• Accessibility
• Email alerts
• RSS feeds
• Contact us

The Government’s response to COVID-19: human rights implications Contents

---

5Detention

98.The Covid-19 pandemic poses significant risks to people in detention and otherwise deprived of their liberty. Places of detention are often overcrowded, and social distancing is difficult to maintain when detainees live in close proximity to one another. These inherent risks are recognised by the World Health Organisation in its guidance on preparing for, preventing and controlling the outbreak of Covid-19 in places of detention, which states that “people in prisons and other places of detention are not only likely to be more vulnerable to infection with Covid-19, they are also especially vulnerable to human rights violations.”103

99.Under the right to life (Article 2 ECHR) the state is under a substantive (or operational) duty to protect life in relation to vulnerable people under the care of the state, such as those detained by the state in prisons, psychiatric detention and immigration detention facilities. The position of care homes is more nuanced,104 but it is arguable that at least some of the steps taken in the context of the Covid-19 pandemic have given rise to sufficient state involvement so as trigger its operational duty to secure the right to life of those subject to Deprivation of Liberty Safeguards (DoLS) within care homes.105 In the circumstances, it is right that the Government’s response to Covid-19 in detention settings should receive particular scrutiny from a human rights perspective.

Prisons, young offender institutions and secure training centres

Lockdown conditions and solitary confinement

100.On 12 March 2020 the Prisons Minister Lucy Frazer MP, released a statement setting out the measures being taken to keep prisoners and prison staff safe and preventing the spread of Covid-19 within prisons.106 Guidance accompanying the statement sets out that the usual regime in prisons had been suspended temporarily to apply social distancing.107 On 24 March 2020 all prison visits ceased.108 These changes were formalised in the Prison and Young Offender Institution (Coronavirus) (Amendment) (No.2) Rules 2020 which came into force on 15 May 2020109 and the Secure Training Centre (Coronavirus) (Amendment) Rules 2020 which came into force on 2 July 2020.110

101.These measures have resulted in extreme restrictions on prisoners’ lives, leading to conditions which the Prison Reform Trust assesses as falling “far below a humane standard.”111 In a report on short scrutiny visits to three local prisons carried out in April 2020, the prisons inspectorate reported that:

“The vast majority [of prisoners] were locked up for nearly the whole day with usually no more than half an hour out of their cells. We found some examples of even greater restrictions. In one prison, a small number of symptomatic prisoners had been isolated in their cells without any opportunity to come out for a shower or exercise for up to 14 days.”112

102.The lockdown restrictions also apply in Young Offenders Institutions (YOIs) and Secure Training Centres (STCs) where children serving custodial sentences are held.113 In written evidence the Children’s Commissioner for England described the regime for children as ‘draconian’ and ‘likely to have long-term effects on the children incarcerated.’114 These concerns are shared by Dame Anne Owers, National Chair of the Independent Monitoring Boards (IMBs), who has highlighted the variation in levels of restrictions between different YOIs, noting that in some, ‘time out of cell’ for some children remains as little as 40 minutes a day.115

103.Solitary confinement, defined as the physical isolation of individuals who are confined to their cells for 22–24 hours a day, breaches the rights of children in detention and, where it is prolonged, the rights of adults in detention.116 In our view the restrictive lockdown regimes in prisons, YOIs and STCs have left prisoners in solitary confinement for long periods in conditions likely to engage the right to freedom from inhuman and degrading treatment (Article 3 ECHR). This is especially concerning where it affects children. This Committee’s 2018 report on the use of solitary confinement and restraint noted the harmful effects of these practices on children.117 The impact on older prisoners, including for those with dementia, will have also been particularly severe.118

104.The charity INQUEST has drawn the Committee’s attention to the high number of self-inflicted deaths in prisons; 28 deaths between March and 16 July 2020.119 Despite early indications of possible reduction in the incidence of self-harm, HMIP reports in some instances that the opposite is the case.120

Proportionality

105.The decision to suspend the normal regime in prisons in England and Wales was taken in response to an assessment from Public Health England (PHE), in the early days of the pandemic, that between 2,500 and 3,500 prisoners were at risk of dying from Covid-19.121 In the event, in the period to 17 July 2020, 23 prisoners have died, with no deaths of children in custody and 9 members of prison staff.122 While every individual death is a tragedy, the fact that the number of deaths was far below PHE’s projected figures indicates that the measures taken did have a positive impact on limiting the spread of the virus and met the policy objective of saving lives. However, legitimate questions remain as to whether the severe restrictions on prisoners’ human rights were proportionate and whether lives could have been protected by other, less restrictive means.

