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22 May 2008 : Column GC602

12.30 pm

Baroness Howarth of Breckland: I apologise for being a little late. My committee was considering organ donation, so there are some comparisons in relation to the involvement of relatives. Our inquiry in Sub-Committee G of the European Union Committee shows the complexity of involving or not involving families. When it becomes a practicality, many of the questions identified so eloquently by the noble Earl will come to the fore. I hope that the Government will consider the question of, for example, who owns a dead body, as there is no legal definition. I am sure that relatives believe that they have some sort of ownership. I realise that all this is in the context of serious issues, but I am uneasy about a magistrate making a decision of such significance. My years in the Food Standards Agency taught me that there are some situations in which risk is paramount, although small. Who measures that risk and the balance of paramountcy against proportionality is crucial. It must be done by someone who understands the issues and can take such complex risk assessment decisions.

Lord Walton of Detchant: I shall come in on that point, although I am open to correction. I am glad that the noble Baroness raised the issue of the ownership of a dead body. When I was dean of a medical school, I used to receive what were called “body letters” regularly from people who wished to donate their bodies for dissection or medical research. I understand that in law the body of a deceased individual belongs to their executors. Will the Minister clarify that?

Baroness Finlay of Llandaff: This is simply a request for the Minister to clarify the relationship between these provisions and the Human Tissue Act. Will she also either clarify the position or consider tabling an amendment on a way of distinguishing between a containable problem, however severe, and an overwhelming catastrophe? People may behave in quite different ways. In an overwhelming national catastrophe, even finding a magistrate might be difficult, whereas, in a containable event, one would want families to have some right of appeal. The noble Earl, Lord Howe, has eloquently introduced the word “proportionality” into the discussion. I wonder whether it should feature in an amendment to the Bill to distinguish between these two extremes and the spectrum that lies between them.

Baroness Thornton: This is a discussion in two parts: it is about “things” and the important issue of destroying “things”. Under Section 45H, a justice of the peace can make an order in relation to a thing that is or is suspected of being infected or contaminated. Amendment No. 175A would replace the term “things” with the term “fomites”, which was a new one on me, so I spent a little time looking it up in various dictionaries—I never recommend Wikipedia as the most accurate place to look. I know that we do not see the term “thing” in Bills every day, but I can assure the noble Baroness, Lady Tonge, that parliamentary draftsmen are serious people. I questioned the word “thing”, too, and was assured that they had looked at every possible

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alternative but had decided that that was the only word, as no other term covered everything that needed to be covered. It is crucial that whatever term is used—

Baroness Tonge: Surely any word can be made to include whatever you want it to include if you define that word. By using the word “things”, the Government have tried to steer away from defining precisely what is meant. That still has to be done. The word that has been used makes things more difficult, not easier.

Baroness Thornton: I think that the noble Baroness is mistaken because in the Bill we have to legislate for things that we do not know about and for artefacts that we, as yet, cannot define. We do not want to find ourselves in the worst possible scenario, which is a justice of the peace finding himself powerless to act to protect public health because the term that we have used in the Bill is too specific. That is the point. I suppose that we could double the size of the Bill by trying to imagine what every single thing we would want to cover would be to satisfy the noble Baroness, but we still might miss out the one thing that that particular justice of the peace has to address himself to in particular circumstances.

The word “fomite” is a scientific term meaning an inanimate object capable of carrying infectious organisms. I am impressed by that suggestion, but I have been advised that the term is not commonly associated with things that have been contaminated by radioactive or chemical material. It would be questionable whether “fomite”—I think that noble Lords have already admitted this—could be extended to animals such as dogs, cats and chickens, which our Section 45H provisions cover. My worry is that using the term “fomite” could cause confusion about the extent of the powers and could make the law less accessible to the average person. In this case, we think that we are better off sticking to the everyday term “things”.

Baroness Masham of Ilton: Does the Minister agree that the words “person” and “thing” could be used? That might help the noble Baroness, Lady Tonge.

