Question to the Department of Health and Social Care:

To ask Her Majesty's Government what assessment they have made of the Memorandum by the Department of Health submitted to the House of Lords Constitution Committee's inquiry Fast-track Legislation: Constitutional Implications and Safeguards in March 2009 which states, in response to Question 3, “The Government believes that 28 days will allow enough time to arrange a debate in each House even when the requirement specified by emergency regulations is urgent, yet minor in scope and effect”; and whether this undertaking applies to regulations made under the Public Health (Control of Diseases) Act 1984 in response to COVID-19.

Section 45R of the Public Health (Control of Diseases) Act 1984 enables Ministers to use the made affirmative procedure, by which an Instrument can be made before it is approved by Parliament. This is possible, provided the Minister makes a declaration that circumstances warrant this approach, in order to tackle a serious and imminent threat to public health. The inherent safeguard is that the Instrument will lapse within 28 days, unless approved by Parliament.

In the Department’s Memorandum of March 2009, which dealt with Regulations made under the 1984 Act, including the ones that form a key part of our response to COVID-19, we explained that even if Regulations had to be made in an emergency, taking effect before approval, a debate on an approval motion could take place before the Regulations lapsed. This has been achieved throughout the course of the outbreak. Furthermore, debates on approval motions, in both Houses, took place on the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 the day after they were made, and before they came into force.

The nature of the COVID-19 pandemic is such that the Government’s response has to be agile, in order to respond swiftly and effectively to evolving threats. The pandemic is therefore a serious and imminent threat to public health. In introducing necessary and proportionate measures to tackle its spread, delay can be harmful, and frustrate both the overall response and the specific objectives of particular Instruments. The powers in the 1984 Act are therefore expressly provided in order to support the approach that the Government has been taking.

The criteria referred to in section 2 of the Memorandum and section 45G of the 1984 Act are:

- the individual is or may be infected or contaminated,

- the infection or contamination is one which presents or could present significant harm to human health,

- there is a risk that the individual might infect or contaminate others, and

- it is necessary to make the order to remove or reduce that risk.

These relate to specific orders made by a magistrate and are not required to be considered for the making of Regulations. These underlying principles are certainly applicable to the national response; and the Government’s view is that the Regulations satisfy all of the criteria set out in the Act. In the course of making Regulations under the 1984 Act, Ministers do undertake assessments as to whether the proposed course of action is a necessary and proportionate response; and it is clear that COVID-19 does represent a significant threat.