106.The strategy set out by the Government, for containing the virus in prisons not only included suspension of the normal regime and visiting rights but also introduced other policies such as early release for low risk prisoners near the end of their sentence,123 and the introduction of temporary accommodation to reduce the number of prisoners sharing a cell. These measures have been not been used as much as the Government initially estimated they would be. For example, it was originally said that up to 4,000 prisoners would be released early.124 As of 17 July 2020, the number of early releases under Covid-19 temporary release schemes was only 242, of whom 50 were compassionate releases of vulnerable prisoners, pregnant women and mothers with babies.125 It is possible that greater use of the schemes would have reduced overcrowding in prison and made it possible to reduce some of the most extreme restrictions placed on prisoners.

107.It is also noteworthy that the Government’s strategy for responding to Covid-19 in prisons has applied across the whole custodial estate without differentiation for the youth custodial estate nor any apparent consideration of the impact of the restrictions on children’s rights.126 As the Children’s Commissioner highlighted when she gave evidence to the Justice Select Committee, “[y]oung people and children have been at much less risk from health concerns in the crisis, but possibly at greater risk in terms of mental health, and there could have been different decisions made around lockdown.”127

108.Stakeholders are concerned that lockdown restrictions in prisons are being lifted too slowly.128 There have been no Covid-19 suspected deaths of prisoners since the week ending 29 May and on 2 June the Government set out its ‘roadmap’ for how it will take decisions about the easing of coronavirus restrictions in prisons.129 Despite this, progress towards restoring activity and improving conditions for prisoners appears to be slow. When HMIP visited two YOIs at the beginning of July, inspectors reported that:

“Children at both sites told us they initially understood and largely accepted the need for the restrictions, but after 15 weeks of being locked up for more than 22 hours a day some were understandably frustrated about the slow progress in implementing activity, particularly as they saw restrictions easing in the community.”130

109.Lockdown restrictions in prisons must be subject to a reasoned and transparent human rights proportionality assessment and only used for the minimum time necessary. Children should not under any circumstances be subject to lockdown restrictions which amount to solitary confinement.

110.Given the risk of further waves of the pandemic, the Ministry of Justice should carry out a full evaluation of its Covid-19 policy in prisons, young offender institutions and secure training centres as a matter of urgency and issue guidance on how to respond to future outbreaks.

Inspections

111.On 17 March 2020, Peter Clarke, HM Chief Inspector of Prisons, announced that all HMI Prisons’ scheduled inspection work involving visits to prisons or other places of detention had been suspended.131 However, in order to meet the UK’s obligations under the Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT)132 and the Chief Inspector’s ongoing statutory duty to report on treatment and conditions for those detained, the inspectorate undertook to continue making short scrutiny visits to establishments based on risk or to a group of establishments based on establishment type. These scrutiny visits and the introduction of a confidential hotline by the Independent Monitoring Board to receive calls from prisoners, and the subsequent publication of findings by its National Chair, Dame Anne Owers, have been important mechanisms for understanding how the measures taken to address Covid-19 have impacted on prisoners’ human rights.

112.While short scrutiny visits by the prisons’ inspectorate have proved an important source of information on what has been happening inside detention settings during the pandemic, continuing restrictions on inspections mean that human rights abuses may be going undetected in these settings. It is imperative that full inspections resume, safely, as soon as possible.

Visiting

113.The suspension of all prison visiting is a serious interference with the right of prisoners and their families to respect for private and family life (Article 8 ECHR) and should not be imposed in a blanket fashion.133 The impact of the lack of visits on prisoners and their families has been significant. Dr. Shona Minson, University of Oxford, carried out interviews during lockdown with parents and carers looking after children who have a parent is prison:

“Almost all of the children included in the research have had increased anxiety about their parents …

The new behaviours among children since the cessation of contact include but are not limited to: disrupted sleep; self-harm; co-sleeping; panic attacks; weight loss; development of an eating disorder; withdrawal from the family; nightmares; anger; clinginess; physical aggression towards others in their household. Almost all of the children have been reported as experiencing sadness, anxiety and crying.”134

114.Evidence compiled by the Prison Reform Trust reveals a gap between what was promised by the Government in terms of measures to make up for the loss of social visits and what has so far been delivered on the ground. For example, despite a commitment that video calls would begin to be introduced in prisons, so far, they have been rolled out to just 40 of the 120 establishments on the prison estate in England and Wales.135

115.Blanket visiting bans in prisons are incompatible with the right to family life (Article 8 ECHR). Any restriction on visiting rights must be shown to be necessary and proportionate in each individual case. As soon as it is safe to do so, prison visiting must resume as a matter of priority in all prisons.

