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Clause 51 and Schedule 21 of the Coronavirus Bill propose a range of potentially far reaching powers to compel the testing and confinement of “potentially infectious persons”. This blog post discusses the scheme set out in Schedule 21, insofar as it applies in England (Part 2 of Schedule 21), and considers some of the issues that it raises. Similar provisions exist for Scotland (Part 3), Wales (Part 4) and Northern Ireland (Part 5). These are some of the most far reaching proposals in the Bill with major implications for civil liberties which would be unthinkable outside of a major crisis. As a sign of the extraordinary circumstances in which these far reaching powers are being enacted, this blog had to be updated after it was written to accommodate the amendments made before introduction of the bill to the House of Lords, including that the powers are now located in Schedule 21 rather than Schedule 20. The latest version of the Bill as at 24 March 2020 is available here. Who is subject to the exercise of the Schedule 21 powers? The powers in Schedule 21 relate to “potentially infectious persons.” A person is “potentially infectious” if they are or may be infected or contaminated with coronavirus and there is a risk that they might infect or contaminate others, or “the person has been in an infected area within the 14 days preceding that time.” An “infected area” is further defined in paragraph 2(2). Given the rate at which coronavirus is spreading, the lack of widespread testing, and the absence of any reliable method other than testing for determining whether a person “may be” infected, the reach of the definition is very broad. When do the powers apply? The Schedule 21 powers apply during a “transmission control period” as defined in paragraph 4. A transmission control period begins when a declaration of risk is made under paragraph 4(1) and ends when the declaration is revoked. Importantly, the Health Protection (Coronavirus) Regulations 2020 (“2020 Regs”), which will be revoked when the Bill becomes law, made provision in Regulation 3 for a declaration in like terms, and a declaration was made on 10 February 2020. Clause 24(3) provides that the declaration made on 10 February 2020 “is to be regarded as a declaration made by the Secretary of State under paragraph 4 of this Schedule.” Assuming Clause 24(3) is passed in the form proposed, the powers will exist immediately upon the Coronavirus Act coming into force. Public health officers Many of the powers in Schedule 21 are to be exercised by “public health officers” (PHOs). A PHO is any officer of the Secretary of State designated as such by the Secretary of State. The Secretary of State will therefore have a broad discretion to grant Schedule 21 powers to his officials. What powers exist Schedule 21provides for three sets of powers: (a) Powers to compel attendance at a place suitable for screening and assessment (b) Powers to compel cooperation with screening and assessment, and (c) Powers to impose requirements and restrictions following assessment. Powers to compel attendance at or remove to a place suitable for screening and assessment (paragraphs 6 and 7) Where a PHO, immigration officer or constable has reasonable grounds to “suspect” that a person is potentially infectious they may direct the person to go immediately to a place which is suitable for screening and assessment, remove the person to such a place or, in the case of a PHO, request that a constable remove the person to such a place. The power may only be exercised where the person exercising it considers its use to be necessary and proportionate in the interests of the person, for the protection of other people, or for the maintenance of public health. Where these powers are used the PHO must “inform” the person of the reasons and that non-compliance is an offence. If the power is to be exercised by an immigration officer or a constable he or she must first consult a PHO “to the extent that it is practicable to do so.” Powers to compel cooperation with screening and assessment (paragraphs 9 to 13) Schedule 21 creates a range of powers directed to compulsory screening or assessment of a person for coronavirus infection. The powers arise where a PHO has reasonable grounds to suspect that the person is potentially infectious. They may only be exercised where the PHO considers their use to be necessary and proportionate in the interests of the person, for the protection of other people, or for the maintenance of public health. A person can be required to remain at the screening and testing place for up to 48 hours. A PHO may require a person present at a screening and assessment place to be screened and assessed. A person may be compelled to provide a biological sample / permit a sample to be taken and to answer questions about their health or other relevant matters (including travel history and personal contacts), produce relevant documents, and provide future contact details. There is a power to require that a person be moved to a different screening and assessment place, upon which the 48-hour time limit re-starts. Constables and immigration officers may keep a person at a screening and assessment place for stipulated periods (24 hours and 3 hours, respectively, extendable by a further 24 hours or 9 hours) until such time as a PHO can exercise the relevant screening and assessment powers. This power may only be exercised insofar as the constable or immigration officer considers it is necessary and proportionate in the interests of the person, for the protection of other people, or for the maintenance of public health. A person must be informed of the reasons for the exercise of any powers under paragraphs 9, 11 and 13, of the fact that non-compliance is a criminal