Baroness Thornton: The problem with adding words is that we still have the task of defining things. If between now and the end of the passage of Bill some noble Lord can come up with a word that does the job as well as we think “things” does, I ask them please to come and talk to us about it. I know that the noble Lord, Lord Walton, has already had a go at this, but noble Lords should feel free to have another go if they think that it might help. I am sure that the parliamentary draftsmen will be grateful if somebody can come up with something that they would find as acceptable.

Amendments Nos. 177 and 180 would remove the power of a justice of the peace to order the destruction of things or premises that may be infected or contaminated. The power to destroy things or premises is a necessary tool in public health protection because it is not always possible to disinfect or decontaminate articles and premises completely and effectively. It is not desirable to try to isolate permanently articles or premises that continue to pose a danger to public

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health. It is common practice, for example, for nurses to remove and incinerate the clothes of patients when they are contaminated with blood or could carry infection. It would not fit well with the new legislation to enable a justice of the peace to require an individual to undergo disinfection or decontamination but to remove from the justice of the peace the power to order the incineration of the individual’s contaminated clothing.

The noble Earl raised an important point about dead bodies. A dead body must pose a risk of significant harm to human health. The safety of the public is considered even in the Human Rights Act, which has certain qualifications for public health purposes. He has raised an important point and I am concerned that we should satisfy ourselves that all the safeguards are in place. Dead body provisions already exist in Section 45 of the 1984 Act. I will write to him to be clear on this sensitive issue. The Bill addresses it, because a justice of the peace can use the power to destroy a thing or a premise when it is necessary to remove or reduce the risk of infecting or contaminating humans. This provides an important safeguard that an individual’s right to his or her property is not interfered with unless there is a compelling need to do so to protect public health. However, I shall write in more detail to the noble Earl about this. I would like him to be completely satisfied that we are absolutely right about it. The noble Baroness, Lady Finlay, referred to the Human Tissue Act. I need to write to her about that, as she asked a legitimate question. We need to make sure that that, too, is covered.

The destruction of property would take place only in very exceptional cases. However, the JP can order it without giving notice. These powers are not completely new, because they build on powers in the 1984 Act—for example, the power to disinfect premises. Local authorities currently have these powers without judicial oversight. The Bill outlines judicial oversight and protection. I hope that the noble Baroness is satisfied that this is a sensible public health power and will agree to withdraw her amendment.

Baroness Tonge: I thank the Minister for her reply. I am not particularly hung up about the word “fomite”; it was just something that came into my head at the time. However, I am still unhappy about “thing” and “things”. Attempting to encompass absolutely everything that might conceivably happen in the future in one single word is more or less impossible. It makes the Bill look slightly ridiculous. There will be as much argument about whether something is a “thing” as that applies in the Bill as there would be if we used the term “item”, suggested by the noble Lord, Lord Walton, and then added those things that we wanted also to be included. The Minister may say that we might want to include Martians in the future—I do not know whether the Government have them in mind—but it is not inconceivable that, in decades to come, something unknown may occur that we feel is dangerous to public health. It is difficult to put all of this into a single word and the Government are wrong to try to do so. It needs more qualification. For the time being, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.



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12.45 pm

Baroness Tonge moved Amendment No. 175B:

The noble Baroness said: In moving the amendment, I pay tribute to the Local Government Association, which has done a tremendous amount of work on the Bill and has tried to help a great deal. I know that it welcomes the revision of the rather old-fashioned Public Health (Control of Disease) Act 1984, which allows councils to require the disinfection or destruction of articles and premises—everyone knows what they are—to prevent the spread of disease. We are concerned here not with people but with articles and premises. I still wonder why those words have to be deleted.

It is clear that the Bill has to be extended to include chemical, biological or radioactive contamination. I point out yet again that I do not understand the relationship between these provisions and the Civil Contingencies Act, where they merge, or who triggers action under that Act if it is felt that the actions being taken under this Bill are insufficient.

