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Amendment, by leave, withdrawn.

[Amendments Nos. 164 to 167 not moved.]

Baroness Stern moved Amendment No. 168:

The noble Baroness said: This amendment addresses the question of the rights of review. The Joint Committee on Human Rights very much welcomed the right of appeal against the imposition of any special restrictions or requirements. The Bill also proposes that there will be a right of review in respect of the continuation of any special restrictions or requirements imposed as a result of the operation of health protection regulations. In our report, we expressed concern that there was very little detail in the Bill about how these rights would work in practice.

The amendment would require a periodic review by a magistrates’ court in respect of any special restriction or requirement that continued under any health protection regulations. It is a probing amendment. The Government have explained that, without knowing the specific situations that regulations may be needed to address, it is difficult to provide appropriately for those safeguards in the Bill. For example, it is likely that it would be appropriate for a periodic review to be carried out by the same authority that placed the initial restriction or requirement on the individual. However, that will vary depending on the situation.

In the view of the Joint Committee on Human Rights, many details relating to the operation of the review and appeals process are left to be determined by secondary legislation. Therefore, I am taking the opportunity provided by this amendment to ask the Minister how the Government envisage that this review process will operate in practice. Can she tell us, for example, whether the process will generally be independent of the procedures for appeal? Can she confirm that individuals subject to a special restriction or requirement will have an appeal directly against decisions made under health protection regulations and will not have to wait for the outcome of any periodic review? Would an individual or his or her representatives be invited to make representations to the review? Will there be a further appeal against the outcome of a periodic review? I hope that the Minister can provide some answers to these questions. Also in this group are Amendments Nos. 186, 187, 189 and 190, and I shall refer to Amendment No. 195, although it is in a later grouping. These amendments concern the duration of public health orders. They are also probing amendments to open up a debate on the proposals on the duration of public health orders made by JPs. Amendment No. 186 will reduce the current proposed maximum period for detention, isolation and quarantine from 28 days to 14 days. At present, there is no maximum period for any order relating to other restrictions or requirements, including requirements which may prevent an individual seeing other people or working or which may require

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an individual to attend training or that his health be monitored. The Bill provides for no maximum period for these orders, but leaves that to the discretion of the relevant Minister who may set a maximum. Can the Minister explain why that is appropriate? Amendment No. 187 provides that any public health order imposing a restriction or requirement may not last longer than 28 days. A further order may extend that.

The Bill provides that the relevant Minister may set the maximum period for which a JP may renew or extend any order imposing restrictions or requirements. Amendments Nos. 188 and 190, suggested by the Joint Committee, would remove the power to set maximum periods for renewal of orders for detention, isolation and quarantine from the relevant Minister. That Minister would retain the power to set the maximum periods for renewal for restrictions and requirements. Amendment No. 190 would require any public health order involving detention, isolation or quarantine to be reviewed by a JP every seven days after the expiry of the initial period of the order. Amendment No. 195 would require any regulations setting maximum periods for public health orders or extensions to them to be subject to affirmative resolution.

These amendments spring from the Joint Committee’s concern that, as drafted, the Bill could potentially subject individuals to detention on the basis of 28-day orders that could continually be extended or renewed by JPs. Can the Minister explain how the Government envisage that these orders will operate in practice and their likely duration in particular cases? Could she give examples where detention, isolation or quarantine will be necessary for longer than 28 days? Although the relevant Minister is empowered to set a maximum period for detention, isolation or quarantine, or for the imposition of other restrictions or requirements, the Minister is not required to do so.

The Joint Committee’s concerns relate to the following questions. Why is a 28-day initial period appropriate for orders permitting detention, isolation and quarantine? Why is it appropriate to leave the maximum period for all other restrictions and requirements to administrative discretion? Why is it appropriate to leave the maximum period that a person may spend in detention, isolation or quarantine to administrative discretion, subject to the oversight of a JP? I hope that the Minister can provide some reassurance on all those points. I beg to move.

Earl Howe: I support the amendments that were so ably spoken to by the noble Baroness, Lady Stern. My comments will closely reflect her concerns. My Amendments Nos. 184, 185, 188 and 191 in the group also concern orders made by magistrates. New Section 45L proposes that when a magistrate makes an order for a person to be detained in hospital or another suitable establishment, or to be kept in isolation or quarantine, the period for which the person can be kept locked up can be as long as 28 days.

