We anticipate that with last night’s announcement we will see further amendments.
The provisions in Schedule 21 are unprecedented in our lifetime and will result in the largest scale interference with human rights since the Human Rights Act 1998 came into force. In order for such powers to be lawful and lawfully exercised, it is imperative that they are effective, necessary and proportionate as a mechanism for achieving the legitimate aim of preventing the spread of Coronavirus and mitigating the scale of the harm caused by the epidemic.
Schedule 21 overview
The aim of Schedule 21
The Schedule is designed to empower public health officers (with assistance from law enforcement) to impose testing and restrictions on the movement of “potentially infectious persons”.
Parts 2 to 5 of Schedule 21 confer powers on public health officers, constables and immigration officers in England, Wales, Scotland and Northern Ireland and make related provision.
Part 2 is concerned with England and will be the sole focus of the remainder of this article.
Who is a potentially infectious person?
A person is a potentially infectious person for purposes of Schedule 21 if, at any time, the person:
a) is, or may be, infected or contaminated with coronavirus, and there is a risk that the person might infect or contaminate others with coronavirus or
b) the person has been in an infected area within the 14 days preceding that time.
An infected area is any territory or country outside of the UK that the Secretary of State for Health (SoS) has declared as a country, territory or area:
a) Where there is a known (or thought to be) human to human transmission of coronavirus or
b) From which there is a high risk that coronavirus will be transmitted to the UK.
Any area already declared by the SoS under the 2020 Regulations is to be regarded as an infected area for the purposes of Schedule 21.
When do the powers in Schedule 21 come into play?
First, the Coronavirus Bill needs to be passed into law and then come into force. The SoS must then make a declaration (published online and in the London Gazette) that “the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health in England and the powers conferred by Part 2 will be an effective means of delaying or preventing significant further transmission of coronavirus in England” for the powers in Schedule 21 become live.
Since the declaration made by the Secretary of State on 10 February 2020 under the 2020 Regulations is to be regarded as such a declaration, this means that the powers in Schedule 21 will be effective as soon as the Bill is passed into law and comes into force.
When will the powers cease to apply?
The declaration remains until it is revoked by the SoS, who is required to revoke the declaration if at any point he considers the criteria set out above are no longer met. There are no limits on the number of declarations the SoS can make or revoke.
The period after the declaration has been made and before it has been revoked (so during which the powers are active) is defined for purposes of Part 2 as the “transmission control period”. This is the period during which the powers are in effect. At the end of the transmission control period, all powers cease to have effect immediately and any requirements or restrictions imposed by those exercising the powers also cease to have effect immediately.
Upon whom are the powers conferred?
In England, the powers are exercisable by:
- public health officers (being an officer designated by the SoS for any or all of the purposes of this Schedule or a registered public health consultant so designated)
- police constables
- immigration officers
The enforcement powers
Necessary and proportionate to achieve a legitimate aim: the “necessary and proportionate test”
Before exercising any of the powers contained in Schedule 21, the person exercising them must satisfy themselves that it is necessary and proportionate for them to do so:
- in the interests of the person
- for the protection of other people or
- for the maintenance of public health
We shall refer to this test, which applies to the exercise of all powers contained in Part 2 of Schedule 21, as the “necessary and proportionate test”. It is concerned with ensuring that interference with human rights (not least the rights to liberty and to a private and family life) is restricted to circumstances where it is necessary and proportionate to achieving the legitimate aim of preventing the spread of coronavirus and harm to others caused by the spread of coronavirus. This is necessary for the interference to be lawful.
Note that if exercising a power is necessary and proportionate to achieve any one of (a) to (c) above, then it is considered by those drafting the Bill as lawful. It remains to be seen whether this will be tested by human rights groups or those representing individuals.
Powers to direct or remove a person to a place suitable for screening and assessment (paragraphs 6 – 7)
These powers enable a person upon whom the powers at Schedule 21 are conferred to direct or forcibly remove potentially infected persons to a suitable place for screening and assessment (an “assessment centre”).
Where a public health officer, constable or immigration officer has “reasonable grounds” to suspect that a person in England is “potentially infectious”, then, subject to the necessary and proportionate test being satisfied, they may:
- direct the person to go immediately to a place specified in the direction which is suitable for screening and assessment or
- (in the event that the potentially infectious person cannot or will not go independently) remove the person to a place suitable for screening and assessment.