116.In accordance with the Government’s commitments, in-cell telephones and facilities to make video calls must be installed in all prisons and young offenders institutions without delay, so that in the event that it is necessary to restrict prison visits again in the future, the technology is available to allow prisoners to maintain contact with their families and loved ones.

Mothers in prison

117.Last year we reported on the harmful effect a mother being sent to prison has on her dependent children.136 In July this year we published a further report on the issue in the context of the Covid-19 outbreak.137 Restrictions on visits, and the seeming inability of the Government’s early release programme to reunite a large number of mothers with their children, have put at risk the right to family life of up to an estimated 17,000 children of mothers in prison.

118.We recommended that children must be allowed to visit their mothers in prison on a socially distanced basis, where it is safe for them to do so. Restrictions on visiting rights, where they do exist, must be both necessary and proportionate in each individual case. The Government’s early release schemes have not gone far or fast enough in reuniting children with their mothers; just 16 women from Mother and Baby Units and seven pregnant women had been released at that point. We called on the Government to immediately temporarily release from prison all remaining pregnant women and those in mother and baby units and to consider an extension of their current policy to all mothers of dependent children where those mothers have been individually risk-assessed as posing no, or low, risk to public safety. The report also made recommendations to improve the availability of data, and for arrangements to be made for prisoners to be able to attend funerals remotely.

119.On 20 July we wrote to the Prisons’ Minister.138 We asked her to provide information about the lack of appropriate accommodation for women leaving prison under the temporary release scheme and explain what further efforts have been made to secure such accommodation. In her response the Minister told us that exceptional funding to provide accommodation had been extended to 31 August 2020.139 We welcome this, along with the news that progress is being made to improve the available data on the number of mothers who have been sent to prison during the lockdown period.140 We were pleased to hear that video calling technology has now been rolled out across the entire Women’s Estate.141

120.At the time of writing the Government had not yet responded to our July 2020 report “Human Rights and the Government’s response to COVID-19: children whose mothers are in prison”. We urge them to commit to implementing our recommendations from this report in full at the earliest opportunity.

Detention of young people who are autistic and/or have learning disabilities

121.Last year, the Committee published a report on the detention of young people with learning disabilities and/or autism in Assessment and Treatment Units (ATUs) and other mental health hospitals which concluded that young people’s human rights are being abused; they are detained unlawfully contrary to their right to liberty, subjected to solitary confinement, more prone to self-harm and abuse and deprived of the right to family life.142

122.As a result of the Covid-19 pandemic, these institutions where young people who are autistic and/or have learning disabilities are detained, were closed to the outside world, making the risk of human rights abuses even greater. Unlawful blanket bans on visits were put in place. This, along with the suspension of routine inspections, the increased use of restraint and solitary confinement, and the vulnerability of those in detention to infection with Covid-19 (due to underlying health conditions and the infeasibility of social distancing), created a severe crisis.143

123.In our report on the Government’s response to COVID-19 and the detention of young people who are autistic and/or have learning disabilities, published on 12 June 2020, we recommended that NHS England must write immediately to all hospitals, including private ones in which it commissions placements.144 This letter should state that hospitals must allow families to visit their loved ones, unless a risk assessment has been carried out relating to the individual’s circumstances which demonstrates that there are clear reasons specific to the individual’s circumstances why it would not be safe to do so.

124.Since that report was published, we have continued to be made aware of families who face restrictions in visiting their loved ones being held in mental health detention, potentially in breach of their right to family life.145 It is also of the gravest concern that the Care Quality Commission’s evidence to this inquiry, submitted in July, notes that “mental health services are under pressure and ratings deteriorating.”146 We welcome the CQC’s commitment, set out in its written evidence that: “[w]e have continued and will continue to cross the threshold [of care settings] through inspections where we have significant concerns, including serious concerns about people’s care and where there are human rights breaches.”147 (emphasis in original).

