The Coronavirus Act 2020: Powers of Control for Immigration Officers, Constables, and Public Health Officials, for Screening and Assessment, and Powers to Control Movement, Activity, and Human Contact

Introduction

 The Coronavirus Act 2020 introduces new powers in two areas concerning the movement of persons:

  • The Control of Potentially Infectious Persons
  • The Suspension of Port Operations

The Act introduces far-reaching powers for immigration officers, constables, and public health officials, for screening and assessment, and powers to control movement, activity, and human contact. The scope of the powers is understandable given the scale of the crisis. Given that they are so far-reaching, scrutiny of their exercise will be important; the society that is to be preserved is one that values life, well-being, and the rule of law.

The restrictions that may be imposed include restrictions for a specified period on:

  • a person’s movements or travel (within or outside the United Kingdom)
  • a person’s activities (including their work or business activities)
  • a person’s contact with other persons or with other specified persons

The purpose of this post is to present these new powers in digestible form.

 (1) The Control of Potentially Infectious Persons

 Powers are given to public health officers, constables, and immigration officers to control potentially infectious persons by section 51 and Schedule 21 of the Act. Separate provision is made for England, Wales, Scotland, and Northern Ireland. For reasons of economy only the powers relating to England are set out below.

Potentially Infectious Persons

A person is “potentially infectious” at any time if:

  • 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 infected area within the 14 days preceding that time

An “infected area” means any country, territory or other area outside the United Kingdom which the Secretary of State has declared as a country, territory or area:

  • where there is known or thought to be sustained human-to-human transmission of coronavirus, or
  • from which there is a high risk that coronavirus will be transmittedto the United Kingdom

A declaration is to be made by being published online, and must, as soon as reasonably practicable after it is made, also be published in the London Gazette.

Some Further Definitions

An “assessment”, in relation to a person, means an assessment of the measures that it would be appropriate to take in relation to the person to mitigate the risk thatthe person might infect or contaminate others with coronavirus.

A “biological sample” includes a sample of blood or respiratory secretions (including a sample of such secretions taken by a swab of the nasopharyngeal cavity).

“Screening”, in relation to a person, means:

  • Assessing the extent to which a person has been exposed to coronavirus
  • Determining whether the person is infected or contaminated with coronavirus, and
  • Assessing the person’s symptoms and state of health

Formalities

 A direction, instruction, requirement or restriction may be given or imposed orally or in writing. But where a requirement or restriction exercisable after assessment is given to a person orally by a public health officer, the public health officer must as soon as reasonably practicable thereafter give the person a notice setting it out in writing.

 Ancillary powers – Instructions, Keeping a Person, Reasonable Force, Entry

A public health officer, constable or immigration officer may give reasonable instructions to a person in connection with:

  • A direction given to that person under a power conferred, or
  • Removing the person to or keeping the person at a place under a power conferred

Where a public health officer, constable or immigration officer gives a reasonable instruction to a person, the officer or constable must inform that person:

  • Of the reason for the instruction, and
  • That it is an offence to fail to comply with it

A power conferred to remove a person to a place includes a power to keep the person for a reasonable period pending their removal.

A constable or immigration officer may use reasonable force, if necessary, in the exercise of a power conferred.

A constable (but not an immigration officer) may enter any place for the purpose of the exercise of a power conferred.

Guidance and Advice

A person exercising a power conferred must have regard to:

  • Any relevant guidance issued by the Secretary of State, and
  • Any advice given by a public health officer in relation to any particular case.

 Declarations of Risks of Coronavirus in England

The Secretary of State may make a declaration to such effect if, at any time, she is of the view that:

  • the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health in England, and
  • the powers specified will be an effectivemeans of delaying or preventing significant further transmission of coronavirus in England,

If, having made a declaration the Secretary of State ceases to be of that view she must revoke the declaration.