I am also puzzled about why councils, which for a long time have used experienced environmental health officers to trigger action on these matters, should now have to seek the approval of a JP. Although there seem to be an awful lot of them, most of these amendments would just substitute the words “an authorised officer” for “a justice of the peace” and “notice” for “order”—an authorised officer would issue a notice rather than an order. Most of the amendments relate to that. The main amendment relates to what would happen afterwards.

It is felt by local government that having to get hold of a justice of the peace will cause a lot of delay, although I confess to being unsure about that. Furthermore, the environmental officers in this country are a distinguished body of people and are very capable of knowing when there is an emergency in their area and how they should deal with it. It is a slight insult to them that they have to seek the approval of a JP before they can act. Certainly it could be done afterwards, to get approval for the action having been taken, but I believe that to have to seek approval in the first place is unnecessary. One has only to look at Westminster City Council and how the environmental health officers acted in the case of Alexander Litvinenko. Some 45 sites in London were actually or potentially contaminated by polonium-210. It was a huge undertaking but the officers did it extremely efficiently and the public were very grateful to them for how they acted.

Our amendment would remove the reference to “a justice of the peace” and replace it with “an authorised officer” of a local authority. An “order” would therefore be replaced by a “notice”. Once the action had begun, Amendment No. 178B, which is also in this grouping, would come into action. It involves the local authority officer going along to the justice of the peace to get authorisation for further action. I shall not read out all the detail, as it is clear in the amendment. I beg to move.

Baroness Thornton: Under Clause 123, a justice of the peace has the power, following an application from a local authority, to make an order placing requirements

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or restrictions on a thing or premises that is, or is suspected of being, infected or contaminated. This group of amendments would create a power for a local authority officer to place requirements or restrictions on things or premises prior to any ruling by a justice of the peace. I will deal with the general principles and issues behind the amendments before making some specific points.

To begin with, we think it crucial that, when a local authority wishes to isolate a private dwelling or destroy a person’s possessions, even when that is in the interests of public health, there should be independent judicial oversight. The Joint Committee on Human Rights welcomed the Government’s decision to increase the involvement of justices of the peace in the decisions that local authorities take in relation to public health measures. The Local Government Association, with which officials have met and with which there have been many exchanges of letters—I put one of those letters around the Committee yesterday—has expressed concern that having to apply to a justice of the peace to obtain such an order could cause delay and will lead to additional bureaucracy. Although I understand why noble Lords have felt it necessary to raise these issues, I think that the concerns of the Local Government Association are unfounded.

The Bill extends these powers to contamination. The LGA has suggested that having to apply to a justice of the peace for an order would make it difficult to deal with a situation like the Alexander Litvinenko contamination incident, where 47 premises needed to be inspected. However, the provisions in the Bill are not intended to replace the existing powers of the local authority to enter and inspect premises under health and safety, food safety or environmental health legislation. It is important to put that on the record. They are intended to enhance those powers, especially where the existing legislation may be weak—for example, with regard to private dwellings, where in the Alexander Litvinenko case the local authority needed co-operation rather than powers. Local authorities will be able to choose the most appropriate legislation to support whatever action they judge it necessary to take.

In the Litvinenko case, the local authority had to rely on several different pieces of legislation, as well as voluntary co-operation, to enter and secure several premises. Nothing in the Health and Social Care Bill will prevent them from using those provisions again if that is the most appropriate way to deal with the situation. However, the Bill provides a coherent legislative basis for future cases, where gaps in existing legislation might be more problematic.

The LGA has said that Clause 123 would force the local authority at great expense to apply individually for 47 separate orders. That is incorrect. If the local authority chose to use the provisions in the Bill, new Section 45J would allow it to seek a single group order for all premises relating to a single contamination incident. I hope that that will lay to rest any concerns that local government may have about bureaucracy.

When we look at the detail of the provisions proposed in these amendments, it appears that a local authority would have the power to “close” a person’s home for up to three days without independent judicial oversight.

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Amendment No. 181A would make it a crime for the owner to enter their own home if the notice said that they should not. We cannot support that.