Under new subsection (2), that period may be extended by further order of a JP for a period to be determined in regulations. I share the noble Baroness’s concern; this is not satisfactory, as 28 days is a long time during which to detain someone who

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has done nothing wrong and who does not need treatment for a mental illness under the Mental Health Act. Of course, I understand that the incubation period for certain diseases may be three or four weeks. However, I believe we owe it to anyone whose detention is thought necessary only in order to protect the general population to review the initial detention order at much shorter intervals than 28 days. The amendment proposes every seven days—it could be every 14 days—but the intention here is that the order could be renewed for as long as may be justified by the evidence of risk.

What I am unclear about—and perhaps the Minister could tell us—is whether the extension referred to in new Section 45L(2) is a once-only extension or an extension which may itself be extended once the specified period elapses. The wording is by no means clear here, though the Explanatory Notes suggest that the extensions can if necessary continue indefinitely. I do not have a particular problem with that idea, but I think that the court should have to review the order at frequent intervals. I am not aware of what maximum period the Government are going to specify for any extension of a Part 2A order, and that leaves me feeling very apprehensive. Even if the Minister were to get up and say that the Government intended to make the period seven days, I would be apprehensive, because that period could be changed by any future set of Ministers in a new set of regulations. However, I fear that the maximum extension allowed will be longer than this. I see no reason why that maximum period should not be specified on the face of the Bill, as opposed to secondary legislation. In fact I think it would be infinitely preferable.

Finally, Amendment No. 191 would provide that where an application was made to vary or revoke a Part 2A order, the relevant hearing should take place promptly. If, for example, someone is quarantined under a Part 2A order on the grounds that they are suspected of having viral haemorrhagic fever, and it then turns out that they do not, and that they are not a danger to others at all, it is unacceptable for the person to be kept in continued isolation for more than the shortest possible time. I hope that the Minister will consider this proposal very carefully, as it is not unknown for appeals to a magistrate to be deferred and delayed. A delay may not matter for some kinds of appeal, but when someone's liberty has been taken away through no fault of their own, it matters very much.

Baroness Finlay of Llandaff: I add my support to the principle behind this group of amendments. While I can see that you need to be able to act very quickly with a precautionary approach when somebody’s liberty has been removed, I have a concern that they might languish and almost be forgotten about in the system, particularly if there are a lot of other people involved. If it is just one patient, a review is much more likely; but if several hundred people were being held in quarantine, I can see how some poor person might get missed out in the system if there was no forced review time. That is simply because of the human nature of pressures on staff.

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7.15 pm

Baroness Thornton: New Section 45L(3) of Clause 123 sets the maximum time for which a justice of the peace can order initial detention, isolation or quarantine of an individual. The maximum period is 28 days.

Amendments Nos. 185 and 186 seek to reduce that period to seven days and 14 days respectively, and Amendments Nos. 190 and 184 seek to reduce any further extension of the period to intervals of seven days. I understand the need to ensure that these powers are not wider than necessary, but 28 days was not an arbitrary choice. It was chosen because it covers the maximum incubation period for most known diseases that are highly transmissible. Lassa fever has an incubation period of up to 21 days and is highly contagious as soon as symptoms appear. Therefore, if the maximum initial period was less than 22 days an individual might not be showing symptoms at the point when the order ran out. A 28-day maximum allows for symptoms to show and supportive treatment to begin, at which point an individual may decide to co-operate voluntarily, thereby removing the need to seek an extension to the order. A period of seven or 14 days would not cover the incubation period of some diseases.

Twenty-eight days is the maximum period available for detention, isolation or quarantine orders. That does not mean that a justice of the peace is obliged to order that an individual be detained for that period. The justice of the peace, by virtue of new Section 45G, may make an order only if he believes that it is necessary to do so in order to remove or reduce the risk to others. Therefore, if the incubation period for a particular disease was known to be only a few days, it would not be necessary to make an order extending for 28 days. This system gives the justice of the peace the flexibility to make a decision on a case-by-case basis and to set the period most effective for removing or reducing the risk while ensuring rigorous attention to the necessity and proportionality of the measures taken. I understand noble Lords’ concerns, and one thing I can look at again is whether we should ensure that extensions to orders allowing detention, isolation and quarantine should also be restricted to periods no longer than 28 days.

