Corona-vires: Has the Government exceeded its powers?

13 February 2020 by Jim Duffy

This Government’s key message has been its ability get things done, whether it be Brexit, HS2 or stopping the spread of Coronavirus.

Indeed, if the new high speed trains move as swiftly as the Health Secretary did on Monday, then they might break the sound barrier: the Health Protection (Coronavirus) Regulations 2020 were enacted at 6.50am on Monday and laid before Parliament by 2.30 that afternoon.  Their preamble states that

the Secretary of State is of the opinion that, by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament.

One can appreciate the desire to bypass the cumbersome mechanics of Parliament to save the country from a potentially deadly virus. But in the fullness of time, the resulting Regulations might well be held up as an excellent advertisement for Parliamentary scrutiny.

The enabling Act

Secondary (or subordinate) legislation – such as regulations – is made by the executive under powers granted by ‘enabling’ primary legislation.

The enabling legislation cited in these Regulations is the Public Health (Control of Disease) Act 1984. And its use in this case might be said to be straight out of 1984. 

The Coronavirus Regulations apply where the Secretary of State has issued a “serious and imminent threat declaration”, which he also managed to do on Monday.  They extend to England only.

The Regulations purport to derive their basis in law from specific sections of the 1984 Act: sections 45B, C, F and P. The first two of those sections merit a closer look.

Section 45B is entitled “Health Protection Regulations: international travel etc.” It provides that the appropriate minister may by regulations make provision:

a. for preventing danger to public health from vessels, aircraft, trains or other conveyances arriving at any place,

b. for preventing the spread of infection or contamination by means of any vessel, aircraft, train or other conveyance leaving any place, and

c. for giving effect to any international agreement or arrangement relating to the spread of infection or contamination.

Among the non-exhaustive list of measures envisaged by sub-section 1 are provisions “for the medical examination, detention, isolation or quarantine of persons.”  So in the context of “international travel etc.”, those coercive powers can clearly be the subject of Regulations.

Section 45C deals with a separate context – it is entitled “Health protection regulations: domestic”. Section 45C(1) provides:

The appropriate Minister may by regulations make provision for the purpose of preventing against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere). 

This would plainly encompass controlling the spread in England of a Coronavirus originating elsewhere.

This section has its own non-exhaustive list, which contains apparently less coercive measures than the international travel section does. The 45C list includes requiring medical practitioners to record and notify cases or suspected cases of infection or contamination, and keeping children away from school.

Section 45C(4) provides that the restrictions or requirements envisaged can include “a special restriction or requirement”. This is defined as a restriction or requirement which can be imposed by a justice of the peace under various provisions, including section 45G(2).  These, in turn, include detention, isolation and quarantine, as a footnote to the 2020 Regulations points out.

However, the power to make regulations under section 45C(1) is subject to section 45D. Not only does section 45C not expressly contain any power of detention, isolation or quarantine, section 45D(3) states that Regulations under section 45C “may not include provision imposing a special restriction or requirement mentioned in section 45G(2)(a), (b), (c) or (d).”  Section 45G(2)(c) refers to a restriction or requirement “that P be detained in a hospital or other suitable establishment”, and 45G(2)(d) refers to a restriction or requirement “that P be kept in isolation or quarantine”.

So that is what the primary legislation says.  In summary, it makes clear that in the domestic context of disease control (as opposed to the international travel context) there is no power to make regulations imposing detention, isolation or quarantine on any person.

The Coronavirus Regulations

The secondary legislation provides at Regulation 4 that the Secretary of State or a registered public health consultant (i.e. a professionally registered public health consultant working within public health England) may, for the purposes of screening, assessment and the imposition of any restrictions or requirements under Regulation 5 impose on a person a requirement to be detained for 48 hours, or as long as it takes for any screening requirements and the assessment under Regulation 5 to be complied with.  So this initial detention for screening purpose might be 48 hours, but it could be longer.

While the emergency Regulations have been described by Government as designed “to make it easier for health professionals to do their jobs”, it could be Matt Hancock making the diagnosis as to whether detention is required.  Indeed, under the Regulations there is no reason in principle why a person could not be detained in circumstances where health professionals determined that the test for detention was not met, but where a Minister disagreed with that expert medical assessment.

Detention is subject to the existence of one of two conditions – A or B:

• Condition A is that the Secretary of State or the registered public health consultant has reasonable grounds to believe that the person is, or may be, infected or contaminated with Coronavirus and considers that there is a risk that they might infect or contaminate others.  There is no reference to them having recently travelled to England. This appears, therefore, to fall within the ‘domestic’ section of the 1984 Act – section 45C.

• Condition B is linked to travel, and therefore appears to fall within section 45B of the Act: the person has arrived in England on an aircraft, ship or train from outside the UK (including via one of the other countries in the UK) and has left or the Secretary of State/public health consultant has reasonable grounds to believe has left an infected area within 14 days of their arrival in England.

If Condition A or B is satisfied then this entitles the Secretary of State or the consultant to impose more screening requirements or carry out an assessment of the person: Regulation 5(1)(a) and (b).

However, the existence of one of those conditions also engages an extraordinarily wide power, because the Secretary of State/the consultant may

following such an assessment, (orally or in writing) impose on or in relation to P [the person] any other restriction or requirement which the Secretary of State or, as the case may be, a registered public health consultant considers necessary for the purposes of removing or reducing the risk [of onward infection/contamination], including a special restriction or requirement.

A “special restriction or requirement” is defined as including one contained in section 45G(2) of the 1984 Act and which can be imposed by a justice of the peace, including detention or isolation. This might appear to be in direct conflict with the enabling legislation, although as David Lawson points out, the Regulations probably rely on the distinction in section 45D(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.” 

Another far-reaching power is found at Regulation 7: where Condition A or B is met, further requirements may be imposed where considered necessary or proportionate. Some of those measures are fairly innocuous, for example, providing contact details to a public health officer. But they also include a requirement to “comply with any other specified condition or to take any other specified measure”.

Isolation is addressed separately at Regulation 8. Again, where Condition A or Condition B is satisfied, the Secretary of State or a public health consultant may require P to be kept in isolation where they have reasonable grounds to believe that P is or may be infected or contaminated with Coronavirus, and considers that it is necessary and proportionate to isolate them in order to reduce or remove the infection/contamination risk. P is provided with the vague reassurance that “the Secretary of State must have due regard to P’s well-being.”

There are further powers for police officers (Regulation 14), including to send and keep people in hospital “or other suitable place” (not defined). Here, neither condition A or B needs to be satisfied. It is enough that the constable has reasonable grounds to suspect that P “is, or may be, infected with Coronavirus… there is a risk that P might infect or contaminate others” and “it is necessary to direct, remove or detain P in the interests of P, for the protection of other persons or for the maintenance of public safety.”

Again, these police powers – insofar as they apply outside the international travel context – appear to involve the exercise of powers envisaged under section 45G(2)(a) to (d), which are expressly excluded from the requirements that regulations can directly impose in the domestic context, and so the Government would presumably rely again on the distinction between imposing a requirement and enabling someone else to impose it.

Conclusions

One would expect that case-by-case detentions or isolations might generate judicial review challenges as to their proportionality. And Regulation 5(4) appears to envisage the detention of children, which could present its own issues in individual cases.

There might also be a difficulty in the Secretary of State’s adoption of two apparently contradictory positions when enacting the Regulations. On the one hand, he issued a notice that

the incidence or transmission of Coronavirus constitutes a serious and imminent threat to public health, and that the incidence or transmission 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, significant transmission of Coronavirus.

This form of words was necessary in order to enable the imposition of special restrictions or requirements: section 45D(4)(a), 1984 Act.

Yet on the same day he announced that:

Clinical advice has not changed about the risk to the public, which remains moderate. We are taking a belt and braces approach to all necessary precautions to ensure public safety.

Can the threat to public health be serious, imminent and moderate all at the same time? That dichotomy could raise questions as to whether the exercise of powers of isolation and detention are rational.  “Belt and braces” is hard to square with the language of reasonable necessity adopted by the courts when assessing proportionality. Section 45D(4) places restrictions on the power to make regulations under section 45C: “Regulations under section 45C may not include provision enabling the imposition of a special restriction or requirement unless (a) the regulations are made in response to a serious and imminent threat to public health, or (b) the imposition of the restriction or requirement is expressed to be contingent on there being such a threat ay the time when it is imposed.” 

These Regulations are effective now not only despite the Secretary of State describing the risk as moderate, but also despite the UK Chief Medical Officers agreeing with that assessment and adding “But the risk to individuals remains low.”

And the language used in introducing these measures suggests a relaxed approach to legality: the Department of Health described the announcement of “serious and imminent threat” as “a legal term … as part of changes to make it easier for health professionals to do their job.”  This might suggest that the reference to a “serious and imminent threat to public health” is little more than an artificial work-around.

Why get hung up on the legal niceties?

Well, aside from the importance of the Rule of Law, there is a practical consequence of subordinate legislation being ultra vires: as Lord Irvine explained in Boddington v British Transport Police [1999] 2 AC 143 at 158, it means that the legislation “is unlawful simpliciter and, if the presumption in favour of its legality is overcome by a litigant before a court of competent jurisdiction, is of no legal effect whatsoever”.

Jim Duffy is a barrister at 1 Crown Office Row.  

This post was amended on 14 February 2020 to incorporate the distinction between imposing a special requirement and enabling the imposition of one. My thanks to David  Lawson on that point.