A declaration or the revocation of a declaration is to be made by being published online, and  must, as soon as reasonably practicable after it is made, also be published in the London Gazette. Such a declaration may be made on more than one occasion.

Before making or revoking a declaration the Secretary of State must consult the Chief Medical Officer or any of the Deputy Chief Medical Officers of the Department of Health and Social Care.

Transmission Control Period

 A “transmission control period” is a period that begins when the Secretary of State makes a declaration and ends when the declaration is revoked.

When the transmission control period, during which a power conferred is exercised, comes to an end, any requirement or restriction imposed under the power ceases to have effect in respect of times after the end of the period.

Powers to direct or remove persons to a place suitable for screening and assessment

Public Health Officers

During a transmission control period, if a public health officer has reasonable grounds to suspect that a person in England is potentially infectious, she may:

  • direct the person to go immediately to a place specified in the direction which is suitable for screening and assessment
  • remove the person to a place suitable for screening and assessment, or
  • request a constable to remove the person to a place suitable for screening and assessment (and the constable may then do so).

A public health officer may exercise the powers in relation to a person only if the officer considers that it is necessary and proportionate to do so:

  • in the interests of the person
  • for the protection of other people, or
  • for the maintenance of public health

Where a public health officer exercises the powers conferred, the officer must inform that person:

  • of the reason for directing or removing them, and
  • that it is an offence (1) in a case where a person is directed, to fail without reasonable excuse to comply with the direction, or (2) in a case where a person is removed (by the officer or by a constable), to abscond

 Constables and Immigration Officers

 During a transmission control period, if a constable or an immigration officer in the course of exercising any of their functions has reasonable grounds to suspect that a person in England is potentially infectious, she may:

  • Direct the person to go immediately to a place specified in the direction which is suitable for screening and assessment, or
  • Remove the person to a place suitable for screening and assessment

An immigration officer or constable may exercise the powers conferred in relation to a person only if the officer or constable considers that it is necessary and proportionate to do so:

  • in the interests of the person
  • for the protection of other people, or
  • for the maintenance of public health.

Where an immigration officer or constable exercises the power to direct or remove a person, the officer or constable must inform that person:

  • of the reason for directing or removing them, and
  • that it is an offence (1) in a case where a person is directed, to fail without reasonable excuse to comply with the direction, or (2) in a case where a person is removed, to abscond

An immigration officer or constable must, before exercising the consult a public health officer to the extent that it is practicable to do so.

Powers Exercisable at a Screening and Assessment place: Public Health Officers

Public health officers have certain powers during a transmission control period:

  • where a person at a place in England which is suitable forscreening and assessment, and
  • a public health officer has reasonable grounds to suspect that the person is potentially infectious.

A public health officer may require the person to remain at the place for screening and assessment purposes for a period not exceeding 48 hours

Where a public health officer requires a person to remain at a place the officer must inform that person of the reason for imposing the requirement; of the maximum period the person may be required to remain there; and that it is an offence to fail to comply with the requirement.

A requirement imposed on a person may be enforced by a public health officer or a constable keeping the person at the place.

A public health officer may:

  • Require the person referred to be screened and assessed, and
  • Impose other requirements on the person in connection with their screening and assessment

Requirements may in particular include requirements on a person:

  • at such times as the public health officer may specify (1) to provide a biological sample, or (2) to allow a healthcare professional to take a biological sample by appropriate means
  • to answer questions and provide information about their health or other relevant matters (including their travel history and other individuals with whom they may have had contact)

Requirements may in particular includerequirements on a person:

  • To produce any documents which may assist in their assessment
  • To provide details by which they may be contacted during such subsequent period as the public health officer may specify.

If a public health officer considers it appropriate for the purposes of screening or assessing the person, the officer may:

  • Direct the person referred to go immediately to another place which is specified in the direction and is suitable for those purposes
  • Remove the person to another place suitable for those purposes, or
  • Request a constable (but not an immigration officer) to removethe person to another place suitable for those purposes (and the constable may then do so).