125.We are currently awaiting the Government’s response to both our previous reports on the detention of young people who are autistic and/or have a learning disability. Those reports exposed that young people in these settings were subjected to significant and frequent violations of their human rights. Our recommendations in these reports must be implemented in full as matter of urgency to bring these human rights violations to an end.

Mental Health Detention

The Coronavirus Act amendments to the Mental Health Act

126.The CA 2020 provided for changes to the procedures within the Mental Health Act 1983 (MHA) which would allow people to be admitted to hospital and treated under the MHA should there be extreme staffing shortages, particularly of doctors, due to Covid-19. These include a requirement for only a single medical recommendation for ‘sectioning’ instead of the usual two medical opinions; and the extension of doctors’ holding powers, under which a person can be deprived of their liberty without safeguards, from 72 hours to five days. These provisions have not been brought into force but, if enacted, would significantly reduce the safeguards that exist to prevent arbitrary detention under Article 5 EHCR. The provisions would also enable significant watering down of the protections available in relation to compulsory medical treatment for mental disorder. Mental health stakeholders, including the Royal College of Nursing and the National Survivor User Network, have expressed grave concerns about these measures148 and in its evidence, the mental health charity, Mind, expressed doubt as to whether it would be human rights compliant to enact them.149

127.The need to maintain robust safeguards to ensure that mental health patients are only detained where it is necessary and proportionate to do so, is heightened by the fact that those in detention are likely to be at higher risk of infection from Covid-19. Monitoring by the charity INQUEST shows that between 1 March and 5 June 2020 there were over four times as many Covid-related deaths of people detained under the MHA (78) as Covid-related deaths in prisons (19), which hold around four times as many people as those detained under the MHA.150

128.The continued ability of the DHSC to bring changes to the Mental Health Act 1983 into force after the first six months of the CV Act must be justified or the powers repealed. If the powers are maintained in any way, the DHSC must publish the guidance to accompany them so that it is possible for there to be scrutiny of their provisions. The Government should also make clear what steps it is taking to bring forward the White Paper promised to respond to the Independent Review of the Mental Health Act 1983.

The Mental Health Tribunal

129.Changes to the procedures of the Mental Health Tribunal in England, in response to Covid-19 have led to most hearings being held remotely and, at least for a period of time, hearings being conducted by a single Tribunal judge rather than three (i.e. a legal, psychiatric and specialist lay member),151 with the pre-hearing examination by the psychiatric member being dispensed with in all cases, and (separately) an increased ability to dispose of matters without a hearing at all.152 Concerns have been raised about the impact of these changes on individuals’ ability to challenge their detention and treatment in accordance with their right to a fair trial (Article 6 ECHR).153

130.The Mental Health Tribunal should be supported to be able to discharge its functions with hearings conducted by three member panels, by video, wherever possible, and to enable the return of pre-hearing examinations, to minimise the impact of what has been a substantial diminution in the safeguards provided by the Tribunal.

Deprivation of Liberty under the Mental Capacity Act 2005

131.The CA 2020 does not amend the Mental Capacity Act 2005, however, the Department of Health and Social Care has issued emergency guidance which affects the operation of procedures for depriving persons of their liberty on the basis of mental incapacity.154 This guidance recognises that during the pandemic additional pressures will be placed on care providers and supervisory bodies that may limit their ability to operate the Deprivation of Liberty Safeguards (DoLS) system as they would under normal circumstances. In light of, this it goes on to state:

“Fundamentally, it is the department’s view that as long as providers can demonstrate that they are providing good-quality care and treatment for individuals, and they are following the principles of the MCA and Code of Practice, then they have done everything that can be reasonably expected in the circumstances to protect the person’s human rights.”155

132.There is concern in some quarters that this guidance can be interpreted as signalling that DoLS should be given low priority during the pandemic and result in even more people being deprived of their liberty unlawfully.156 The Vice-President of the Court of Protection has written to the Association of Directors of Social Services in these terms:

“The deprivation of the liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed. The Mental Capacity Act 2005, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable.”157

133.We agree with Mr Justice Hayden that Deprivation of Liberty Safeguards (DoLS) provide ‘indispensable safeguards’ for those who are subject to them. Indeed, DoLS are more important than ever when those who lack capacity to consent to new restrictions on their freedoms may be subjected to such new restrictions intended to protect their right to life. DoLS provide a framework for verifying that such restrictions are necessary and proportionate. It is vital that DoLS authorisations are in place to ensure persons deprived of their liberty on the ground of mental incapacity have safeguards in place and the means to challenge their deprivation of liberty.