Amendments Nos. 187 and 188 aim to restrict the period of an order for less intrusive measures to 28 days. That is not practical. For example, if an individual who works with food is found to be infected with typhoid or E.coli, an order can be made requiring him to stay off work. The length of the order will normally be related to the length of time it takes, following treatment, to produce two clear stool samples. Samples will be checked regularly. However, producing two clear samples may take longer than 28 days. It would be unnecessary, if the individual is still found to be infectious, to require a review by a justice of the peace at 28 days.

Amendment No. 191 seeks to ensure that where an application is made to vary or revoke an order made by a justice of the peace under new Sections 45G, 45H or 45I, the application is heard within two working days of it being made. I sympathise with this

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amendment. It is right that a hearing should be speedy, especially where the order will involve the detention or isolation of an individual. However, Amendment No. 191 is very rigid. It would require a hearing to take place even where it would not be sensible to do so within the given timeframe. For example, if an individual has been quarantined under an order from a justice of the peace and doctors are carrying out tests to determine whether the individual is suffering from a particular disease, it would not be sensible to require a hearing before the test results had been obtained, which might take longer than two working days. Requiring the hearing to take place regardless of whether the relevant evidence is available would be a waste of everybody’s time and valuable resources.

Amendment No. 168 seeks to ensure that where a review of an ongoing special restriction or requirement is necessary, it can be conducted only by a magistrates’ court. We do not specify in the legislation who should carry out the review. The appropriate individual to carry out the review will vary depending on the situation. It will not always be appropriate or necessary for regulations to require the involvement of a justice of the peace. For example, the Secretary of State could make a requirement that, following incidents involving a particular contaminant, property involved should be closed until repeat disinfection measures can be carried out. The best individual to carry out a review of whether the premises had been successfully disinfected to a standard that no longer posed a public health risk would most likely be a scientist who could take a sample and test it. If the sample was clear, the restrictions on the premises could be lifted. There would be no need to involve the magistrates.

The noble Earl, Lord Howe, raised the issue of risk. We will discuss with the Justices’ Clerks’ Society and magistrates how best to ensure prompt appeals. The noble Baroness, Lady Stern, raised the issue of how the review process will work in regulations and whether there will be an independent appeal process. The review process will always be independent because the appeal is always made to a magistrates’ court. New Section 45L extensions are repeat extensions, but we will be putting time limits on each renewal.

Amendment No.195, to which the noble Baroness, Lady Stern, referred, would require that regulations regarding the length of an order or an extension of it followed the affirmative process. The Delegated Powers Committee did not recommend that these regulations were made using the affirmative process. The Government have accepted the recommendations of the Delegated Powers Committee in full, but I can look again at whether a compromise can be found, whereby new Section 45L(4) is brought into line with the recommendation from the DPC regarding new Section 45N, which is that the first version of the regulations would follow the affirmative procedure. I hope that in the light of the reasons I have given on why the Bill is drafted is this way, and the promises I have made to look at certain parts of it, the noble Baroness will withdraw the amendment.

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Baroness Stern: I am grateful to the Minister for her helpful answer and for agreeing to take away matters and look at them again. The JCHR thinks that this is a very important area because it is about people’s liberty and no doubt there will be further discussions. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 169:

“(ba) the infection or contamination is of a kind which may be transmitted from person to person through casual contact with a person, a thing or premises,”

The noble Earl said: I admit immediately that Amendment No. 169 is not anywhere near as perfect as it should be. It has been prompted by concerns raised by the National AIDS Trust. I shall speak also to Amendments Nos. 182 and 192.

One of the consequences of adopting an all-hazards approach to public health legislation is that the language used in the drafting inevitably has to be all-purpose, the result of which is that it sweeps up absolutely everything in its path. In some instances that is not appropriate. The National AIDS Trust has pointed out—and I agree with it—that it would be quite wrong for this legislation to be applied, as it seems that it could be, to individuals who are suffering from an HIV infection.

The powers that are laid out in this part of the Bill are of greatest relevance in relation to serious contagious diseases that are spread by casual everyday contact. SARS and avian flu, as well as potentially deadly conditions such as viral haemorrhagic fever, need to be contained and dealt with in a manner appropriate to the risk that they pose to the general population. The powers necessary to deal with a real health emergency of that kind need to be flexible and extensive.

