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Session 2009 - 10
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Delegated Legislation Committee Debates



The Committee consisted of the following Members:

Chairman: Mr. Edward O'Hara
Atkins, Charlotte (Staffordshire, Moorlands) (Lab)
Blunkett, Mr. David (Sheffield, Brightside) (Lab)
Carswell, Mr. Douglas (Harwich) (Con)
Challen, Colin (Morley and Rothwell) (Lab)
Creagh, Mary (Wakefield) (Lab)
Davies, David T.C. (Monmouth) (Con)
Kelly, Ruth (Bolton, West) (Lab)
Lamb, Norman (North Norfolk) (LD)
Malins, Mr. Humfrey (Woking) (Con)
Merron, Gillian (Minister of State, Department of Health)
Mulholland, Greg (Leeds, North-West) (LD)
Munn, Meg (Sheffield, Heeley) (Lab/Co-op)
O'Brien, Mr. Stephen (Eddisbury) (Con)
Salter, Martin (Reading, West) (Lab)
Wilson, Mr. Rob (Reading, East) (Con)
Winnick, Mr. David (Walsall, North) (Lab)
Eliot Barrass, Committee Clerk
† attended the Committee

Sixth Delegated Legislation Committee

Tuesday 23 February 2010

[Mr. Edward O'Hara in the Chair]

