The Detention of Potentially Infectious Persons: The Coronavirus Act 2020 and its Implications to Civil Liberty
In response to the COVID-19 pandemic, the UK Parliament has passed the Coronavirus Act 2020 (CA2020). Although this response benefitted the public in regards to public health, and the protection of vulnerable groups, concerns have been raised that there has been a drastic expansion of executive power, and thus fundamental civil liberties may be eroded. This work critiques the implementation of CA2020 that it may facilitates the creation of a ‘police state’. It would focus on the detention of potentially infectious persons.
Sch.21 of the CA2020 allows the detention of ‘potentially infectious persons’. It permits police, immigration officers and public health officers to detain anyone they have ‘reasonable grounds’ (para 7(1)) to suspect is ‘potentially infectious’ (para 15(1)) for up to 14 days. It is argued that this ability to detain anyone who may be infectious is evidentiarily problematic, and undermines the fundamental right of liberty under ECHR Art 5(1). Shreeve-McGiffen argued that CA2020 would ‘delegate’ too much power to police officers that they could detain anyone they think would be ‘potentially infectious’. Furthermore, Layla Moran, the MP for Oxford West, suggested that this may be disproportionate in regards to the homeless – as it is impossible to self-isolate without a private place to sleep.
Having police officers to detain any ‘potentially infectious persons’ they see fit is not appropriate and lead to a poor and imprecise enforcement of the new law as they don’t possess the necessary expertise to determine whether a person constitutes as ‘potentially infectious’. This could be mitigated through amendment of the Act through including provisions such as requiring the presence of a medical professional during detention, or setting guidelines as to being ‘potentially infectious’. These are ambiguities among the Act and should therefore be clarified. In relation to the homeless, the Act should take reference to the earlier Act of the Health and Social Care Act 2008, which provides a solution in conferring its powers on local councils ‘in relation to the monitoring of public health risks’ (s129 para 45C), which they could provide temporary accommodation for the homeless to isolate in, and provide shelter through the use of empty hotels. This would certainly balance the need for prevention of the spreading of infectious diseases, as well as guarding civil liberty.
However, I oppose the suggestion by Shreeve-McGiffen that the Act should be abolished due to the better solutions offered by the previous HSCA 2008, and for mass surveillance, the Civil Contingencies Act 2004 (CCA 2004). HSCA 2008 and CCA 2004 was passed more than a decade ago, and therefore would not be an updated legislation for the current pandemic. There has been a huge advancement of technology, such as the NHS Tracking App for smartphones as well as the deployment of drones for the purposes of monitoring government ‘essential travel’ advice. These would need to be regulated and it is doubtful that an Act passed over a decade ago would be competent to do so. Furthermore, having separate Acts of Parliament for different regulations may also be time-consuming to adapt to. However, this excessive executive dominance, as suggested by Hinks, is an existing problem through the establishment of CA2020 and it must be dealt with for the greater good of Britain.