Constables and immigration officers must, before exercising powers to direct or remove, consult a public health officer to the extent that it is practicable to do so. A public health officer may request that a constable remove the potentially infected person rather than doing it themselves. If a person is resisting removal, then a constable will need to become involved, because only a constable has the right to use reasonable force to remove a person (see Ancillary Powers, below).
The choice of language here means the evidential threshold for mandated screening and assessment is set very low, presumably to minimise barriers and potential delays.
Requirement to give notice
Any person subject to direction or removal for assessment must be told of the reason for it and that it is an offence:
a) in a case where a person is directed, to fail without reasonable
excuse to comply with the direction or
b) in a case where a person is removed, to abscond
Although it is not expressly stated, we strongly recommend that reasons are provided at the same time as the decision is communicated.
Powers exercisable at a screening and assessment place (paragraphs 9 - 13)
These powers apply when a person is at a place in England suitable for screening and assessment (howsoever they came to be there) and a public health officer, constable or immigration officer has reasonable grounds to suspect that the person is potentially infectious.
Before exercising any of the powers contained in paras 9 - 13 the person exercising the powers must apply the necessary and proportionate test in respect of that particular power.
The powers exercisable at screening and assessment are as follows:
1. Powers exercisable by a public health officer
By paragraph 9, a public health officer may require the potentially infected person remain at the assessment centre for screening and assessment purposes for a period not exceeding 48 hours, but in order to do so the officer must have notified the person:
a) of the reason for imposing the requirement
b) of the maximum period the person may be required to remain there and
c) that it is an offence to fail to comply with the requirement
By paragraph 11, an officer may direct or arrange for the removal of the potentially infected person to an alternative place for screening and assessment (subject to notice, with reasons).
Paragraph 10 provides for testing in order to establish if a person is infected with coronavirus and assessment to determine whether further measures are appropriate to mitigate the risk of that person infecting others. By paragraph 10, the officer can require the potentially infected person:
a) be screened and assessed and
b) impose other requirements on the person in connection with their screening and assessment
“Screening” is defined for Schedule 21 purposes as meaning:
- assessing the extent to which a person has been exposed to coronavirus
- determining whether the person is infected or contaminated with coronavirus and
- assessing the person’s symptoms and state of health
“Assessment” is defined as meaning:
“the assessment of the measures that it would be appropriate to take in relation to the person (under this Schedule or otherwise) to mitigate the risk that the person might infect or contaminate others with coronavirus”
The officer has broad discretion as to what is required and Schedule 21 requires that the person subject to the screening/assessment comply with any reasonable request or requirement imposed by the officer for that purpose.
A non-exhaustive list of “likely requirements” is contained in paragraphs 10(2) and 10(4) and includes:
a) providing or having taken a biological sample (defined as blood or respiratory secretions);
b) providing information about their health or other relevant matters (including travel history and persons with whom they may have had contact);
c) providing documents which may assist the officer with their enquiry; and
d) providing contact information.
2. Powers exercisable by a constable or immigration officer
A constable or immigration officer may keep a person at an assessment centre until such time as a public health officer can carry out such processes.
A constable may keep a person at an assessment centre for up to 24 hours (extended for a further 24 hours if necessary to enable screening/assessment and if approved by a superintendent). An immigration officer may keep a person at an assessment centre for up to three hours (extended for a further nine hours if necessary and approved by a senior immigration officer).
It would appear that a police constable and public health officer could hold a person for assessment purposes for up to 96 hours since there is nothing in Schedule 21 that appears to prevent each of them exercising their holding powers sequentially in respect of the same person, provided that on each occasion the relevant tests for using them are met.
Any holding period (or extension of a holding period) must satisfy the necessary and proportionate test outlined above and the constable or immigration officer must consult with a public health officer before exercising holding powers in so far as it is practicable to do so.
3. Data rights
Many of the enforcement powers, in particular those relevant to screening and assessment, pertain to the compulsory transfer of data including confidential and special category data. This raises serious data law questions, which we will explore in future briefs.
4. Powers exercisable after assessment (paragraphs 14 – 16)
These powers apply after a person has been screened and assessed by a public health officer (under Schedule 21 or otherwise) where the screening has confirmed that the person is infected or contaminated with coronavirus or the screening was inconclusive or a person in England has been assessed by a public health officer and the officer has reasonable grounds to suspect that the person is potentially infectious. This means that powers can be exercised even on a negative screening test, if the public health officer has reasonable grounds for considering the person is potentially infectious.
Before any of the powers at paragraphs 14 – 16 can be exercised the person exercising them must be satisfied that the necessary and proportionate test has been met.