It is not, however, apparent that such powers should be applied to infections such as HIV, which are not transmissible through everyday or casual contact. The causal chain for transmitting HIV includes steps that require conscious human decisions and actions by both parties, on top of which the risk of transmission from a single exposure is extremely low. To this must be added the issue of stigma. The history of HIV and its spread across the world shows that the mistakes made by Governments have resulted either from inaction or tackling the threat in the wrong way.

This part of the Bill provides significant coercive powers that could in theory be applied to an HIV sufferer. Coercion has never been effective in dealing with the spread of HIV. Once you start coercing people, or threatening coercion, you immediately feed the fear and stigma that make HIV so difficult to address and you do not achieve what is most needed, which is people coming forward of their own accord to be treated while there is still time. I hope that the Minister can provide some reassurance to the Committee on this dimension of the provisions.

Amendment No. 192 has also arisen from a concern of the National AIDS Trust but I have taken a slightly different route from the one it suggested to me. The course which it was keen for us to consider

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was the one proposed by the noble Baroness, Lady Barker, in Amendment No. 175. The issue here is the need for a mechanism whereby Part 2A orders are reported as a matter of course to a central body. That is appropriate not only in order for there to be national surveillance and advice in the event of an emergency, but also as a safeguard against wrongful use of the powers of removal and detention that are vested in JPs. There needs to be transparency in the way that these powers are actually being used to make sure that they are being applied proportionately and to good effect.

Perhaps rashly, I have been rather more prescriptive than the noble Baroness by suggesting that only one central body is appropriate for this purpose—that is, the Health Protection Agency. I have also suggested that a local authority should have a duty to report to the HPA as soon as it makes the application for an order and not simply when an order is granted. As the noble Baroness, Lady Barker, is not in her place, I am sure that the noble Baroness, Lady Tonge, will be able to expand on this theme more capably than I, but it is something the Government should consider closely.

Turning finally, and very briefly, to Amendment No. 182, I draw the Committee’s attention to the wording in proposed new Section 45K(2). It states:

I ask very simply what this could mean. On the face of things, the provision is extremely sweeping and it is not surprising that, again, the National AIDS Trust has expressed concern about it. One could envisage a situation where a magistrate has ordered a person’s removal and detention, as well as the whole panoply of measures listed in new Section 45G(2).

On top of all this, the magistrate is entitled to do anything else at all if he considers it necessary for the purpose of reducing or removing the risk in question. Can the Minister say whether this might include requiring the person to undergo medical treatment? We see in new Section 45E that regulations may not include such a provision but there is no corresponding limitation on the power of a magistrate. It would be helpful to hear from the Minister whether she is satisfied that this part of the clause, all encompassing as it seems to be, is fully consistent with the European Convention on Human Rights and with WHO guidelines. I beg to move.

Baroness Stern: I would like briefly to speak to Amendments Nos. 173 and 174. Amendment No. 173 concerns the proportionality of detention under public health orders. The Bill proposes that JPs may only make such orders as are necessary in order to remove or reduce a risk of infection or contamination. This will involve the application of a proportionality test. Our Amendment No. 173 will prevent a JP making an order involving detention, isolation or quarantine unless he or she is satisfied that no other restrictions or requirements would be capable of reducing or removing the risk posed to public health. This makes it clear beyond doubt that in order to be proportionate, and

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therefore necessary, measures which involve detention, isolation or quarantine may be imposed only when all other measures are considered inadequate to meet the risk to public health.

In the current provisions of the Public Health Act, the statutory language indicates that other steps must be considered before detention of an individual is considered appropriate. This reflects the approach of the European Court of Human Rights to detention for the purpose of preventing the spread of disease.

The Joint Committee expressed its concern in its report that at present there is no similar direction in the Bill. The Government explained in their response to the JCHR that they had,

but had some concern about the term “last resort”, which was used in the committee’s report.

The Minster explained that the Government were concerned that unnecessary delay might occur in certain cases if the possibility of detention, isolation and quarantine were limited to the last resort and that a necessity test was more appropriate. We welcome the Government’s acceptance of the principle behind the JCHR’s conclusion. Our proposed amendment does not refer to the last resort and we therefore hope that the Government will find it acceptable.

Amendment No. 174 covers the need for objective medical evidence. The Bill provides for the relevant Minister—either the Secretary of State or the Welsh Assembly Minister in Wales—to make regulations in relation to the evidence which a JP must consider before making a public health order. The amendment requires that those regulations include a requirement for objective medical evidence.

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