1/ At the start of the pandemic, the Coronavirus Act 2020 was passed by parliament. It was reviewed six months later and its provision continue unamended. It can therefor seen to be the current will of parliament.
2/ Schedule 21 of the Act, pursuant to section 51, is titled ‘Powers relating to potentially infectious persons’. Within the schedule, part II para. 14 sets out the powers of a “public health officer” to impose requirements on restrictions on any person confirmed to have coronavirus. These requirements include the requirement to isolate from others at a “specified place”(sub-para. 3 (e)).
3/ Importantly for our purposes, sub-para. 6 says:
In deciding whether to impose a requirement referred to in sub-paragraph (3)(d) or (e) the public health officer must have regard to a person’s wellbeing and personal circumstances.
4/ Within Schedule 21, a “public health officer” is defined (at Part I, para 3, sub-para 2) as:
(i)an officer of the Secretary of State designated by the Secretary of State for any or all of the purposes of this Schedule, or
(ii)a registered public health consultant so designated.
5/ However, the current requirement on people testing positive for the virus to self-isolate is not made under the Coronavirus Act. Instead, the The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, which came into force on Setpember 28th 2020, is a Statutory Instrument made under section 45R of the Public Health (Control of Disease) Act 1984.
6/ Part 1, para 2 (1)of these regulations state:
This regulation applies where an adult is notified, other than by means of the NHS Covid 19 smartphone app developed and operated by the Secretary of State, by a person specified in paragraph (4) that —
(a)they have —
(i) tested positive for severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) (“coronavirus”) pursuant to a test after 28th September 2020, or
(ii) had close contact after 28th September 2020 with someone who has tested positive for coronavirus;
(b) a child in respect of whom they are a responsible adult has —
(i) tested positive for coronavirus pursuant to a test after 28th September 2020, or
(ii) come into close contact after 28th September 2020 with someone who has tested positive for coronavirus.
7/ The persons duly specified at para. 4 are:
(a) the Secretary of State;
(b) a person employed or engaged for the purposes of the health service (within the meaning of section 275 of the National Health Service Act 2006 or section 108 of the National Health Service (Scotland) Act 1978(8));
(c ) a person employed or engaged by a local authority.
8/ There is, however, no requirement set out explicitly in the regulations for these specified people to have “regard to a person’s wellbeing and personal circumstances”.
9/ The crux of the argument is then as follows:
The kind of person specified under the new secondary legislation regulations, set by the Secretary of State (himself, NHS staff, council officers) and empowered therefore by the Secretary of State to impose self-isolation requirements, must logically also be imposing them under Schedule 21 of the primary legislation Coronavirus Act, because they must also be “an officer of the Secretary of State designated by the Secretary of State for any or all of the purposes of this Schedule”, given that both sets of legislation refer specifically to self-isolation requirements and to the specification of locations where that self-isolation must happen.
Therefore, anybody instructing a person to self-isolate under the regulations, must by law conform to their duty, under Schedule 21, to have regard to the “wellbeing and personal circumstances” that they want to require to self-isolate.
Not to have such regard would be unlawful on the part say, of a council officer calling someone at home to say that they must self-isolate.
10/ In turn, this is important politically because many people in local authorities have now said that it is difficult for people to self-isolate if they do not have the financial means to do so.
Local authorities, and spokespeople for them e.g. Andy Burnham therefore feel entitled to demand whatever financial support they feel appropriate, across the piece, such that their council officers can, as required be law, check that those people they are asking to self-isolate have the financial means to do in a way which does not adversely effect their wellbeing to an reasonable extent.
This is, local authorities should argue, the settled will of parliament, given the clear wording at Schedule 21 of the primary legislation in question, which was renewed last month without amendment. That is, it is clear that parliament did not want to see anyone having to self-isolate when they are not, in rhe eyes of the persons responsible for ordering such isolation, in a position to do so other than through an unreasonable level of damage to their circumstances or wellbeing.
Clearly, the question of whether someone can be fined by police for breaching isolation requirement under the new secondary legislation, if these requirements have not been lawfully imposed in line with duties set out in primary legislation, may be important.