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One of the final series of amendments calls on the Minister to justify the need to create an emergency power to make regulations which might enable the detention, quarantine or isolation of individuals without parliamentary oversight and without the same safeguards required in the Civil Contingencies Act. I am very grateful to the noble Baroness, Lady Tonge, for raising that.

The purpose of the amendments is to ask the Minister to explain why such broad powers to deal with public health risks are necessary and proportionate. We propose further safeguards for individual liberty and to ensure proper parliamentary oversight.

Amendment No. 166 clarifies the scope of health protection regulations. It does not change the effect of the Bill but clarifies the Government’s policy intention, which is to allow health protection regulations to enable the imposition of special restrictions or requirements by the Secretary of State or other decision-makers. In its report on this part of the Bill, the Joint Committee on Human Rights concluded that the effect of these provisions was far from clear and accessible. The effect of our amendment would be to clarify that, although health protection regulations may not directly impose requirements for medical examination, removal

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to hospital or other places, detention, isolation or quarantine, these provisions are intended to allow health protection regulations to enable others to impose these restrictions.

Amendment No. 167 concerns the timescale of special restrictions and requirements imposed by regulations. The Joint Committee expressed concern in its report that the provisions in the Bill which allow health protection regulations to impose regulations and requirements on individuals are not subject to any specific restriction on the time a person might be affected.

The committee was particularly concerned about special restrictions and requirements, such as conditions that could otherwise be ordered by a JP, including health monitoring and requirements to provide information, attend training or advice sessions or to be subject to restrictions on contact with others. The committee accepted that the limitation that health protection regulations containing or authorising special restrictions or requirements must be in response to a serious and imminent threat to public health was a positive safeguard. However, it considered that the failure to specify that measures should end when that threat subsides significantly undermined the safeguards.

Our amendment would introduce a requirement that any regulations imposing special restrictions or requirements on individuals would lapse after six months. The amendments provide that those regulations may be renewed but must lapse when they are no longer necessary or proportionate to meet the serious or imminent threat to public health that triggered their use. The amendments also provide that, where regulations enable the imposition of medical examination, detention, isolation or quarantine, a short timetable should apply to those restrictions.

At present, although the Bill proposes that there should be a 28-day limit on the imposition of these restrictions by a JP before they must lapse and be revisited, no similar administrative restriction is required in respect of the imposition of these requirements. My amendment proposes that any restriction that includes medical examination, detention, isolation or quarantine shall remain in place for no more than 14 days. Thereafter, the restriction can be renewed only by a JP but it can be renewed for up to seven days. Following that, any restriction can be continued, subject to automatic review by a JP every seven days and subject to a maximum period to be set by the Secretary of State.

The government response to our reports did not address those issues, but I very much hope that the Minister will address them now.

Baroness Murphy: I shall speak briefly to probing Amendment No. 166A. I support the amendments of the noble Baroness, Lady Stern, and praise the exposition of the noble Earl, Lord Howe, on this group of amendments.

I have difficulty with this issue. When I read page 69, line 37 of the Bill, which mentions “other persons”, I assumed that it referred to public health personnel from the local health authority—the primary care trust—which was engaged in this. My question for the Minister is: is that right? I am

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familiar with the public health intervention powers and powers under the National Assistance Act, which I will talk about later. These provide a clear hierarchy of intervention powers. It is clear that the local public health department is responsible, through a medical officer of health or a proper officer, for who must make the decision and when.

I understand that we are trying to legislate for a broad range of threats but we need to have far greater clarity about how this will be translated into regulation and the practicalities of that. Given that these are rather draconian powers, they need considerable watching. We will discuss the monitoring of those powers later, because that is another aspect that concerns us. We need far greater clarity about who will do what to whom and when.

Baroness Thornton: As the noble Earl said, we now turn to Part 3. Clause 123 updates the Public Health (Control of Disease Act) 1984. It builds on local authorities’ existing powers to protect the public from significant health risks while introducing safeguards to protect the individual. For example, the existing legislation only provides a justice of the peace with the power to require an individual to be medically examined, to remove an individual to hospital or to require that he is detained in hospital. We believe that those are extreme measures, and the new legislation offers a flexible range of measures enabling the justice of the peace to seek the most appropriate measure for the case—in many cases, a much less restrictive option than the previous Act would have allowed. I apologise for the density and diversity of these clauses. I sought assurance from my officials that it was necessary for them to be written in this way, and I was assured that it was necessary in order to cover all the eventualities and safeguards.

