Following his article covering the “New Legal Powers to Detain ‘Potentially Infectious’ People“, BCL partner John Binns comments on the potential issues within the coronavirus act.
The nature and the urgency of the current crisis meant that the provisions of the Coronavirus Act 2020 were rushed through Parliament with hardly any scrutiny at all. While understandable, this lack of rigour is particularly important in the context of powers to detain people who are ‘potentially infectious’, which contain a number of dangerous ambiguities.
What does ‘potentially infectious’ mean?
One key ambiguity is in what ‘potentially infectious’ means. Certainly, it includes people who are, ‘or may be’ infected with the virus, where ‘there is a risk’ they may also infect others (as well as anyone who has been in an ‘infected area’ abroad within the last two weeks – an increasingly rare category, of course). But who decides whether there are ‘reasonable grounds to suspect’ that a person ‘may be’ infected, and whether ‘there is a risk’ of infecting others?
The answer is a potentially vast range of people, which – as well as police constables and immigration officers – includes qualified public health consultants, but also any other ‘officer of the Secretary of the State’ who has been ‘designated’ by him or her for that purpose. This means that unlike, say, arrest for a criminal offence or detention under the Mental Health Act, the powers here can be exercised by people who do not have to have any qualifications or training (though we may presume that they will at least be provided with the latter).
What is ‘necessary and proportionate’?
A related ambiguity is in when it will be deemed ‘necessary and proportionate’ to detain such people, first for ‘screening and assessment’, and then further, potentially in isolation and/or subject to other requirements or restrictions, depending on the results of that process. The phrasing seems designed to be compatible with the Human Rights Act, which requires measures like this to be proportionate to the ‘legitimate aim’ of the law in question – expressed to be to ‘manage the effects’ of the pandemic, including our ‘reduced workforce’ and ‘increased pressure on health services’.
The importance of guidance
This also means that the guidance produced on these questions (which the Act says those exercising the powers must take into account) by the Secretary of State will matter a great deal – but again, the Act provides for no parliamentary scrutiny. Would it be open to the government to say, for instance, that anyone not observing the latest version of ‘social distancing’ or ‘lockdown’ measures should be deemed ‘potentially infectious’, or that the detention of people who particularly threaten to infect health or other ‘key’ workers should be deemed ‘necessary and proportionate’?
What is a ‘suitable’ place?
There is also ambiguity about precisely where a ‘potentially infectious’ person will be taken if it is deemed ‘necessary and proportionate’ to do so. The Act talks about a place ‘suitable for screening and assessment’, without specifying what such a place might be (the regulations that preceded the Act at least talked of ‘a hospital or other suitable place’). The facilities, locations, and safety of such places will matter a great deal, not least to those who will work there and are taken there. Where will they be?
For how long can people be detained?
Finally, there are ambiguities about timescales. The Act says the initial detention (for ‘screening and assessment’) can be for up to 48 hours, although if the person is moved to another ‘suitable’ place (where this is considered ‘appropriate’ – presumably because the first place turns out not to be ‘suitable’, though the Act does not specify) then the clock starts again. There is then a 14-day limit on further restrictions or requirements, including detention, but this can be extended for up to another 14 days, and the extended limit does not (oddly) apply where the person is kept in isolation.
The scrutiny of the courts
We do not yet know the detail of how these provisions will work in practice. For people detained beyond that initial 48 hours, the Act provides for an appeal (albeit, in practice, doubtless by telephone), but to a magistrate, a class of person not famously known for doubting the judgements of public servants. In due course, no doubt, these ambiguities will be escalated to the higher courts, where the hard questions of how to balance our liberties and our safety will receive more considered attention.
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