Draft Health Protection (Part 2A Orders) Regulations 2010
4.30 pm
The Minister of State, Department of Health (Gillian Merron): I beg to move,
That the Committee has considered the draft Health Protection (Part 2A Orders) Regulations 2010.
The Chairman: With this it will be convenient to consider the draft Health Protection (Local Authority Powers) Regulations 2010 and the draft Health and Social Care Act 2008 (Consequential Amendments) Order 2010.
Gillian Merron: The regulations will bring existing health protection powers into the 21st century. They will enable local authorities to act quickly, and with legislative backing, to tackle health threats resulting from infection or contamination if people do not act voluntarily. They will also protect people’s rights when action is taken to deal with such threats and ensure that we are ready and prepared for dangers that were unimaginable when the previous legislation was drafted.
Today’s global society means that new strains of infection can emerge and spread rapidly. We face increasing risks from contamination, either accidental or deliberate. I am sure that everyone will remember that not so long ago radiological contamination in London cost Mr. Litvinenko his life. That contamination had the potential to cause widespread further harm. Fortunately, that was averted through the swift action of the authorities, but they were not helped by the limitations imposed by the legislation then in force, some of which go back to the Victorian era.
Existing health protection legislation is outdated and incapable of protecting public health. The regulations are the nuts and bolts that complement the amended primary legislation, allowing us to complete the picture. The new powers are not to be used lightly, and we hope that they will be invoked only rarely. This is not new territory, although it is limited. It is estimated that justices of the peace in England currently make about 10 orders a year to deal with risks to public health, mostly in respect of drug-resistant tuberculosis and when the people concerned are being referred to hospital. However, it is right that we should be as prepared as we can be, while still being responsive to need and safeguarding people’s rights.
Health protection legislation is needed only in those rare cases when someone refuses to take action to protect others and there is no other way to deal with the potential harm. The amended legislation and the regulations strike the right balance between the protection of human health and individual rights. The regulations provide an effective way to deal with threats, but also include many safeguards.
For the benefit of the Committee, I shall briefly describe the measures in detail. The Health Protection (Part 2A Orders) Regulations 2010 allow JPs to make orders to protect human health. The regulations set out requirements on the evidence that a JP must have before making such an order. They also provide further safeguards for those who might be affected by an order, including a duty on the local authority to notify interested parties and to provide the subject of the order with information.
Orders relating to a person are restricted to a maximum of 28 days, and all applications for orders must be reported to the Health Protection Agency. I believe that that will give us a new transparency. I give a commitment to the Committee that we will publish summarised information on orders that have been sought and made. The regulations extend the human rights protections given in primary legislation, and deliver all the commitments made by the Government when the health protection measures in the Health and Social Care Act 2008 were debated in another place.
The local authority powers regulations set out the powers of local authorities to take the action necessary to protect health without having to apply to a JP for an order. They empower the authorities to keep a child away from school if he or she could put others at risk from infection or contamination; to require details of other children at the school; and to prevent access to dead bodies that pose a risk. They allow the local authority to make a formal request to someone to co-operate for health protection purposes, and to disinfect or decontaminate anything or any premises on request. If those powers are not sufficient to deal with a health protection problem, the local authority may apply to a JP for an order under the terms of the amended Act.
For the sake of completeness I refer to the draft order, which amends the Water Industry Act 1991. It is required as a consequence of a change to the Public Health (Control of Diseases) Act 1984, and it has no other effect.
I hope that the Committee will see fit to support the statutory instruments.
4.34 pm
Mr. Stephen O'Brien (Eddisbury) (Con): It is a pleasure to serve under your chairmanship, Mr. O’Hara. Mindful of what was agreed earlier, is it in order for me to address all the statutory instruments, although only one has been introduced?
The Chairman: Indeed. When we come to the remaining two, I shall ask the Minister to move them formally, so there will be no further debate.
Mr. O'Brien: I am grateful for that clarification. I shall address all the points comprehensively. Because of that approach, which I had hoped for and therefore anticipated, it may help to place briefly all the statutory instruments in context. Although they deal with somewhat different things, they are of course interrelated and sit underneath what might best be described as the public health agenda. I shall make a few introductory comments, which will bear relation to what follows in perhaps more detail.
After the events of the past few weeks, I bring up the social care agenda because funding is crucial to knowing whether initiatives will happen. The response to a parliamentary question on the Personal Care at Home Bill divided the £420 million that the Department is to contribute into
“nearly £50 million from indicative advertising and communications spending, over £60 million from management consultancy spending and over £20 million in reduced administration costs.
In addition, a saving of £62 million will be achieved by transferring responsibility for research activity from other departmental budgets to the Department's ring-fenced research and development budget. That budget will rise to over £1 billion in 2010-11. The research it currently funds will continue as planned.”—[Official Report, 8 December 2009; Vol. 502, c. 296W.]
That is relevant because some of the research budget has a direct connection to, and indeed a crossover with, public health, and there is a question mark over where the ring-fencing sits. The answer outlines where the money comes from to make up the promised £420 million, but the figures total only £192 million. We want to know, therefore, where the rest of the money will come from, and that is why I hope that the Minister will take the opportunity to ensure that we do not divert future research budgets into administration.
The Chairman: Order. I am listening carefully to the hon. Gentleman, and although I think that it is legitimate to make contextual reference to such budgetary matters, the debate should not focus too heavily on them.