The amendments are similar to the powers set out in health and safety and food safety legislation. However, health and safety legislation and food safety legislation have a different basis from public health legislation. For example, standards for food safety are set out in legislation. When an inspector enters premises, it is to see whether the standards have been breached. In other words, the local authority is entering to see whether a crime has been committed. The owner knows what standards they should be upholding. It is therefore appropriate that the local authority can instantly serve a notice where those standards are not being met.

By contrast, it is not a crime under our public health legislation to have the misfortune to possess infected or contaminated things or premises. When a local authority suspects that there is a public health risk, it is not enforcing statutory standards but acting in the interests of public health. Any measures taken must be appropriately weighed against the rights of the individual. That is why we believe that it is appropriate that the decision to place restrictions or requirements on things and premises should be left with a justice of the peace.

The noble Baroness again referred to the Civil Contingencies Act 2004. Section 21(3) makes it clear that emergency regulations under the CCA should be made only where existing legislation cannot be relied on. I think that that will probably not satisfy the noble Baroness. Therefore, I undertake to write a longer letter that outlines and precisely answers her question. With that, I hope that the noble Baroness, Lady Tonge, will be able to withdraw the amendment.

Baroness Tonge: I thank the Minister for that extremely helpful and clear response. I will welcome the letter on the Civil Contingencies Act because the matter keeps me awake at night. I really do not understand the connection. I thank the Minister for that. I hope that her clear response satisfies the Local Government Association. It has certainly satisfied me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 175C to 192 not moved.]

Baroness Thornton moved Amendments Nos. 193 and 194:

(d) the first regulations to be made under section 45N.”

On Question, amendments agreed to.

[Amendment No. 195 not moved.]

1 pm

Baroness Murphy had given notice of her intention to move Amendment No. 196:



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The noble Baroness said: I shall speak to Amendments Nos. 198 to 203 standing in the name of my noble friend Lady Stern. Amendment No. 196 was referred to during the discussion on a previous group of amendments and therefore I am addressing only Amendments Nos. 198 to 203. The amendments are suggested by the Joint Committee on Human Rights.

The purpose of the amendments is to amend the proposed emergency procedure for the introduction of health protection regulations to allow for increased parliamentary oversight. This meets the Joint Committee’s concerns that the current emergency procedure is based not on any defined emergency but on the relevant Minister’s opinion that there is a need for urgency. This assessment could lead to the health protection regulations enabling the detention, isolation and quarantine of individuals without parliamentary authorisation for a significant period of time. The committee expressed its concerns that the proposals in the Bill could lead to emergency health protection regulations, enabling compulsory medical examinations, detention, isolation and quarantine, coming into force in late July, for example, just at the start of the long Recess, and that these would remain in place until November without the need for parliamentary recall. This was noted in the committee’s 12th report at paragraphs 1.42 and 1.43.

In their response, the Government explained that they understood the committee’s concerns but that,

They went on to explain that they would not support a proposal that the amending process envisaged in the Civil Contingencies Act 2004 should apply to the urgent health protection regulations, as these could be “technical” and based on,

The Government explained that they did not think that it would be appropriate for these types of urgent regulations to be amended on a political rather than scientific basis.

The Government’s response does not meet the committee’s concerns that these proposals could lead to administrative detention of individuals for potentially lengthy periods of time without parliamentary oversight. While the Government’s response focuses on the need for urgent, basic administrative action based on international advice, it fails to engage with the committee’s real concerns about the public health emergency where detention, isolation and quarantine may be ordered by an as yet unidentified decision-maker.

Can the Minister explain why, in the circumstances that Ministers have previously highlighted, such as an outbreak of SARS or Ebola or a similarly life-threatening illness, the potentially draconian steps of enabling administrative detention, isolation or quarantine should not be subject to parliamentary oversight on the same terms as the Civil Contingencies Act? I was not present throughout the whole of the debate on the previous group of amendments and therefore I apologise if this

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matter was addressed then. The question is: why is there a lesser requirement in this Act than there is in the Civil Contingencies Act?

[Amendment No. 196 not moved.]

Baroness Thornton moved Amendment No. 197:


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