Paragraph 14 allows a public health officer to impose “requirements” or “restrictions” on a person satisfying the criteria above.
Paragraph 14(3) contains a non-exhaustive list of “requirements” as follows:
a) to provide information
b) to provide contact details
c) to go for further screening and assessment
d) to remain at a specified place (which may be a place suitable for screening and assessment) for a specified period and
e) to remain at a specified place in isolation from others for a specified period
The requirements at (d) and (e) are together defined as a “requirement to remain”.
Paragraph 14(4) contains a non-exhaustive list of “restrictions” as follows:
a) the person’s movements or travel (within or outside the United Kingdom)
b) the person’s activities (including their work or business activities)
c) the person’s contact with other persons or with other specified persons
Where a public health officer imposes a requirement or restriction on a person under this paragraph, the officer must inform the person of the reason for doing so and must state that it is an offence to fail to comply with the requirement or restriction.
In deciding whether to impose a requirement to remain or a restriction under paragraph 14(4), the public health officer must have regard to a person’s wellbeing and personal circumstances.
Once a requirement to remain or restriction is imposed, it must be subject to review by a public health officer within 48 hours, and the public health officer must revise or revoke the requirement to remain or restriction if it no longer satisfies the necessary and proportionate test. If the public health officer revokes the requirement to remain/restriction, then the SoS may, if satisfied that the person is potentially infectious, re-impose the requirement or restriction (for the period originally specified).
An imposed restriction or requirement to remain cannot exceed 14 days initially. If, before the end of the period specified in relation to a requirement to remain or a restriction, a public health officer reasonably suspects that the person will be potentially infectious at the end of that period (another low threshold) and the officer considers that the requirement to remain or restriction is still necessary (ie meets the necessary and proportionate test), then the officer may extend the requirement to remain or restriction for a further specified period. That further specified period cannot exceed 14 days save for where it is a requirement to remain at a specified place in isolation (paragraph 14(3)(e)). No upper limit to a further specified period applies in that case.
Any further specified period of extension must be subject to ongoing review by a public health officer at least once every 24 hours and if the officer considers the person no longer potentially infectious they must revoke the restriction or requirement to remain. If they are not so satisfied, but do not consider that its continuation meets the necessary and proportionate test, then they must substitute a different restriction or requirement for the remainder of the further specified period.
Any restriction or requirement to remain that is imposed by a public health officer is enforceable by a constable or public health officer (though only a constable can intercept and detain a person that has absconded).
4. Powers in relation to children (paragraph 18)
Where the potentially infected person is a child (under 18), then an individual with responsibility for that child must, so far as reasonably practicable, secure that the child complies with any direction, instruction, requirement or restriction given to or imposed on the child, and must provide such information and assistance in relation to the child as is reasonably necessary and practicable in the circumstances.
A power exercisable under paragraph 10 (power to screen/assess a potentially infected person) or under paragraph 14 (power to impose requirements or restrictions on an assessed person, including a requirement to remain) may only be exercised in relation to a child in the presence of:
a. an individual who has responsibility for the child or
b. if the child is not accompanied by such an individual, an adult (other than one on whom powers are conferred under Schedule 21) that the person exercising the power considers to be appropriate, having regard to any views of the child
An adult is anyone over 18 and a person has responsibility for a child if they have parental responsibility (within the meaning of the Children Act 1989) or if a person has custody or charge of the child “for the time being”.
Where a power is exercisable in relation to a child but the child is not accompanied by an individual who has responsibility, the person by whom the power is exercisable must, if practicable, contact an individual who has responsibility for the child before the power is exercised, or if that is not practicable, take reasonable steps after the power is exercised to contact such an individual and inform them of any exercise of the power in relation to the child. This means that powers can be exercised in respect of a child even in the absence of the child’s parents.
Great care will need to be taken when exercising powers in respect of a child, particularly where the child is not accompanied by a person with responsibility.
6. Ancillary powers (paragraph 19)
Though they have greater decision-making powers, public health officers will need to rely on law enforcement officers to remove people to assessment centres and for enforcement in respect of powers exercised during and after the screening and assessment process. Ancillary powers clearly intended for this purpose are provided for in paragraph 19.
Most noteworthy amongst them are:
- a right to keep a person for a reasonable period pending their removal for assessment/screening (a reasonable period is not defined);
- that a constable or immigration officer (but not a public health officer) may use reasonable force, if necessary, in the exercise of any power conferred by Schedule 21 (by them or by a public health officer); and
- that a constable may enter any place for the purpose of the exercise of a power conferred by Schedule 21.