Mr. O'Brien: I am grateful, Mr. O’Hara. I was concluding my comments on that introductory contextual area. It does, however, have a direct impact because, without knowing where the funding for what has been announced is coming from, there is a large question mark, not just in my mind but in many of the representations that I dare say other members of the Committee have received. Where will the funding for the public health powers envisaged by the regulations come from if, for instance, the money has already been diverted to fund the proposed personal care under the social care legislation?
As the Minister outlined, the draft Health Protection (Part 2A Orders) Regulations 2010, which I shall now look at in detail, fill a gap in existing public health legislation concerning the power of local authorities to intervene in cases in which individuals or their possessions pose a severe risk to human health.
Regulation 3 places a duty on the local authority to issue a notice to any individual who poses a threat to human health, outlining its intention to intervene in the situation by obtaining an order from a justice of the peace. The order enables the authority to take appropriate action to contain or prevent infection or contamination. I support the need for the local authority to give notice of its application for a part 2A order to the individuals listed in paragraph (4), but there is seemingly no requirement for the local authority to give such individuals warning about the possible charges for which they might be liable once the local authority is granted an order. Under regulation 7, the local authority is given the power to charge the individuals for the cost of taking health measures to combat the threat to public health posed by either the property or the possessions of the individual. However, the local authority does not have to alert the individual to the possibility of such costs before applying for the order.
Can the Minister shed some light on why, under one of the statutory instruments that we are discussing today, local authorities are bound to inform individuals of any penalties that they might incur if they do not follow the order in relation to school attendance but, under another set of regulations, local authorities are not required to inform the adult subject to an application that they might be liable for charges? What is more, section 45F(6) of the Public Health (Control of Disease) Act 1984 states that regulations made under section 45C, for which the part 2A orders regulations qualify,
“must provide for a right of appeal to a magistrates’ court against any decision taken under the regulations by virtue of which a special restriction or requirement is imposed on or in relation to a person, thing or premises.”
Could the Minister explain to the Committee why no such provision for a right of appeal has been made in the regulations with regard to the power of a local authority to charge individuals for the cost of taking health measures or with regard to the decision made by a JP to grant a part 2A order? Despite the fact that section 45F(2)(e) of the Act enables health protection regulations to
“provide for appeals from and reviews of decisions taken under the regulations”,
the Government have chosen not to include that provision in the regulations. In doing so, they have neglected to protect the interests of individuals affected by these local authority powers, as they have no means of appealing against action taken by the local authority. That strikes me as inconsistent, particularly as the person in question might not have been able to prevent the contamination or infection for which they are responsible under the order. Therefore, they might not consider themselves liable for the cost of intervention. Patently, some form of notice is needed if the system, in effect, amounts in legal terms to strict liability.
My second concern with regulation 3 is that a local authority does not have to give notice to the individual subject to the part 2A application
“where exceptional circumstances exist which mean that notifying such a person”—
P—
“would not be in P’s best interests”.
Given that we are conferring on local authorities significant powers to evict people from their homes or place them in quarantine, I am sure the Committee will understand my concern that the wording appears to be more than a little vague. Can the Minister clarify the sort of situation that would qualify as “exceptional circumstances” and inform the Committee of any guidance she intends to issue to local authorities about how to judge whether a notice needs to be given to an individual who is subject to a part 2A application?
Similar clarification is needed for regulation 3(8). How does a local authority make a judgment as to whether a person
“is likely to abscond or otherwise take steps to undermine the order applied for”?
Again, can the Government give examples of what sort of scenario might result in a notification not being given?
In the light of the concerns, it surprises me that regulation 4 contains no requirement for the local authority to report on their reasons for not giving notice to an individual when making their application to the JP through that regulation. Will the Government consider introducing such a requirement? It would help the local authority to adopt an evidence-based approach to whether to give notice and abate the risk of the power to withhold a notice being abused. I am thinking particularly of vulnerable individuals, such as those with learning disabilities or some older people, or those suffering from mental health problems. The local authority may make a judgment that such individuals lack the capacity to comprehend the consequences of a notice, but giving them appropriate notice may alleviate their distress at having to move away from a premises, hand over a possession or enter hospital. Surely the welfare provisions of regulation 9 should apply to the period prior to the order being issued as well during the period when action to contain the infection or contamination is being taken.
In addition to the threat posed to vulnerable individuals by the regulations, National AIDS Trust emphasises the negative impact that the statutory instrument could have on AIDS sufferers. The original Public Health (Control of Disease) Act 1984 gave a list of conditions to which local authorities could apply their powers of intervention. Historically, the only power applied to AIDS was the power to order a medical examination. However, the new regulations submit all diseases, including AIDS, under every power outlined in the instrument.
Mr. Humfrey Malins (Woking) (Con): On that very point, the National AIDS Trust contacted me to say that it has a great number of concerns about this issue and that more than 30 sexual health organisations are concerned that the Government will not exclude HIV and other sexually transmitted infections from the scope of the measures. It hopes that the measures will be monitored for any unforeseen, or other harmful impacts, on sexual health services. I am sure that my hon. Friend would think that that is a fair point.
 
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