Amendment No. 161 removes new Section 45C(2)(b), which clarifies some of the ways in which the domestic regulation-making power may be used. The scope of this power needs to be broad in order to ensure that we can take action to protect public health. However, I recognise that it can raise legitimate concerns, which is why we have set out in the delegated powers memorandum and the further detailed policy statement how we intend to use it. Those detailed explanations of our intent are available in the Library, and I have placed copies in the corner of this Room.

In addressing some of the other amendments laid against new Section 45C, I hope to be able to persuade the noble Earl and the noble Baronesses why the provision is necessary. Amendment No. 162 seeks to ensure that, when regulations are made under Section 45C(3)(c) to impose or enable the imposition of restrictions or requirements on or in relation to a person, thing or premises, it is done in response to a demonstrably significant threat to public health. I hope that noble Lords will be reassured to know that there are already safeguards in the Bill to ensure that new Section 45C is used in the right circumstances.

The Bill already ensures that all domestic health protection regulations must be in relation to an infection or contamination that poses significant harm to human health. The judgment that Amendment No. 162 asks us to make is whether the

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infection that can cause significant harm to a human’s health is also one that could cause a wider public health threat. That may not be possible where the threat is new and the science is not yet available to assess its significance. For example, when SARS first emerged, there was little scientific evidence about how it was transmitted. It was clear that it was a danger to humans who were infected, but it was unclear how great the risk was to the public at large. Amendment No. 162 would require the degree of risk to be known before regulations could be made, and that could disempower Ministers putting in place precautionary or contingent measures that could save lives.

I turn to Amendment No. 166. The noble Baroness, Lady Stern, suggests that the existing provisions do not make it crystal clear that, while regulations cannot impose a special restriction or requirement for medical examination, detention, isolation or quarantine, they can enable the imposition of these requirements. I sympathise with that point. When drafting the provisions, it was not the intention to hide the fact that the regulations could enable the imposition of those measures in certain circumstances. To put this issue beyond doubt, let me state for the record that the regulations are intended to allow the imposition of medical examination, detention, quarantine or isolation when a decision-maker determines that such a measure is a proportionate response to a serious and imminent threat to public health. Furthermore, let me clarify that the decision-maker, who would be specified in regulations, would be the Secretary of State or Welsh Ministers, where that would be appropriate.

Amendment No. 166A seeks to remove the power of the Secretary of State or Welsh Ministers to confer functions through the international travel and domestic regulation-making power on persons other than the local authority. I shall explain how the power, which can be found at Section 45F(2)(a) of Part 3, could be used. During an incident similar to the SARS outbreak in 2002-03, this provision would allow the Secretary of State to enable doctors to make decisions about whether a patient should be quarantined. On a more day-to-day level, the provision would enable port health authorities to carry out the function of inspecting ships and awarding ship sanitation certificates, which is a requirement under the International Health Regulations 2005. I am sure that noble Lords will see why the provision is necessary.

Amendment No. 167 seeks to restrict the length of time that regulations directly imposing any of the “special restrictions or requirements” on people, things or premises can remain in force. It would require regulations containing such measures to lapse after six months. That might, in some cases, be appropriate for a measure involving a significant impact on a person’s private life. However, new Section 45C(3) allows regulations to be made imposing from the centre a “special restriction and requirement” to, for example, a category of premises. This could be quite a routine matter, needing to remain in force for a long time—for example, requiring all premises of a particular type to be regularly disinfected in a particular way. It would not be appropriate to take up Parliament’s time in having to remake such arrangements every six months.

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The second part of Amendment No. 167 would insert a new subsection (5B), which seeks to impose time restrictions of 14 days where the regulations enable the imposition of detention, quarantine or isolation by a designated decision-maker in the face of a “serious and imminent” threat. Fourteen days is half the quarantine period of some serious infectious diseases. For example, Hantavirus, a viral haemorrhagic fever spread by rodents, has an incubation period of two to four weeks and can be fatal.