offence, and of the maximum period for which they may be held. Powers to impose requirements and restrictions following assessment (paragraphs 14 to 17) Where screening has confirmed that a person is “infected or contaminated with coronavirus”, screening was inconclusive, or a person has been “assessed” by a PHO and the officer has reasonable grounds to suspect that the person is potentially infectious, then a PHO may impose “such requirements and restrictions on the person as the officer considers necessary and proportionate” in the interests of the person, for the protection of other people, or for the maintenance of public health (paragraph 14(2)). These may include, but are not limited to, requirements to provide information, provide contact details, undertake further screening, “remain at a specified place… for a specified period” (paragraph 14(3)(d)) and “remain at a specified place in isolation from others for a specified period” (paragraph 14(3)(e)). They may also include restrictions as to movements or travel, activities (including work or business activities) and contact with other persons or with other specified persons. Paragraphs 14(3)(d) and (e) are, in effect, powers to deprive people of their liberty. In exercising these powers, the PHO “must have regard to a person’s wellbeing and personal circumstances.” A person must be informed of the reasons for the imposition of a requirement or restriction and that non-compliance is a criminal offence. Neither a requirement imposed under 14(3)(d) or (e), nor any restriction imposed under paragraph 14 can be imposed for longer than 14 days in the first instance, extendable by a further 14 days, save in the case of a requirement under paragraph 14(3)(e) to remain at a specified place in isolation from others, which can, prima facie, be extended indefinitely (see paragraph 15(6)). Once extended, a requirement or restriction must be reviewed every 24 hours. At time of writing, there is no proposal for automatic external review by a court in any case. Paragraph 17 provides for a right of appeal to the Magistrates’ Court against any requirement or restriction imposed under paragraph 14, including against any variation or extension. Guidance There is a requirement to follow any “relevant guidance” that is in force (paragraph 21) but no requirement on the Secretary of State to promulgate guidance on the exercise of the Schedule 21 powers. Offences Paragraph 23 of Schedule 21 provides for the following offences punishable by a fine not exceeding level 3 on the standard scale: (a) failing without reasonable excuse to comply with any direction, reasonable instruction, requirement or restriction; (b) failing without reasonable excuse to comply with a duty under paragraph 18(1) or (2) (duties of individuals who have responsibility for a child); (c) absconding or attempting to abscond while being removed to or kept at a place under Schedule 21; (d) knowingly providing false or misleading information in response to a requirement to provide information under Schedule 21; or (e) obstructing a person who is exercising or attempting to exercise a power conferred by Schedule 21. Issues arising A number of points can be made about the new powers and the issues which are likely to arise from them. First, the powers can only be exercised at all for so long as a declaration is in force under paragraph 4. In principle such a declaration could itself be the subject of a claim for judicial review, and / or the legality of the declaration might be raised in legal proceedings relating to the legality of the exercise of the powers in any particular case. There is a strong argument that a successful challenge to such a declaration would render any exercise of the detention powers unlawful: see now DN (Rwanda) v SSHD [2020] UKSC 7. However, as already noted clause 24(3) gives effect to the declaration made under the 2020 Regs, and that would appear to have the force of statute so as to be beyond the reach of judicial review. So any challenge to the paragraph 4 declaration will have to await a future exercise of the power and / or any review. Secondly, the powers are very broad indeed, having regard to the basic prerequisite for exercise of the power. That is the combined effect of the definition of “potentially infectious” in paragraph 2, which requires only that a person “may be” infected and that there is a “risk” that they might infect another, with the wording of the specific powers. In each case the power to remove a person for screening (paragraphs 6 and 7), to remain at the screening centre for assessment (paragraph 8), to remain in a place directed for 14 days (paragraph 14), and even to remain beyond 14 days (paragraph 15) is exercise on mere “suspicion” that the person is “potentially infectious”. So the upshot is that each of these increasingly draconian powers may be exercised on the basis that there is a “suspicion” that the person “may” be infected themselves, and (if so) that there is a risk that they may infect others. Given the seriousness of the threat posed by coronavirus, it is of course understandable that the powers are widely drawn. It does however seem surprising at first blush that the same prerequisite, “suspicion”, is used for the initial requirement to go for screening under paragraphs 6 and 7, as is used for the exercise of the power to detain a person even beyond 14 days under paragraph 15. By the time this power is exercised the person will by definition not have been to an infected area outside the UK within 14 days (see the definition in paragraph 2/(1)(b)), and any “assessment” under paragraph will also have taken place 14 days ago. One can understand the desire to cater for situations where testing remains inconclusive or has proved impossible for logistical reasons, but this