Fast-track Legislation: Constitutional Implications and Safeguards - Constitution Committee Contents

Memorandum by Department of Health

  The Health and Social Care Act 2008 provides for a regime for dealing with a public health crisis.

Question 1:  Can you outline the rationale for the wide-ranging order-making powers contained in part 3 of the Act?

  1.  Part 3 of the Health and Social Care Act 2008 updates the existing powers in the Public Health (Control of Disease) Act 1984, by introducing a new Part 2A into the 1984 Act. The updates, when brought into force, will mean that a justice of the peace (JP) may make an order in relation to a person, premises or thing, which is, or may be, infected or contaminated, and orders in relation to tracing contacts with these persons, premises or things. Under the existing law a JP may only order the medical examination, removal to a hospital, or detention in hospital of a person with a "notifiable disease" (a listed disease that could present a human health risk). The new provisions focus on risk from infection or contamination (chemical or radiological) rather than on specific diseases, and are therefore more appropriate to deal with the threats of today's world.

  2.  The Committee refers to the new arrangements as "wide-ranging"—in fact they simply add less intrusive, more appropriate, alternative responses to the existing JP order-making powers. For example, it may be sufficient to order a person to stay at home, with monitoring from the community nursing service, rather than to order them to be detained in hospital. The new provisions enable the JP to make such an order.

  3.  The order-making powers enable action to be taken to deal with cases of infection or contamination presenting significant harm to human health, if and when they arise. Part 3 of the Act also allows regulations to be made imposing restrictions or requirements on a contingency basis, in the event of a serious and imminent threat to public health.

Question 2:  What safeguards exist to prevent misuse of these powers?

  4.  As well as the updated powers allowing JPs to order more proportional and appropriate action to protect human health, the new provisions also introduce extensive safeguards to ensure that the rights of the individuals, and any "affected persons" are protected. The JP must be satisfied that four criteria are fulfilled before they can make an order in relation to a person. These are that:

    — the individual is or may be infected or contaminated,

    — the infection or contamination is one which presents or could present significant harm to human health,

    — there is a risk that the individual might infect or contaminate others, and

    — it is necessary to make the order to remove or reduce that risk.

  5.  As required by the new provisions (section 45G(7)), the Department of Health is currently preparing regulations specifying what evidence is to be required to fulfil these criteria. A public consultation on a draft version of these regulations will be held later this year prior to their being laid before the House in accordance with the affirmative procedure which is required by section 45M.

  6.  The new Part 2A provides that "affected persons" may apply for variation or revocation of an order, and sets out who those persons are for each type of order. In the case of an order about a person, the person concerned, anyone with parental responsibility or a spouse or partner, or anyone living with the person as such, is an affected person.

  7.  Any JP order specifying that a person be detained in hospital or kept in isolation or quarantine is subject to a strict time limit of 28 days and may only be extended by a further order, under section 45L(3).

  8.  We believe that the Act's powers for JP orders are in accordance with the European Convention on Human Rights (ECHR). JP orders may engage article 8 (right to private life) and article 1, protocol 1 (protection of property) but interference with these rights can be justified under the terms of the ECHR where it is in accordance with the law and necessary for the protection of health (private life) or in the public interest (property). The necessity test which must be met before a JP makes an order assists in securing human rights compliance.

Question 3:  The JCHR recommended that these powers should be amended to reflect the safeguards and limitations of the Civil Contingencies Act 2004. Why was this recommendation not pursued?

  9.  Part 2A provides powers for regulations to be made in an emergency situation, to address a serious and imminent threat to public health. Regulations imposing restrictions or requirements can only be made under these powers if the appropriate Minister considers those restrictions or requirements to be proportionate to the intended effects. For all individuals who are subject to a special restriction or requirement under the regulations, there must be a right of appeal to a magistrates' court. (Some examples of a "special" restriction or requirement are those requiring the person to be detained in hospital, to be kept in quarantine, to submit to medical examination, or to be disinfected or decontaminated.)

  10.  Section 45R provides for an emergency parliamentary procedure in respect of regulations of this kind. The emergency procedure may only be used if the regulations contain a declaration that it is necessary to make them without the usual procedures applying, by reason of urgency.

  11.  The JCHR proposed amendments to the original Bill that were intended to align the procedures for such emergency legislation with those of the Civil Contingencies Act (CCA). Amendments to this effect were debated in the House of Lords, but were withdrawn. The reasons for the Government's case are given below.

  12.  In essence, the CCA provides that the Government may make certain emergency provisions by regulations, where there is an "emergency" as defined by the CCA. Regulations made under the CCA will lapse after seven days if not approved by Parliament. Parliament may make amendments to such regulations prior to approval. The provisions of the CCA provide that if regulations are made under it when Parliament is prorogued or adjourned for more than five days then Parliament must be recalled within that five day period to debate the regulations.

  13.  In contrast, any regulations made under section 45R would lapse after 28 days if not approved by Parliament (although they may be rejected earlier). There is no provision for amendment, only approval or rejection. The 28-day period does not apply when Parliament is prorogued, dissolved or adjourned, and section 45R does not require Parliament to be recalled to approve regulations made under it.

  14.  These differences are justified by the different objectives of the two pieces of legislation. A possible scenario would be where a SARS (severe acute respiratory syndrome)—type episode occurs in another country and the Government is advised by scientific and medical experts to put immediate measures in place to allow for quarantine, should the disease spread to England. Putting these measures in place does not mean they will need to be used instantly. They might be needed the very next day or they may not be used at all (as with the Canadian quarantine laws brought in to deal with SARS). Furthermore, a measure that is urgent will not necessarily be highly intrusive. For example, the measure might be a requirement that a person visiting another with a particular disease in hospital wear a mask.

  15.  Recalling Parliament to agree such measures would send the wrong signals to the public. In addition, the Speaker and Lord Speaker may not agree that an urgent recall to debate such regulations is necessary if there is a chance that the regulations may never be used. Nevertheless, it would be important that the provisions in the regulations were available.

  16.  The Government believes that 28 days will allow enough time to arrange a debate in each House even when the requirement specified by emergency regulations is urgent, yet minor in scope and effect. In such cases, debating whether the measure stays in force may not take priority over more pressing Parliamentary business.

  17.  There is no provision for amendment of regulations made under section 45R. If the Secretary of State were to decide that regulations were needed under this urgent procedure, the decision would be taken following discussion with experts in the relevant fields. Advice might be sought from experts at the Health Protection Agency, senior doctors and scientists, and the World Health Organisation. The regulations laid would seek to implement the measures recommended by these experts as necessary to deal with the public threat at hand. In such circumstances, Parliament should be asked to accept the measures in full or to reject them, rather than to amend expert advice.

Department of Health

March 2009

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