The Coronavirus Act 2020 was rushed through parliament and the House of Lords this week and received Royal Assent yesterday, it commences with immediate effect and is therefore in force now. But what is it, what powers does it give to the state and the police and what can individuals be prosecuted for? Here Burton Copeland explains the key parts of the act and what new offences it creates.
Why was the Coronavirus Bill written?
According to the government the bill was written in order to enable action in 5 key areas relating to the spread of the infection and protection of the public and national security. These are summarised as follows:
- To enable and increase health and social care workforce, such as allowing recently retired NHS staff and social workers to return to work.
- To ease the burden on frontline staff – by reducing the administrative tasks they have to perform and enabling local authorities to prioritise care for individuals with the highest need.
- Containing and slowing the spread of the virus by reducing unnecessary social contacts and giving powers to the police and immigration officers to detain and quarantine persons believed to be infected.
- Managing the deceased with respect and dignity – by cutting red tape for example by allowing funeral directors to register a death, removing a requirement that an inquest must be held with a jury and removal of the requirement for secondary medical certificates and enabling the death management system to deal with the anticipated increased demand.
- Supporting individuals by allowing them to claim Statutory Sick Pay from the first day of illness or isolation and by supporting the food industry to maintain supplies
Key powers introduced by the Coronavirus Act 2020
- Power to require information relating to the food supply chains
- Power to suspend port operations
- Powers relating to potentially infectious persons
- Powers to issue directions relating to events, gatherings and premises
Power to require information relating to the food supply chains
The powers relating to food supply chains are set out in Sections 25 – 29 of the Act and are summarised as follows:
Section 25 – is the power for the “Appropriate Authority” (primarily the Secretary of State) to require a person who is in the food supply chain or connected to the food supply chain to provide “relevant information”. The AA can only require such information where:
- The Information is necessary to establish whether the food chain is disrupted or is at risk of disruption or if it is being disrupted to establish the nature, and;
- The AA has previously requested this information and the person has either failed to provide or provided information which is false or misleading.
The requirement to provide such information must be provided in writing and specify the time in which the information is to be supplied and in what form.
Section 26 – sets out all of those who could be considered to be an AA and in what circumstances.
Section 27 – provides restrictions on use of the information supplied which should only be used to establish the nature of any disruption, the purpose of mitigating or eliminating effects of disruption to the food chain.
Section 28 – allows the AA to impose a financial penalty on any person who fails to comply with the requirement or provides information that is false or misleading. The test is at the civil standard and therefore only requires satisfaction on the balance of probabilities sand not beyond reasonable doubt as is required for criminal offences.
Section 29 –casts an extremely wide net in both the definition of food chain, which includes anything grown or produced in fishing or agriculture and the persons involved in it which starts for example with the persons supplying seeds, feed or fertiliser and goes all the way up the chain to those providing individuals with food or drink for personal consumption.
Schedule 15 – sets out the procedure for imposing financial penalties, amounts of penalties, rights to make representations and appeals. These are summarised as follows:
- Requirements for a written “Notice of Intent” – this must set out the amount of the penalty, reason for imposing and right to make representations.
- Amount of Penalty – the maximum amount of the financial penalty is 1% of the qualifying turnover, which means the amount of their most recent complete accounting periods or in the event of disagreement is the amount determined by the authority.
- Right to make representations – about the financial penalty which must be made within 14 days.
- Final notice – this provides that after the expiry of the 14 day period in which to make representations, the AA must confirm whether a financial penalty is to be made and must include; the amount, reasons for imposing and time in which to pay which is 28 days.
- Provides information on penalties for late payments which includes a increase of the penalty by 50% and the right of the AA to publish details of the person subject to a penalty, it’s amount and the grounds on which it was imposed.
- Allows for the withdrawal or amendment (but only by reduction of the penalty) of the notice by the AA at any time.
- Provides details of appeals process – In England & Wales this would be before a First Tier Tribunal which would have the power to quash, confirm or vary the final notice.
Power to suspend port operations
Section 50 –& Schedule 20 of the Act gives the Secretary of State power to direct that a port operator suspends operations. This is where there is a real and significant risk that as a result of Coronavirus, there are insufficient border force officers to maintain adequate border security and he has taken other such reasonably practicable measures in order to mitigate that risk. The period in which the port can be suspended is initially for 6 hours but can be extended up to a maximum of 24 hours.
The Secretary of State can also give consequential directions on the port operator which might, for example require them to take action to secure the safe arrival of any vessel, aircraft, train or other conveyance or vehicle at an alternative port
Paragraph 6 of schedule 20 creates an offence if a person, without reasonable excuse, fails to comply with a direction in the schedule. On conviction the offence is punishable by up to 51 weeks imprisonment.
