The government has passed new regulations to help curb the spread of coronavirus which have the potential to severely curtail individual rights and freedoms.
The regulations apply in England only and give authorities the power to force individuals into isolation if they are considered to present a risk of spreading coronavirus.
What are the regulations?
The Health Protection (coronavirus) Regulations 2020 were passed on 10 February 2020. They have been made under the Public Health (Control of Diseases) Act 1984, which grants the Health Secretary powers to stop illnesses spreading.
They were made without a draft being laid and approved by Parliament and came into effect immediately. This was permitted because the Secretary of State for Health and Social Care, Matt Hancock, declared that measures were required quickly to respond to the threat to human health from coronavirus. For the regulations to apply, the Department of Health and Social Care has to declare the outbreak to be a 'serious and imminent' threat to the British public. This declaration was made on 10 February.
As of 18 February, nine people in England have tested positive for coronavirus out of a total of 4,916 people who have been tested. Isolation facilities have been set up in the Wirral and Milton Keynes as well as other places in the country.
Can you refuse to be detained or isolated?
The regulations allow the Secretary of State or a registered public health consultant to impose requirements to detain or isolate people where there are reasonable grounds to believe they are infected or risk infecting or contaminating others with coronavirus.
The regulations also give the Secretary of State the power to impose 'screening requirements', obliging people to provide samples, produce documents and answer questions. There is a power to detain a person for 48 hours or while this screening takes place. The regulations also create a power to restrict a person's travel and other activities and to restrict a person's contact with specified people where 'necessary and proportionate' to reduce the risk of them infecting others.
The police are given power under Regulation 13 to enforce the regulations where a person is not willing to be isolated voluntarily – they can use 'reasonable force' to take a person to isolation and to keep a person in detention or isolation. An isolated or detained individual will not be free to leave.
A person who does not comply with measures imposed under the regulations commits a criminal offence punishable by a fine of up to £1,000.
A moral and legal dilemma
Matt Hancock, in a statement that he delivered to Parliament on 11 February 2020, said "the powers are proportionate and will help us slow down the transmission of the virus". He described them as part of the government's "belt and braces approach to protecting the public".
The government had to make a difficult decision, balancing restrictions on individual freedoms against the need to protect the health of the general population. The longer the government waited to impose quarantine measures, the greater the chances were that infectious individuals would spread the virus. On the flip side, the earlier the measures are imposed the less likely it is that there will be widespread appreciation of the risk the virus poses. Should there be a widespread outbreak of the virus in England, the government action is likely to be viewed favourably. But until then, the measures raise speculation as to whether they are proportionate or whether the risk of the virus is exaggerated.
Challenging the regulations – scope for appeal and judicial review
A person subject to compulsory detention or other measures imposed under the regulations can, under Regulation 12, appeal to the Magistrates' Court against the decision to impose the restriction. It remains to be seen whether such appeals can be heard quickly, particularly where the appellant is in detention.
It also seems likely that decisions to impose restrictions in individual cases will generate challenges as to their proportionality, by way of judicial review and/or under the Human Rights Act 1998. There are also powers in the regulations which envisage the detention of children, which could present its own issues.
There is also scope for the lawfulness of the decision of the Secretary of State to make the regulations themselves to be challenged by way of judicial review. This would require the Court to evaluate the Secretary of State's determination that coronavirus poses a 'serious and imminent' threat to the public and consider whether regulations that impose severe restrictions on individuals' rights are justified and proportionate in light of that threat.