So what are the safeguards?
The fact that these enforcement powers will interfere with human rights means safeguards are required to ensure that interference is lawful and to intervene when it is not.
Requirement to give notice of decision (with reasons)
Schedule 21 is clear that notice of a decision (with reasons) is required in respect of any power (whether it be a direction, instruction, requirement or restriction) that is exercised, but the requirement for written notice applies only to a requirement or restriction imposed by a public health officer under paragraph 14 (powers exercisable after screening/assessment). In such cases, notice may be given orally in the first instance, but must, as soon as reasonably practicable thereafter be given to the person in writing. In all other instances, notice may be given orally or in writing. This is because of the extent and duration of the interference with rights that will arise from such an arrangement and the fact that regulation 14 decisions are subject to a right of appeal.
Right of appeal (paragraph 17)
A person who has imposed on them any requirement or restriction under paragraph 14 (or variation or extension of the same) can appeal it to a magistrates court. The court will either:
a) confirm the requirement or restriction (or variation or extension) with or without modification; or
b) quash the requirement or restriction (or variation or extension).
If the court were to quash a requirement or restriction, it would presumably be open to an officer exercising powers conferred on her by Schedule 21 to decide to take subsequent enforcement action against that person if the conditions for it were met.
A right of appeal exercisable by a child under Schedule 21 is also exercisable by a person with responsibility for that child.
Interestingly, there is no legal right to appeal a holding period prior to or for purposes of screening and assessment.
Paragraph 23 makes it an offence for a person to do any of the following:
i. fail without reasonable excuse to comply with any direction, reasonable instruction, requirement or restriction given to or imposed on the person;
ii. fail without reasonable excuse to comply with a duty relating to a child over whom the person has responsibility;
iii. to abscond or attempt to abscond while being removed to or kept at a place under Schedule 21;
iv. knowingly provide false or misleading information in response to a requirement to provide information under this Part of Schedule 21 or otherwise in connection with the exercise of any power under this Part of this Schedule 21, or
v. obstruct a person who is exercising or attempting to exercise a power conferred by this Part of this Schedule.
A person that commits an offence will likely find themselves compelled, by use of reasonable force if necessary, to comply with the direction, instruction, requirement or restriction in any event, and if found guilty will be liable on summary conviction to a maximum fine of £1,000.
Being charged with an offence under Schedule 21 will not preclude a person from being charged with other offences that they are reasonably suspected of having committed.
What about those already detained under the 2020 Regulations?
Paragraph 24 of Part 2 of Schedule 21 revokes the 2020 Regulations, but express provision in Schedule 21 prevents the revocation having any effect on any requirement for detention imposed on a person under regulation 4 of the 2020 Regulations. This means a person detained pursuant to regulation 4 at the time the Bill comes into force will remain lawfully detained for the duration of that period of detention and, that the existing period of detention in England will be unaffected by Schedule 21. Any necessary further period of detention would have to be under Schedule 21.
There is nothing in Schedule 21 that permits the military to exercise the powers contained therein. If such measures were deemed necessary (such as in Italy), then such arrangements would sit outside of Schedule 21 as currently drafted.
Paragraph 21 of Part 2 requires that a person exercising enforcement powers “must have regard to” any relevant guidance published by SoS. There is no such guidance currently available, but it is safe to assume that it will shortly follow and that it will set out the operational arrangements to which Schedule 21 is to apply.
The fact that these powers are so far reaching and that they may effect so many means that guidance on their application will be essential.
In particular, guidance on holding powers, restrictions on movement and contact and on how the powers should be applied to children and adults deemed to lack mental capacity will be essential for their effective use. Schedule 21 contains no express provisions regarding this latter category of person but there is nothing in Schedule 21 to exclude them from its scope.
Currently, there are no comparable powers in the proposed amendments to the Mental Health Act 1983 either.
Schedule 22: powers relating to events, gatherings and premises
It is worth noting, in the context of our review of Schedule 21, that Schedule 22 gives the SoS power to prohibit or restrict events and gatherings, and to close premises, if the public health situation deems it necessary.
Powers contained in Schedule 22 can be deployed if, having had regard to the relevant advice, such a prohibition or restriction would:
a) prevent, protect against or control the incidence or transmission of coronavirus; or
b) facilitate the most appropriate deployment of medical or emergency personnel and resources.
It is these powers that will be used to implement and enforce the restrictions imposed on the population this week.