The almost 330-page Coronavirus Bill 2020 was published on Thursday 19 March 2020 and is likely to become law on Thursday 26 March. It will contain a 6-month sunset clause but may be renewed. The key parts of the Bill from the point of view of policing are Schedule 20 – which deals with powers relating to potentially infected persons – and Schedule 21 – which deals with powers to restrict events, gatherings and premises. This article provides a summary of the police powers and duties. They may change in the light of the Prime Minister’s televised national address on the evening of Monday 23 March.
Schedule 20 – potentially infected persons
Revocation of the Coronavirus Regulations
Paragraph 24 revokes the very recent Health Protection (Coronavirus) Regulations 2020, made at 0650 hours on 10 February 2020 but the infected areas designated by the Secretary of State (Wuhan and Hubei province) will carry over to the Coronavirus Act. Further infected areas (including within the UK) may be declared by the Secretary of State under Paragraph 2 by publishing them online and publishing them in the London Gazette shortly thereafter.
Activation and deactivation of powers
The intention is that, like Schedule 21, the Secretary of State in relation to England (or Scottish or Welsh Ministers or Department of Health in Northern Ireland) will be able to switch its powers on or off at will by making a Paragraph 4 declaration (online and thereafter published in the London Gazette) that:
“the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health in England, and the powers conferred by Schedule 20 will be an effective means of delaying or preventing significant further transmission”.
Such a declaration starts the “transmission control period” which is ended by the revocation of the declaration (published online etc.), which ‘turns off’ the Schedule 20 powers and ends obligations and restrictions made under it.
The declaration made under Health Protection (Coronavirus) Regulations 2020 shall initially continue in effect, so that the Schedule will immediately be in force.
Screening and Assessment
That gives the power (Paragraph 6) to public health officers to (1) direct a person whom he has reasonable grounds to suspect to be potentially infectious to go immediately to a specified place for screening and assessment, (2) to remove the person to such a place or (3) to request, but not instruct, a constable to remove a person to such a place.
As with any power under Schedule 20, in its execution, a constable may (Paragraph 20):
- use reasonable force;
- enter any place; and
- give reasonable instructions to the person (though he must inform the person that informing him of the reason for the instruction that it is an offence to fail to comply).
Where the constable is exercising a power to remove to a screening and assessment place, s/he has the power to “keep” (i.e. detain) the person for a reasonable period pending their removal to that place.
Importantly, when exercising any power under Schedule 20, the constable must have regard to any guidance published by the Secretary of State etc. as well as any advice given by the public health officer in the particular case (Paragraph 21).
But a constable can act on their own initiative: paragraph 7 also empowers a constable to (1) direct a person whom he has reasonable grounds to suspect to be potentially infectious to go immediately to a specified place for screening and assessment or (2) to remove the person to such a place. As before, he must have regard to any published guidance (which may specify suitable screening and assessment places) as well as to any advice from a public health officer in that case.
Definition of potentially infectious
There are 2 alternative limbs:
- EITHER the person is, or may be, infected or contaminated with coronavirus, and there is a risk that the person might infect or contaminate others with coronavirus;
- OR the person has been in an area declared to be an infected area within the preceding 14 days (so far, Wuhan or Hubei).
Potential infection or contamination is likely to be a medical, not a factual, question and it may be necessary to give training or briefings to officers on what observable symptoms may constitute reasonable grounds to suspect that a person is or may be infected or contaminated by coronavirus as well as what features of the case may amount to reasonable grounds to suspect that he may infect or contaminate others.
It seems likely that the most common reason for suspicion will be a report to a constable from a health professional. Perhaps guidance will also set out symptoms (e.g. a new persistent cough or a high temperature) which are sufficient for this low threshold to be met.
When the constable’s powers may be exercised
Suspicion is not enough. The constable’s power may only be exercised if it is necessary and proportionate to do so:
- in the interests of the person concerned;
- for the protection of others; or
- for the maintenance of public health.
These factors may also be informed by medical opinion.
Even then, the constable must, before exercising these powers, consult a public health officer to the extent that it is practicable to do so.
When exercising the power, the constable must inform the person concerned of the reasons for directing or removing them and that it is an offence where directed to fail without reasonable excuse to comply or when removed to abscond.
Once the person is at the screening and assessment place, the constable can keep him or there until the public health officer is able to exercise their functions for up to 24 hours (which may be extended for a further 24 hours with the consent of a superintendent).
At the screening and assessment place, in exercising their functions, the public health officer can require the person to remain there for screening and assessment purposes for up to 48 hours and a constable may keep the person there (paragraph 9). The public health officer can request a constable to move the person to another place for screening and assessment. In the latter case, the ‘detention clock’ starts afresh.