does cast the net very wide indeed. Thirdly, it is unclear how it is intended that the powers should be exercised in relation to a person who indicates a willingness to submit for testing, or remain at home and / or in isolation, without any need for compulsion. Arguably the powers should not be used at all in such a case, but there is no limitation in this regard on the face of the statute and the government may argue that the powers are necessary to ensure compliance even in the face of apparent submission. On the other hand, given that many tens, hundreds of thousands or even millions of people will be “potentially infectious” at some point in the coming months, it is unclear where the dividing line should be drawn. Presumably, it is not proposed to utilise the powers for everyone who is potentially infectious notwithstanding their willingness to remain in hospital or at home. Fourthly, and related to this, at least in relation to the longer-term powers, it is unclear how in practice the power will be used. The power under paragraph 14(3) includes a power to direct that a person remain in a “specified place”, and / or “in isolation” in such a place. That may be an assessment centre, or a hospital, but it is not limited to this, and there would appear to be “bed space” problems if persons are held in hospitals and assessment centres for long periods though their condition is not severe. Two alternatives might be the use of more traditional holding centres, such as immigration detention facilities vacated by immigration detainees who cannot be removed from the UK during the crisis, and (at the opposite end of the spectrum) some form of home curfew. Fifthly, it seems clear that in most or all cases the exercises of these powers will amount to a deprivation of liberty sufficient to engage both the common law and Article 5 ECHR. Even a home curfew will amount to a deprivation of liberty under the common law sufficient to require lawful justification under the tort of false imprisonment (see R (Jalloh) v SSHD [2020] UKSC 4). A sufficiently time limited (in terms of hours) curfew might not engage Article 5 (see SSHD v JJ [2008] AC 385), but that seems irrelevant here since the whole purpose of the powers is to prevent a person infecting others, so e.g. an 8 hour curfew is likely to be pointless. That does not mean that such detention will be necessarily unlawful (the new provisions will ordinarily in themselves provide the necessary lawful authority for the purposes of the common law, and Article 5(1)(e) permits the lawful detention of persons “for the prevention of the spreading of infections diseases”), but it does affect the way in which the courts will approach the construction of the statute and limits on the exercise of the power. It will also mean that damages will be potentially available where the power is exercised unlawfully. Sixthly, the courts will have to consider whether they are willing to develop implicit restrictions on the exercise of these powers by analogy with the Hardial Singh principles for immigration detention. Certainly powers of immigration detention would appear to be the most closely (though far from wholly) analogous powers to the present powers, being a purely executive power to deprive a person of liberty subject to relatively few constraints. The critical issue is whether the court will regard itself as the guardian of the reasonableness of the use of the powers, as it has done in immigration detention (see e.g. SSHD v A [2007] EWCA Civ 804), or whether it will confine itself to Wednesbury review. The point is not straightforward. On the one hand certain comments in A v SSHD would appear to mean the court must decide about liberty. On the other, the somewhat more structured and time limited nature of these powers as compared with immigration detention, and the express conferral of decision making about matters such as proportionality, may make the argument harder in this context. Finally, there is a question mark about the interrelationship between the right of appeal to the magistrates under paragraph 17 and the role of judicial review. On appeal the magistrates have power to confirm, vary or discharge the detention or other requirement that has been imposed, but they have no function to rule on the legality of the detention to that date nor to determine matters such as whether there has been a false imprisonment. So there is a powerful argument that the appeal does not create an alternative remedy which prevents judicial review (see R (Konan) v SSHD [2004] EWHC 22). But appeals would appear to be a more practical immediate route for challenging an exercise of these powers. It is unclear what fact-finding role the magistrates should have, e.g. to confine themselves to whether the statutory requirements have been met, or to deciding for themselves whether the power has been exercised proportionately. The effectiveness of any access to the court will depend on the extent to which the courts are able to set up operational arrangements for remote access. At the time of writing we appear to be moving towards a default system of remote video and audio hearings (as to which there are provisions elsewhere in the Bill), and guidance issued late on 23 March indicates that advocates should not physically attend civil and family courts. The situation for Magistrates’ Courts remains unclear. Whether any of these questions become more than theoretical will depend on the manner in which the powers are exercised by public health officers. But the extremely large numbers of people who are likely to be at least theoretically subject to the powers in the coming months means that there is at least some prospect of these issues becoming very important indeed. Tim Buley QC and Graham Denholm, Landmark Chambers, 24 March 2020