134.The Joint Committee on Human Rights has previously made recommendations on the importance of making progress towards the implementation of Liberty Protection Safeguards (LPS) which are being brought in to replacing DoLS due to problem in the way that the DoLS system operates. The Government announced on 16 July 2020 that LPS would come into force in April 2022, rather than 1 October 2020 as originally planned.158 We regret this delay, although we accept it is inevitable given the unprecedented circumstances. It is essential that Liberty Protection Safeguards are introduced in April 2022 and that there is no further delay. Resources must be allocated to ensuring that the new safeguards are implemented effectively, and that all those involved are properly trained, within the new timetable.

Visiting in care homes

135.The impact of visiting restrictions on care home residents during the pandemic has been profound.159 In the recent case of BP v Surrey County Council Hayden J noted that:

“All agree that BP has struggled to cope with or understand the social distancing policy which it has been necessary to implement. FP said that she believes her father thinks that he is being punished in some way. [ … ] It is thought that the deprivation of contact with his family has triggered a depression.”160

136.We are very concerned about the impact of lack of visiting on those living in care homes. We consider that blanket visiting bans for those deprived of their liberty are contrary to the rights of residents and their families under the ECHR.161 We therefore welcome the guidance on visiting care homes, published on 22 July which sets out a framework for local area policies, guided by the relevant Public Health England Director for the area, in accordance with which individual policies for care homes can be developed.162 We hope that future DHSC guidance on visiting in care homes will allow for a more proportionate approach to visiting which minimises any necessary interference with residents’ right to family life (Article 8 ECHR). The Government must ensure that care homes are not implementing blanket bans on visiting. Restrictions on visiting rights must only be implemented on the basis of an individualised risk assessment and such risk assessment must take into account the risks to the person’s emotional wellbeing and mental health of not having visits.

Immigration detention

Releasing individuals from immigration detention

137.In this Committee’s work on immigration detention in the last Parliament, we set out the legal framework which applies to immigration detention in the UK.163 We discussed the important constraints on the state’s powers to detain for immigration purposes set out by the Hardial Singh principles, which apply where the immigration authorities are seeking to remove a person from the UK. These set out the principle that if it becomes apparent that the Home Secretary will not be able to effect deportation within a reasonable period, she should not seek to exercise the power of detention. In our report we also highlighted the importance of using detention only when necessary and proportionate and ensuring alternatives to detention are always explored. In our report we also called for a maximum cumulative time limit for immigration detention of twenty-eight days.

138.In light of Covid-19, the heightened level of risk to health of detainees and the closure of borders, civil society and international organisations such as the Council of Europe’s Commissioner for Human Rights called for the release of immigration detainees.164 Legal action was initiated by Detention Action against the Government in March 2020 which challenged the “on-going detention of all immigration detainees, in particular those with pre-existing conditions which increase vulnerability to Covid-19 …[and] … the absence of an effective system for protecting immigration detainees from Covid-19.” By the time of the hearing, the Secretary of State had taken a number of steps to address the possible effect of Covid-19 in immigration detention centres, including:

• Reducing the number of people already in immigration detention from 1,200 on 1 January to 736 by 24 March 2020;
• Issuing guidance on the prevention and control of outbreaks of Covid-19 in places of detention; and
• Giving instructions about circumstances in which the Secretary of State will exercise her power to detain.165

139.The High Court dismissed the challenge brought by Detention Action on 25 March and highlighted the actions of the Secretary of State to reduce the numbers of those in detention, and the measures put in place to protect those that remain in detention.”166

140.The latest statistics from the Home Office published on 27 August 2020 suggest that the number of people held under immigration powers on the detention estate fell by 939 between the end of December 2019 and the end of June 2020. However, hundreds of individuals remained in detention. At the end of March 2020 895 individuals were in detention and at the end of June 2020 698 individuals were in detention.”167 For most of these individuals, there would have been little or no prospect of imminent removal given the suspension of most international travel. This raises questions around the legality of detaining individuals during a pandemic. Where there is no reasonable prospect of removal within a reasonable timeframe, immigration detention ceases to be lawful. The Home Office should keep cases under review to ensure that individuals are not detained unlawfully.

