potentially infected people can be detained for up to 48 hours for the purposes of screening and assessment, with the assistance of a constable if necessary. During that time, they can be required to provide a biological sample or allow one to be taken from them by a healthcare professional, answer questions and provide information about their health and other relevant matters.
The second stage concerns the position after the assessment has taken place. In cases where the screening is either inconclusive or confirms that the person is infectious or, following an assessment, a public health officer has reasonable grounds to suspect a person is potentially infectious, the public health officer may impose further restrictions or requirements on them. As with the screening and assessment stage, such powers cannot be exercised unless the public health officer considers it to be necessary and proportionate in the interests of the person concerned, for the protection of other people or for the maintenance of public health.
The list of possible requirements is open-ended and specifically includes requirements to remain at a specified place for a specified period and to remain at a specified place in isolation from others for a specified period. That specified period may initially not exceed 14 days and is subject to a requirement of re-assessment after 48 hours. However, if before the specified period of detention has expired a public health officer reasonably suspects the detained person will be potentially infectious at the end of it, that period can be extended. Where a person is not in isolation, that extension can be for up to a further 14 days. Where a person is in isolation, there is no such limit although there is a requirement that a public health officer must review their case at least once every 24 hours. In any case in which a person is made subject to restrictions or requirements after screening and assessment they may appeal against them to a magistrates’ court.
The legislative scheme is underpinned by the criminal law. It is a crime: to fail without excuse to comply with any direction, reasonable instruction, restriction or requirement (including where those requirements are made in respect of children for whom the individual is responsible); to abscond or attempt to abscond from a place at which they are lawfully detained; knowingly or recklessly to provide misleading information; or to obstruct a person exercising powers under this part of the statute. All such crimes are punishable by a fine of up to £1,000. We should all hope that these powers do not need to be invoked.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
Alun is a partner in the criminal litigation team and specialises in serious or complex financial crime, proceeds of crime litigation and corporate investigations. He has particular knowledge and experience of issues surrounding corporate crime and deferred prosecution agreements.
Skip to content Home About Us Insights Services Contact Accessibility