Where a public health officer exercises those powers, the officer must inform that person:

  • Of the reason for directing or removing them, and
  • That it is an offence (1)  in a case where a person is directed, to fail without reasonable excuse to comply with the direction, or (2) in a case where a person is removed (by the officer or by a constable), to abscond.

Where powers are exercised in relation to a person in a place so as to direct them to go to, or remove them to, another place, the powers exercisable at a screening and assessment place apply in relation that person afresh in that other place.

Powers Exercisable at a Screening and Assessment Place: Constables and Immigration Officers

Constables and Immigration Officers have certain powers where, during a transmission control period:

  • a person is at a place in England which is suitable for screening and assessment, and
  • an immigration officer or a constable has reasonable grounds to suspect that the person is potentially infectious.

The immigration officer or constable may keepthe person at that place until such time as a public health officer can exercise functions of screening and assessment in relation to that person.

A person may not be kept:

  • by a constable, for a period exceeding 24 hours, or
  • by an immigration officer, for a period exceeding 3 hours

However, if before the end of such  period the immigration officer or constable (as the case may be) considers that it is necessary to extend the period because it is not reasonably practicable for a public health officer to exercise the functions of screening and assessment before the end of that period,the immigration officer or constable may, with the consent of a relevant officer, extend the period for a further:

  • 24 hours, in the case of keeping by a constable, or
  • 9 hours, in the case of keeping by an immigration officer

“Relevant officer” means:

  • a constable of the rank of superintendent or above, in the case of keeping by a constable, or
  • an immigration officer not below the rank of chief immigration officer, in the case of keeping by an immigration officer.

An immigration officer or constable may keep a person only if they consider it is necessary and proportionate to do so:

  • in the interests of the person
  • for the protection of other people, or
  • for the maintenance of public health.

Where an immigration officer or constable keeps a person at a place they must inform that person of the reason for keeping them; of the maximum period for which they may be kept,  and that it is an offence to abscond.

An immigration officer or constable must, before exercising the powers conferred consult a public health officer to the extent that it is practicable to do so.

Powers Exercisable after Assessment: including Restrictions on Movement, Activity and Contact with Other Persons

Public health officers have certain powers where, during a transmission control period:

  • a person in England has been screened and assessed by a public health officer, and (1) the screening confirmed that the person is infected or contaminated with coronavirus, or (2) the screening was inconclusive, or
  • a person in England has been assessed by a public health officer and the officer has reasonable groundsto suspect that the person is potentially infectious.

A public health officer may at any time during the transmission control
period impose such requirements and restrictions on the person as she considers necessary and proportionate:

  • in the interests of the person
  • for the protection of other people, or
  • for the maintenance of public health.

Requirements may include requirements:

  • to provide information to the public health officer or any specified person
  • to provide details by which the person may be contacted during a specified period
  • to go for the purposes of further screening and assessment to a specified place suitable for those purposes and do anything that maybe required in respect of screening and assessment
  • to remain at a specified place (which may be a place suitable for screening and assessment) for a specified period
  • to remain at a specified place in isolation from others for a specified period

Movement, Activities, and Contact

 Restrictions on a person may include restrictions, for a specified period, on:

  • the person’s movements or travel (within or outside the United Kingdom)
  • the person’s activities (including their work or business activities)
  • the person’s contact with other persons or with other specified persons

Where a public health officer imposes a requirement or restriction on a person, the officer must inform the person of the reason for doing so, and that it is an offence to fail to comply with the requirement or restriction.

In deciding whether to impose a requirement to remain at a specified place for a specified period or to remain at a specified place in isolation from others for a specified period, the public health officer must have regard to a person’s wellbeing and personal circumstances.

A public health officer may vary or revoke a requirement or restriction imposed on a person (but may only extend the period to which a requirement to remain at a specified place for a specified period or to remain at a specified place in isolation from others for a specified period in accordance with the following provisions.