Conditions in immigration detention

141.A report by HM Inspectorate of Prisons following short scrutiny visits to Immigration Removal Centres found that “processes for supporting and reviewing the detention of the most vulnerable detainees were in place” and that the reduction of detainees allowed managers to provide “reasonably safe and open regimes.”168 However, evidence from Detention Action and Medical Justice to our inquiry expressed concern about the management of detention facilities. Detention Action told us that clients have reported “unsanitary conditions in detention, including lack of soap and hand sanitiser, insufficient cleaning materials, rats, and lack of ventilation” and Medical Justice said that they have “seen cases of detainees with Covid-19 comorbidities that have not being detected by the Home Office.”169 There was further concern about the level of testing of infections in IRCs.170 For those individuals in immigration detention, as in other detention settings, steps taken to prevent the spread of the disease into and within detention settings should be reviewed at regular intervals and particular care should be taken in respect of individuals who are considered to be especially vulnerable to Covid-19.

142.Individuals have continued to be detained during the pandemic although the vast majority of people detained were held for a short period of time.171 The JCHR’s previous report on immigration detention highlighted the importance of making detention decisions independent of the Home Office to ensure that the initial decision to deprive a person of their liberty is robust and fully justified. The Committee recommended that “in cases where detention is planned there should be properly independent decision-making” and that detention “decisions should be pre-authorised by a person or body fully independent of the Home Office.” We urge the Government to implement this recommendation: in the context of the pandemic it is more important than ever, given the risk to immigration detainees’ health.

Powers Relating to Potentially Infectious Persons

143.The CA 2020 provides public health officers, constables and immigration officers with various powers to detain, screen, assess, and isolate individuals who are “potentially infectious”, subject to time limits. A person is “potentially infectious” at any time if: the person 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 the person has been in an infected area within the 14 days preceding that time.172 There are also powers to require persons to provide biological samples, contact details, documents and to restrict travel and contact with certain people. Specific powers relate to potentially infectious children. Failure to adhere to restrictions imposed by officers is a criminal offence.

144.These powers inevitably engage Article 5 as they allow for deprivation of liberty of persons who fall within the definition of “potentially infectious”. Article 5(1)(e) allows for deprivation of liberty in accordance with a procedure prescribed by law for the purposes of the prevention of the spreading of infectious diseases. Any interference must be necessary and proportionate. The powers also engage Article 8 (the right to private and family life) and Article 11 (freedom of association).

145.There have been serious problems with the implementation of these powers relating to “potential infectious persons”. We note, for example, the case of Marie Dinou, who was charged under these powers instead of the Coronavirus ‘lockdown’ Regulations,173 despite the fact she was not considered to be “potentially infectious” and therefore did not fall within these powers.174 On 15 May 2020, the CPS published its findings following a review of 44 prosecutions brought under the Coronavirus Act. Alarmingly, all 44 cases brought under the Act were found to have been incorrectly charged as there was no evidence the individuals concerned were “potentially infectious”.175 Although we hope that such misuse of power will not happen again, the definition of a “potentially infected person” is very wide and as such, the powers remain subject to abuse.

Safeguards

146.There are some safeguards built into these provisions. The powers can only be used once there has been a declaration of a serious and imminent risk to public health, and only for as long as the controls are reasonably considered to prevent the spread of the Coronavirus. Further, the powers can only be exercised if the officer considers that it is necessary and proportionate to do so in the interests of the person; for the protection of other people, or for the maintenance of public health.

147.In theory, this test aligns with the requirements of human rights law, which provides that any interference with liberty must be justified in accordance with a specified purpose (including public health), necessary to achieve the aim, and proportionate. However, there may be a risk that officers with no experience in, or guidance on, assessing necessity and proportionality will not be able to apply these tests effectively, with the risk they become arbitrary. Police and immigration officers must consult a public health officer if practicable, which may help, but there is no guarantee that this consultation will be possible.176

148.Further, there is no minimum qualification for appointment as a “public health officer”. As well as public health consultants, the Secretary of State can designate a “public health officer”. Whilst this power may be reasonable in order to ensure there is sufficient capacity of public health officers, there should be minimum requirements for designation of public health officers, given the strong powers of detention they will have under the Act. There are also requirements on persons to provide biological samples, contact details, and documents, where requested by a public health officer.177 There is no safeguard as to the length of storage of the biological information collected under powers relating to potentially infectious persons, nor safeguards relating to its destruction, and future use. The Coronavirus Act should be amended to ensure this medical data is subject to adequate safeguards.

