On 14 October 2020, the House of Lords is due to debate a motion to approve the Health Protection (Coronavirus, Restrictions) (Self-isolation) (England) