Article
An employer’s guide to navigating COVID-19 workforce issues in key jurisdictions in Europe By Philip Henson
Q&A
– Emergency Legislation expected in England Coronvirus (COVID-19).
A: UK moves from “contain” to “delay” phase The Government has announced that the UK is moving from the “contain” phase to using new tactics to “delay” the spread of the coronavirus (COVID-19). The UK’s Chief Medical Officer has now raised the risk to the UK from “moderate” to “high”. As such, changes to existing legislation or implementing new emergency legislation – both referred to in this note – are inevitable. What emergency legislation can we expect? The Press has speculated that the UK Government will soon introduce emergency legislation to allow for the compulsory isolation of individuals including those over 70 years old; the detention and quarantine of infected people; the prohibition of mass gatherings. The Government will also have the power to shut pubs, bars, cinemas, restaurants and nightclubs etc., and the Police will be able to hand out hefty fines to those who contravene these restrictions. Further details were announced by Prime Minister, Boris Johnson, in a press conference following the COBRA meeting on 16 March 2020, in which he announced new measures which are currently advisory. However, it is widely anticipated that the new measures will, eventually, become compulsory, as they are underpinned by legislation. In this summary Q & A document we consider the little known regulations which are already in place, and review how their use may be rolled out, and some of the other legislative powers which the Government may consider using, and/or modifying. The Health Protection (Coronavirus) Regulations 2020 With little fanfare the Government introduced the Health Protection (Coronavirus) Regulations 2020 (the Regulations) at 6.50am on 10 February 2020. They came into force immediately after they were made. The regulations apply to England only. The Regulations were made without a draft having been laid and approved by a resolution of each House of Parliament to enable emergency public health measures to be taken to quickly respond to the threat to human health from the new strain of Wuhan novel coronavirus (2019- nCoV) “and to reduce the risk of it becoming more widespread in the community”. What is the legal basis for introducing the Regulations? The Regulations were made under the emergency procedure set out in section 45R of the Public Health (Control of Disease) Act 1984. Part 2A of that Act, provides a legal basis to protect the public from threats arising from infectious disease or contamination from chemicals or radiation, and includes powers to impose restrictions or requirements on people, and in relation to things and premises, for use in rare circumstances where voluntary cooperation cannot be obtained [our highlighting].
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What is the purpose of the Regulations? Lord Bethell, from the Grand Committee of the House of Lords, explained on 9 March 20201, that: “The regulations provide the power to screen, isolate and detain those at risk of spreading Covid-19 and, if necessary, to keep them isolated for a period of time. The powers are proportionate – they include a number of important safeguards to ensure that all actions are proportionate. Importantly, the regulations apply only in respect of Covid-19 and have a sunset period of two years from the date of coming into force. There is a right of appeal to the magistrates’ court against the imposition of a restriction on an individual and group of people believed to have been infected and to be at risk of infecting others. Any detention lasting more than 14 days can be reviewed “as soon as practicable” by the Secretary of State”. How can those Regulations be made without Government Scrutiny? Section 45B of the 1984 Act enables the appropriate Minister (defined in section 45T as the Secretary of State for England) to make regulations for preventing danger to public health from conveyances including planes, trains and automobiles, (or the persons or articles on those conveyances) arriving at any place or for preventing the spread of infection or contamination by conveyances leaving any place. It also provides a power for regulations to give effect to international agreements or arrangements, for example World Health Organisation (WHO) recommendations. Section 45C of the 1984 Act provides a power for the appropriate Minister to make regulations to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination in England and Wales [our highlighting]. The Regulations were made under section 45B and 45C to enable a number of public health measures to be taken for the purpose of reducing the public health risks arising from the virus known as Wuhan novel coronavirus (2019-nCoV) (“Coronavirus”). As explained in the accompanying explanatory memorandum, the statutory instrument would: “enable the imposition of proportionate restrictions (which may include screening, isolation and other appropriate restrictions) on individuals where the SSHSC or a registered public health consultant have reasonable grounds to suspect that the individual is, or may be, contaminated with the Coronavirus. The regulations provide for a police constable to detain an individual and enforce those restrictions as required”. There is also a provision for police constables to: “detain individuals where they have reasonable grounds to believe an individual is, or may be, infected or contaminated with Coronavirus and are posing a risk to others. The constable is then obliged to have due regard to Public Health England guidance and consult a registered public health consultant in the exercise of their powers”.