149.When exercising powers after screening has taken place, as a safeguard, the public health officer must “have regard to a person’s wellbeing and personal circumstances”.178 Further, the specified period for imposing restrictions must not exceed 14 days. The public health officer must assess the person within 48 hours of restrictions being imposed and consider whether they are necessary and proportionate.179 The specified period can be extended, but must not exceed a further 14 days. This therefore allows for a maximum of 28 days of detention following screening.180 This is a significant period of detention.

150.There is no right of appeal against the exercise of powers before screening and assessment have taken place. Once screening and assessment have taken place, a person on whom a requirement or restriction is imposed may appeal against it (or against any variation of it or any extension of the period to which it relates) to a magistrates’ court.181

New offences

151.New offences have been created in relation to these powers under the CA 2020. Where a public health officer exercises the powers to detain, screen, assess and isolate potentially infectious persons, the officer must inform that person of the reason they are directing or removing them, and that it is an offence in a case where a person is directed, to fail without reasonable excuse to comply with the direction, or in a case where a person is removed (by the officer or by a constable), to abscond.

152.Once a person is at a place for screening/assessment, a public health officer may also require the person referred to in paragraph 8182 to remain at the place for screening and assessment purposes for a period not exceeding 48 hours. When exercising this power, the public health officer must inform that person: of the reason for imposing the requirement; of the maximum period the person may be required to remain there, and that it is an offence to fail to comply with the requirement.

153.A number of new offences are created by Schedule 21 paragraph 23. This includes making it an offence if a person fails, without a reasonable excuse, to comply with any direction, instruction, requirement or restriction given to or imposed on them, or absconds or attempts to abscond while being removed to or taken to a screening or assessment centre.183

154.It is hoped that the vast majority of “potentially infectious” people will comply with public health advice, and that legal enforcement will not be necessary in such cases. In such circumstances, the Government must justify the continued need for an executive power to deprive a wide cohort of persons of their liberty. Article 5(1)(e) ECHR allows states to detain individuals “for the prevention of the spreading of infectious diseases … “. Although the case law on Article 5(1)(e) is very limited in this context, it is clear that the courts will consider whether less severe measures have been considered and found to be insufficient to safeguard the public interest, before using detention as a last resort.184 The Government must justify why it is necessary and proportionate for these extraordinary powers to remain law. In particular, the Government must provide evidence to Parliament that these powers are necessary for the prevention of the spread of Covid-19 and that the power to prosecute is not being misapplied. In the absence of any clear evidence to support the retention of these powers, they ought to be repealed.

155.In order to allow Parliament to assess the Government’s use of these significant powers, the Government must publish data setting out the number of individuals who have been subject to these powers, the number of individuals who have been charged under the new offences, and any successful appeals there have been against the use of these powers.

156.There are some safeguards built into the powers, but if these powers are to be retained beyond the six-month review, these safeguards should be strengthened:

a)The definition of “potentially infectious person” should be reviewed to ensure that its scope is not too wide and the powers are not open to abuse.

b)The Act provides that these powers may only be exercised where necessary and proportionate in the interests of the person, for the protection of other people, or the maintenance of public health. The Government should ensure its guidance is up to date and available for officers regarding the application of this test.

c)There should be minimum requirements for the designation of a “public health officer” to ensure only experienced and qualified persons are able to exercise such powers.

d)There should be robust safeguards as to the length of storage of the biological information collected, its destruction and future use.

e)The only right of appeal provided for is in relation to powers exercisable post-screening and assessment. Individuals should be given a right of appeal to the Magistrates Court in relation to all powers, particularly given the option of judicial review is not an immediate and effective remedy for detained persons.

f)Guidance from the Department for Health should be incorporated into the Act to state that if someone lacks the capacity to make an appeal, it can be made by someone on their behalf even if the person is not objecting or does not understand they can make a challenge.

---

• A-Z index
• Glossary
• Contact us
• Freedom of Information
• Jobs
• Using this website
• Copyright