This morning’s announcement that the Secretary of State, Matt Hancock, has determined that the incidence or transmission of novel Coronavirus constitutes a serious and imminent threat to public health, will give risk to important questions concerning the validity of limitations which may be imposed on day to day life to contain the spread of the novel Coronavirus.
It is understood, based on the BBC's political correspondent’s Iain Watson’s reporting, that this determination was reached because a passenger on the first UK flight from Wuhan, who is currently being held in quarantine on the Wirral, "is threatening to abscond" from a mutually agreed of period of isolation.
What are the Coronavirus regulations and what powers will they have?
While at the time of writing this blog the regulations themselves have not been published, it seems most likely that they will have been made under the wide-ranging powers in the Public Health (Control of Diseases) Act 1984. The determination of a serious and imminent threat is necessary in order to enable the Secretary of State to make regulations providing for compulsory detention, isolation or quarantine among other requirements; without such a determination the Secretary of State’s powers are much more limited. For any individual subject to detention or other measures under the regulations, such as the passenger who was threatening to leave quarantine, it is understood that there will be a right of appeal to the Magistrates’ Court. This will certainly be one option for the affected individual if they do wish to leave quarantine early. The other option might be to challenge the making of the regulations themselves.
The UK government's advice
Since the first indication of an outbreak came into the public domain, the government has understandably sought to reassure the public and prevent panic. The latest advice from the Chief Medical Officer is that the risk to the public is “moderate” while the “risk to individuals remains low.”
Possible issues for any judicial review by quarantined individuals
If the quarantined individual does seek to bring judicial review of the regulations in order to secure his or her release, it will be interesting to see how such advice would be treated by the courts if they are asked to determine whether there was the “serious and imminent threat” necessary to make regulations. This is likely to fall well within the court’s long-established jurisdiction to consider conditions precedent to the exercise of powers. Nobody will envy the court (nor for that matter the Secretary of State) in having to make such a difficult assessment at this time.