As for how the legislation overlaps with the Civil Contingencies Act, the Bill will allow us to bridge the gap between voluntary compliance with public health measures and the use of more extreme civil contingency powers. The new provisions provide a set of powers specifically tailored for dealing with a significant threat to public health. They introduce specific safeguards and set out the type of provisions that might be made. Unlike the Civil Contingencies Act, regulations under the domestic regulation-making power can be made in advance of a serious and imminent situation so that they are in place as soon as it becomes necessary to invoke them. This gives organisations involved a clear understanding of what measures might be put in place when needed. The domestic regulation-making power also enables the Secretary of State to make regulations placing restrictions and requirements on individuals, things and premises before a threat becomes serious or widespread in order to prevent an emergency occurring. At the other end of the scale, these powers enable routine good housekeeping, such as systems for notifying specific cases of infection or contamination, which is quite outside the scope of the Civil Contingencies Act.

The noble Earl asked for some examples of the type of restrictions and requirements that the Secretary of State might impose and why. I have three examples. First, if a contaminated cargo was dispersed across the country, the powers would enable the Secretary of State to recall the cargo and require local authorities to track down those who had contact with the cargo and offer them medical advice. In my second example, if human-to-human transfer of avian flu became a greater likelihood, the Secretary of State might consider it a proportionate reaction to require all individuals working with poultry to wear protective clothing and undertake a decontamination regime at the end of their daily shift. This could reduce the spread of any infection to family and friends. Finally, if there was a large outbreak of SARS, the regulations could be used to empower hospitals to require all visitors to SARS patients to wear protective clothing to reduce the risk of onward spread.

6.45 pm

Baroness Tonge: I want to explore and get quite clear the relationship between the Civil Contingencies Act and these new regulations. Who starts things off? At what point do the local authorities say that something is too big for them to deal with and that the Secretary of State should take over? At what stage does the Secretary of State say to local authorities that they will have to invoke the Civil Contingencies Act? I do not quite understand the connection between the two and how, in practice, they will be implemented.

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Baroness Thornton: My understanding as a lay person is that the Civil Contingencies Act is there to deal with the gaps where there is no legislation to deal with civil contingencies. This Bill addresses issues of health protection. However, we will be coming to the group commencing with Amendment No. 198 that is all about the Civil Contingencies Act, and I shall have a very much fuller briefing note, which I hope will help to explain that.

Perhaps I may return to the question of “other people”, which was raised by several noble Lords. The regulations will specify the individual who can impose specific detention, isolation or quarantine. They will be scrutinised by Parliament under the affirmative procedure. Those people will mainly be doctors and health professional officials. I think that one noble Lord identified that those would be the “other people”, and that would indeed be the case.

Amendment No. 167 also requires that only a justice of the peace can renew and review a measure every seven days after the first 14 days. One purpose of Sections 45C and 45D is to provide central powers to deal with serious and imminent threats when it may be appropriate to enable a decision-maker other than a justice of the peace to take key decisions at the relevant time. The amendment would therefore undermine that purpose by reintroducing the role of a justice of the peace. The effect of that could be that, in a widespread emergency, justices of the peace could be overrun with applications that could better be determined by authorised officers applying centrally set criteria under carefully drafted regulations.

I hope that that answers the questions that have been raised and that the noble Earl will feel able to withdraw the amendment.

Earl Howe: There was one question that I do not think the noble Baroness answered, although I thank her for her reply. It concerns new Section 45D(3), which I understand says that the instances where personal freedoms are infringed the most may only be the subject of an order from a magistrate and may not be covered by regulations. That is where someone is being removed to a hospital or another place and detained, and so on. The Minister is welcome to write to me on that point if she would like to do so. Her answers were very helpful, and I am sure that all Members of the Committee will study them in some detail between now and the next stage of the Bill. I very much join the noble Baroness, Lady Stern, in the concerns that she expressed, and no doubt she is in the same camp as me on this. For now, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 162 not moved.]

Baroness Stern moved Amendment No. 163:

The noble Baroness said: Amendments Nos. 163 to 165 address the proportionality of health protection regulations. The Minister has already mentioned proportionality. As drafted, the Bill provides that any restrictions or requirements provided for by these

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regulations may be imposed only where the “appropriate Minister” considers that it is proportionate,

Similarly, where the regulations enable the imposition of restrictions or requirements, the decision-maker must consider that the imposition is,

The JCHR amendments would conclusively remove any subjective element from these provisions and require any restriction or requirements to be proportionate not only to the immediate aim of the policymaker imposing it but also to the risk to public health that it intends to meet. In my view, our amendments are a considerable improvement on the text which, when one reads it, seems to go round a little. I shall do what I think it is proportionate to do and I look forward to the Minister’s response. I am sure she will agree that our amendments are indeed a great improvement. I beg to move.