Powers relating to potentially infectious persons
Section 51 and Schedule 21 set out the new powers to detain and quarantine individuals who are deemed to be “potentially infectious”. The powers are almost identical to the Health Protection (Coronavirus) Regulations which came into force in England & as statutory instrument no. 129 of 2020 which we reported on here
What do the new powers mean?
The powers mean that the basic right to decline medical treatment is no longer an option in relation to Coronavirus. That is of course, unless nobody is aware of your existence. Essentially if you’re a “potentially infectious person” you may be required to submit to screening, to provide samples and to remain at a place as directed for an initial maximum of 14 days. Parents are responsible for ensuring children comply with directions and failure to comply as an adult, or if a child fails to comply and you have responsibility for the child is an offence (see details below).
What is a “potentially infectious person” and who can be subjected to these powers?
The key word here is “infectious”, rather than “infected”. So it’s any person who either:
- Is or maybe infected or contaminated with the virus AND there is a risk of infection of others.
- Has been in an infected area (that’s basically another country where there is infection) in the last 14 days.
In broad terms the various powers, which are exercisable by: a Public Health Officer, Immigration Officer or Police Constable, can only exercised if it is considered they are necessary and proportionate (i) in the individual’s interest (ii) for the protection of other people (iii) for the maintenance of public health.
How long can you be detained for under the Coronavirus Act?
The powers of immigration officers and police allow them to detain a suspected infectious person pending the arrival of a public health officer who will assess whether screening is required. The person may be detained for 3 hours in the case of an immigration officer and 24 hours in the case of detention by police. In the event that a public health officer cannot attend in the period, extensions of 9 hours (immigration officers) and 24 hours (police) are permitted, subject to the consent of senior officers. (Superintendent or a Senior Immigration Officer)
The powers of assessment by a public health officer include the authority to direct a potentially infectious person to go to a screening centre or to cause the person to be removed to such a centre for a maximum initial period of 48 hours. Once at the centre the individual can be compelled to provide or allow to be taken required biological samples, answer any relevant questions and provide information about his/her condition (for example travel or other history, documents and so on).
If the public health officer considers it necessary he can direct that the individual is transferred to an alternative screening centre and on arrival, the various requirements apply afresh.
What happens after the assessment?
Following assessment, if the test is positive or non-conclusive or the officer has reasonable grounds to suspect the person is potentially infectious, there is power to require information, including contact details and may require the person to remain at a specified place for specified period (up to a maximum 14 days, which may then be extended for a further 14 days but must be reviewed every 24 hours). Restrictions can also be placed on movements (within and beyond UK), activities (such as work) and contact with other persons or specified persons. For example it may be that a restriction is placed on coming into any contact with elderly persons or those with underlying health issues.
Once restrictions are imposed, the public health officer must reassess within 48 hours and once the public officer reaches the opinion that the person is no longer infectious, all restrictions must be removed.
The Act also allows a constable or immigration officer to use reasonable force in exercising any power and allows police to enter any place in order to exercise the powers.
Can you be prosecuted for Coronavirus offences?
Yes, there are a number of offences which can be committed and are detailed in paragraph 23 of Schedule 21
- Fails without reasonable excuse to comply with a restriction or requirement imposed – (1) (a) or (1) (b) fails to comply with the duty of an individual who has responsibility for a child.
- Absconds or attempts to abscond from detention or isolation (1) (c)
- Knowingly provides false or misleading information to any person carrying out a function under this part of the schedule (1) (d)
- Obstructs any person who is exercising or attempting to exercise carrying a power under this schedule (1) (e)
What are the penalties for offences under the Coronavirus Act?
For offences under schedule 21 (Powers relating to potentially infectious persons) the maximum sentence in England & Wales is a fine of up to level 3 (£1,000)
Powers to issue directions relating to events, gatherings and premises
Schedule 22 sets out the wide ranging powers given to the Secretary of State to restrict or prohibit events and gatherings. The existence of the powers is dependent on the need to act to protect public health and they are only available during “Public Health Response Periods”, which begin and end with declarations made by the Secretary of State. They are to be applied for the purpose of delaying, preventing or otherwise controlling the spread of disease or to ensure best use of emergency resources.
Restrictions apply to premises (which includes tents and movable structures, trains and aeroplanes) and events, which can be specific events or events of a particular kind. Restrictions on premises may be in respect of specific premises or premises of a particular description. In general terms, the responsibility for compliance lies with the owners of the premises or the event organisers and others involved in organising the event. Failure to comply is an offence and, in the case of corporate entities, officers (as with health and Safety offences) are liable personally if the offence was committed with their connivance or due to their negligence. Note that a person whose only involvement is to attend an event is not a “person involved in organising the event” and thus
Restrictions imposed may require closure of the premises or restricting entry, they may impose limits on numbers of persons, size of premises, purposes for which a person is in the premises and facilities and may specify a period of time.
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