Time Periods

 The period specified in relation to a requirement to remain or in relation to any restriction may not exceed 14 days.

After the imposition of a requirement to remain or a restriction, a public health officer must:

  • Assess the person within 48 hours, and
  • In the light of that assessment reconsider which requirements or restrictions it is necessary and proportionate to impose on that person for the purposes of the interests of the person, the protection of other people, or the maintenance of public health

The public health officer may, following reconsideration:

  • Revoke the requirement to remain or the restriction or specify a different period not exceeding 14 days in relation to it
  • Substitute a different requirement or restriction

If the public health officer revokes the requirement to remain or the restriction, the Secretary of State may, if satisfied that the person is potentially infectious, re-impose the requirement or restriction (for the period originally specified).

If before the end of the period specified in relation to a requirement to remain or restriction:

  • a public health officer reasonably suspects that the person will be potentially infectious at the end of that period, and
  • the officer considers that the requirement or restriction is still necessary and proportionate for the purposes of the interests of the person, the protection of other people, or the maintenance of public health

the officer may extend the period for a further specified period

 Except in the case of a requirement to remain in isolation, the further period specified under may not exceed 14 days.

Where the period to which a requirement to remain or restriction relates is extended, a public health officer must review the requirement or restriction at least once in every
period of 24 hours.

If on a review the public health officer considers that the person is no longer potentially infectious, the officer must revoke therequirement to remain or the restriction.

If on a review the public health officer does notconsider that the person is no longer potentially infectious but the public health officer considers that the requirement to remain or the restriction is no longer necessary and proportionate for the purposes of the interests of the person, the protection of other people, or the maintenance of public health, the public health officer may substitute a different requirement or restriction  (which may not apply beyond the end of the further period specified).

Where a person is required to remain at a specified place for a specified period or to remain at a specified place in isolation from others for a specifiedperiodthe requirement may be enforced:

  • by a constable or public health officer removingthe person to the place
  • by a constable or public health officer keepingthe person at the
    place
  • if the person absconds, by a constable takingthe person into custody and returning them to that place or another place a public health officer may specify.

 Right of Appeal

A person on whom a requirement or restriction is imposed may appealagainst it (or against any variation of it or any extension of the period to which it relates) to a magistrates’ court. On an appeal the court may confirm the requirement or restriction (or variation or extension),with or without modification, or quash the requirement or restriction (or variation or extension).

Children

An individual who has responsibility for a child must, so far as reasonably practicable, secure that the child complies with any direction, instruction,requirement or restriction given to or imposed on the child.

An individual who has responsibility for a child must provide to a person exercising a power such information and assistance in relation to the child as is reasonably necessary and practicable in the circumstances.

A power to direct or require a child to go to a place may instead be exercised by directing or requiring an individual who has responsibility for the child to take the child to the place.

A power relating to screening or assessment, or in respect of powers exercisable after assessment, may only be exercised in relation to achild in the presence of:

  • An individual who has responsibility for the child, or
  • If the child is not accompanied by such an individual, an adult (not being a person on whom powers are conferred) that the person exercising the power considers to be appropriate, having regard to any views of the child.

Where a power is exercisable in relation to a child but the child is not accompanied by an individual who has responsibility for the child, the person by whom the power is exercisable must:

  • If practicable, contact an individual who has responsibility for the child before the power is exercised, or
  • If that is not practicable, take reasonable steps after the power is exercised to contact such an individual and inform them of any exercise of the power in relation to the child.

Where a child has a right of appeal the right may be exercised by an individual who has responsibility for the child.

An individual has responsibility for a child:

  • if the individual has custody or charge of the child for the time being (without being a person on whom powers are conferred), or
  • if the individual has parental responsibility for the child(within the meaning of the Children Act 1989).