Baroness Finlay of Llandaff: Assessing risk is, ultimately, trying to predict an unknown. One of the difficulties when faced with some of the exotic infections—SARS has already been cited—is that it is effectively a guess in the dark because the true pathogenicity of those organisms will not emerge until some time later. I am concerned about being overly restrictive in the short term rather than taking a much more precautionary approach. I say that based on my contact with people who were involved in the SARS outbreak. I was full of admiration for the way in which the Hong Kong community managed to clamp down on its movements, including self-quarantine on the part of healthcare workers, who took a precautionary approach and voluntarily stayed on hospital premises, in isolation, before going home.

I am concerned that during the avian flu outbreak in turkeys here overalls were not being changed and cleaned by the people handling the turkeys at both ends of the transport line. There need to be powers to impose cautious behaviour because I fear that in this country we may not do as well as Hong Kong.

Baroness Thornton: New Section 45D(1) and (2) insert a safeguard into the domestic regulation-making power. That safeguard requires that where a person is imposing a restriction or requirement they must consider that the measure is proportionate to what is sought to be achieved by imposing it. Amendments Nos. 163 and 164 would remove from the provisions the fact that the person must consider it proportionate; instead, the provision would read that the measure must be proportionate. However, simply deleting the reference to the person making the judgment that the measure is proportionate does not change the fact that such a judgment has to be made by someone. Measures are not proportionate to the threat by themselves; someone must judge them to be so, as the noble Baroness, Lady Finlay, eloquently explained.

The amendment would force the person making the decision not only to consider whether he thought it was a proportionate thing to do, but also whether

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he thought every other person would also believe it was proportionate. How could he decide that with any certainty? For example, during the SARS outbreak in Canada, an entire hospital was closed and all the staff placed in working quarantine. People not yet infected with SARS were placed in quarantine along with people that were. Was that a proportionate measure? With hindsight, the World Health Organisation said that it was control measures such as those which stopped the SARS infection spreading. The person making the decision under new Section 45D must be reasonable and properly informed. That is the law.

Amendments Nos. 164 and 165 also seek to elaborate the factors to which the measure must be proportionate. The amendments require the measure to be proportionate not only to its own aim but also to the risk or threat that it is intended to address. There are two problems with that. First, the Minister or other decision-maker may not know the extent of the threat at the time when the decision must be made. However, because the decision may have to be made in the absence of firm evidence of the extent of the risk, it may be impossible at that time to be sure that the decision-maker has chosen proportionate risk at that time. There was a very helpful explanation from the noble Baroness, Lady Finlay, about that. Secondly, and in some ways more importantly, the measure is likely to be one step in a suite of measures aimed at removing or reducing a risk. In and of itself, the measure may not be proportionate to the magnitude of the threat. I hope that in the light of those explanations the noble Baroness, Lady Stern, will feel able to withdraw the amendment.

7 pm

Earl Howe: Before the noble Baroness decides what to do with her amendment, I have a question. Am I not right that if someone were minded to judicially review a decision under new Section 45D(1), the test would be whether the appropriate Minister had considered that the restriction or requirement was proportionate? That test does not say that the Minister must be satisfied, which is quite a strict test; it is simply a question of whether he or she considers that the restriction or requirement is proportionate. That is a pretty easy test to pass, whereas the noble Baroness’s amendment would be a stiffer test because it would be what the reasonable man or woman might say was proportionate to what was sought to be achieved. I do not want to put words into the noble Baroness’s mouth, but it seems to me that there is a distinct difference and that it is not right to say that it does not really matter what you have here and that someone has to make the judgment. It is true that someone has to make the judgment, but the test that a court would look at might be rather different.

Baroness Stern: I am most grateful to the noble Earl, Lord Howe, for understanding so clearly what the Joint Committee on Human Rights was saying and what I was struggling to convey. The more I listen to what is said, the more convinced I am that, when this matter goes back to the Joint Committee for discussion, the committee will probably feel that it is

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worth coming back to the issue and pressing it a little further. However, at the moment, I beg leave to withdraw the amendment.

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