Related Sector: Investigations, Covert, Intel & Specialist, Health & Social Care, Emergency Planning

Following a ‘spike’ in the number of people contracting coronavirus in Leicester a Statutory Instrument came into force on 4/7/2020 which ensures that the local lockdown in Leicester can be effectively enforced by law.

Where a person or groups of people might be at risk of spreading the virus then the Public Health (Control of Diseases) Act 1984 (as amended) and  Health Protection Regulations 2010 can be used to ensure identification, screening and isolation of those people. As COVID-19 is considered a serious and imminent risk to public health the Secretary of State has issued emergency regulations that provide further powers to limit onward transmission of the virus.

The Public Health (Control of Diseases) Act 1984 contains authority for regulations to be created. Section 13 of the 1984 Act gives the Secretary of State for Health the authority to create regulations to control diseases in England and Wales through a statutory instrument approved by Parliament. These regulations take time to complete the parliamentary process, so in urgent cases section 45R of Part 2A of the 1984 Act allows the Secretary of State to issue regulations controlling a disease without a draft being laid before parliament. Emergency regulations will have immediate effect but will cease after 28 days unless approved by parliament in the meantime.

For Leicester the SI titled The Health Protection (Coronavirus Restrictions) (Leicester) Regulations 2020 – No 685  was created  pursuant to s.45R of the Public Health (Control of Disease) Act 1984 with a review date of 18/7/2020. The provisions will enable police, local authorities & others to restrict movement in the area with the powers to issue fixed penalties from £100 - £3200 against businesses or individuals.

The questions being asked by many……where next  & how ?

If there are further localised spikes will central government, via the Secretary of State, use statutory instruments to contain them  or will local authorities be responsible for imposing local lockdowns under the Public Health Act 1984 & the Health Protection Regulations 2010?

The lockdown in Leicester is quite unique on its facts in that the Government, despite relaxing considerably the lockdown restrictions throughout England on 4/7/2020,  made the decision to extend the previous restrictions in Leicester beyond that date. As the restrictions had been originally imposed by the Government by way of SI’s in March 2020,  it fell to the central Government as a public body to lawfully extend the lockdown period for Leicester. In addition, the local authorities in & around Leicester felt the disclosure of data was incorrect/incomplete & they were not made privy to all of the information supplied to central government. From press reports, there was also some concerns expressed that if the entire responsibility fell directly to the local authority it might raise tensions in the area alongside overloading the local authority with the entire responsibility of policing the lockdown.

The way forward

If most or all of the ‘lockdown’ restrictions are lifted & the transmission or infection levels for the coronavirus ‘spike’ in different areas locally there are 3 possible options under the Public Health Act which would enable emergency powers to be used  with the aim to contain & control those spikes so long as it is established that there is ‘significant harm to human health’:

  • A minister, such as the Secretary of State, introducing measures by way of SI similar to , & possibly identical to, that in place for Leicester. This route enables swift, flexible & far reaching measures to be implemented in a very short time frame.
  • Health Protection (Local Authority Powers) Regulations 2010 & Health Protection (Local Authority Powers) (Wales) Regulations 2010,via the powers and duties of local authorities in relation to protecting the public from infection or contamination, although these powers are limited & are largely dependant upon co-operation. Local authorities are able to request or require action to be taken to prevent, protect against or control a significant risk to human health.  A request only allows the local authority to ask a person to comply. If the person refuses, the local authority must go to court to seek an order for enforcement.
  •  Health Protection (Part 2A Orders) Regulations 2010 & Health Protection (Part 2A Orders) (Wales) Regulations 2010 allow local authorities to obtain an order (Part 2A Order) from a Magistrates Court that could impose restrictions or requirements to protect the health of the public. The 1984 Act gives powers to Magistrates to make orders requiring action to protect human health from disease and contamination. These regulations allow a local authority to apply to a magistrate court for an order imposing restrictions or requirements on:

> A person,
> A thing,
> A body,
> Human remains, or
> A premises.

Whilst the powers are quite flexible and allow magistrates to make decisions that are relevant to each case in can be quite a cumbersome process. Where a magistrate is satisfied that the criteria are met, they can issue an order to protect against infection or contamination that presents a risk of significant harm to human health.

Other remedies

In order to protect the public against public health risks arising from COVID-19 the Secretary of  State for Health and Social Car introduction the Health Protection (Coronavirus) Regulations 2020 in England. The 2020 regulations create additional powers to control people who may have coronavirus whilst the Secretary of State maintains that its transmission is a serious and imminent threat to public health.

Alternatively, the Government could grant greater powers to local authorities under the Public Health Act & Health Protection Regulations so that they can act more swiftly & effectively to safeguard their local communities.

It will be interesting to see which options are pursued & by whom as we move through the next phase of the pandemic with potential local spikes reappearing .

Francesca Burfield, Barrister and Bond Solon Trainer

This article was first published on the 8th July 2020.

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