Criminal Offences

A person commits an offence if the person:

  • Fails without reasonable excuse to comply with any direction, reasonable instruction, requirement or restriction given to or imposed on the person
  • Fails without reasonable excuse to comply with duties of individuals who have responsibility for a child
  • Absconds or attempts to abscond while being removed to or kept at a place
  • Knowingly provides false or misleading information in response to a requirement to provide information or otherwise in connection with the exercise of any power
  • Obstructs a person who is exercising or attempting to exercise a power

A person guilty of an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

 (2) The Suspension of Port Operations

 The Secretary of State is given power to suspend port operations by section 50 and Schedule 20 of the Act.

The Secretary of State may give a direction in writing to an operator of a portrequiring that operator to suspend suchrelevant port operations as she may specify in the direction. Such a direction may only be given if:

  • She considers that there is a real and significant risk that, as a direct or indirect result of the incidence or transmission of coronavirus, there are or will be insufficient border force officers to maintain adequate border security, and
  • She has taken such other measures as are reasonably practicable to mitigate that risk.

The Duration of Suspension

A direction under must specify  the operator to whom it is given;  the relevant port operations which are to be suspended;  the time at which the direction takes effect; the period of time for which the direction is to remain in effect (the  “suspension period”); and any arrangements that must be made, or steps that must be taken, by the operator which are reasonably incidental to the direction.

The suspension period specified in may be no longer than six hours.

However, if after giving a direction  the Secretary of State considers that there is or will be a  real and significant riskthat, as a direct or indirect result of the incidence or transmission of coronavirus, there are or will be insufficient border force officers to maintain adequate border security, if the suspension period is not extended, the Secretary of State may
before the expiry of the period extend it by notice in writing to the operator.

The first notice in relation to a suspension period may not extend the period for more than six hours from the time at which it would otherwise expire. A second or subsequent notice under in relation to a suspension period may not extend the period for more than twelve hours from the time at which it would otherwise expire.

Consequential Directions and Provision

Where the Secretary of State gives a direction to suspend port operations, she may also give a direction in writing to any person requiring the person to make such arrangements, or take such steps, as she considers appropriate in consequence of the direction.

Such a direction must specify the person to whom it is given, the arrangements which the person is required to make or the stepswhich they are required to take, and it must be accompanied by the direction to the port operator to which it relates.

Such a direction may, among other things require a person to take action to secure the safe arrival of any vessel,aircraft, train or other conveyance or vehicle at an alternative port; and specify a period of time for which the direction is to remain in effect.

 The Secretary of State must notify the Scottish Ministers, the Welsh Ministers and the Department for Infrastructure in Northern Ireland of any direction or notice given.

The Secretary of State may at any time revoke a direction or notice to any extent, having regard to whether there is a real and significant riskthat, as a direct or indirect result of the incidence or transmission of coronavirus, there are or will be insufficient border force officers to maintain adequate border security.

Criminal Offences

A person commits an offence if the person fails without reasonable excuse to comply with a direction A person has in particular a reasonable excuse if complying with the direction would cause the person to breach a duty to which the person is subject by virtue of any enactment. Those duties include duties under a direction or instruction given by the Secretary of State under:

  • Schedule 3A to the Merchant Shipping Act 1995
  • Part 2 of the Aviation Security Act 1982
  • Sections 118 and 119 of the Railways Act 1993
  • Articles 13 to 16 of the Channel Tunnel (Security) Order 1994

A person guilty of an offence is liable on summary conviction:

  • in England and Wales, to a fine or a term of imprisonment not exceeding 51 weeks or both
  • in Scotland, to a fine not exceeding level 5 on the standard scale or imprisonment for a term not exceeding 12 months or both, or
  • in Northern Ireland, to a fine not exceeding level 5 on the standard scale or imprisonment for a term not exceeding 6 months or both

In relation to an offence committed before section 281(5) of the Criminal
Justice Act 2003 comes into force, the reference to 51 weeks (England and Wales) is to be read as a reference to 6 months.

 

 

 

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