Quite prolonged detention may result, particularly at times of high screening and assessment throughput.
After the screening and assessment, if the person does not test clear of the coronavirus, the public health officer can order them to provide information or contact details, attend further screening and assessment or to remain in isolation or subject to travel, movement, activities and/or contact restrictions for up to 14 days (extendable by a further 14 days). Regular reviews of these restrictions are required and are subject to appeal in a magistrates’ court. They come to an end if the transmission control period comes to an end with the revocation of the Secretary of State’s declaration.
Where a person is required to remain at a place or to remain in isolation, a constable can keep them there, remove them to that place or take them into custody if they abscond.
So it can be seen that, while a person cannot be (forcibly) compelled to comply with testing (though he commits an offence if he fails to cooperate), in practice, a potentially infectious person may be (forcibly) kept out of circulation for long enough to ensure that he can no longer be infectious.
Schedule 21 – events, gatherings and premises
Activation and deactivation of powers
Similarly to Schedule 20, this schedule is activated by a declaration by the Secretary of State in relation to England (or Scottish or Welsh Ministers or Department of Health in Northern Ireland) (published online and thereafter published in the London Gazette) that:
“the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health in England, and the powers conferred by Schedule 20 will be an effective means of delaying or preventing significant further transmission … or facilitating the most appropriate deployment of medical or emergency personnel and resources”.
These will be referred to below as “the Schedule 21 purposes” for short. The emphasised words above are a specific addition to Schedule 21 – perhaps aimed at large scale protest – whether or not it involves sufficient social distancing – which might interference with the health or emergency service response.
Given the Prime Minister’s televised address on Monday 23 March, it seems likely that such a declaration will be made on the passing of the Bill into law.
Such a declaration can also be revoked by publication in the same way.
While there is a declaration in place, the relevant nation of the UK is in a “public health response period”.
Prohibition or control of events or gatherings
For the Schedule 21 purposes, the Secretary of State (or Scottish or Welsh Ministers or NI DoH in their respective nations) (collectively, “Minster”) may (Paragraph 5) issue a direction prohibiting or imposing requirements or restrictions on the holding of a specific (type of) event or gathering – or events or gatherings generically described.
Very importantly, they are targeted at organisers etc. and those hosting, but not at those merely attending such events or gatherings. They may also be targeted at the owner of premises. Premises are extremely widely described (Paragraph 1) and include aircraft, trains, boats, tents, caravans and oil rigs.
The Minister can issue a complete prohibition or can require owners/occupiers/organisers etc. to comply with a potentially wide range of directions as to the number of people who may attend and as to giving information to those attending.
Importantly, no such direction or prohibition may bind a mere attender. He or she commits no wrong under this Schedule by merely attending, even if he knows that the organisers are in flagrant breach. Any powers envisaged by the Prime Minister, in his address on 23 March, for police to disperse those attending events or gatherings will need to be added to this Bill, to other legislation or imposed in emergency regulations made under the Civil Contingencies Act 2004.
Powers in relation to use of premises
For the Schedule 21 purposes, the Minister may issue a direction targeting specific or generically described premises and imposing restrictions on owners and occupiers and on those involved in managing entry to/exit from/location within premises.
The direction may require any of the following:
- closure or premises
- restrictions on entry to premises
- restrictions on distancing within premises
- restrictions on the purposes for which a person may be on premises
- facilities within the premises
- periods of time for opening or persons to be within
- other restrictions.
Importantly, again there is no power to give directions to or impose sanctions on those who merely attend premises and any powers envisaged by the Government for police to disperse those attending events or gatherings will need to be added to this Bill, to other legislation or imposed in emergency regulations made under the Civil Contingencies Act 2004.
The Minister must, before exercising the powers above, have regard to the advice of the Chief Medical Officer and his deputies.
Organisers, owners and occupiers etc. who disobey these restrictions and prohibitions (but not mere attenders), without reasonable excuse, commit an offence. However, the offence is only punishable by a fine, rather than any deprivation of liberty. Accordingly, arrest may therefore be disproportionate, unless the infraction is serious.
In Scotland, and Northern Ireland, constables have an express power to use reasonable force and to enter premises. Amendments to the Bill (Paragraphs 10A and 32A) add the power to designate persons (e.g. constables and local authority enforcement officers) who may enforce compliance with directions in England and Wales by taking “such action as is necessary to enforce compliance”.
Things are moving quickly and further amendments to the Coronavirus Bill are entirely likely, including to enforce the so-called ‘lockdown’ described in mandatory terms in the Prime Minister’s televised national address on 23 March.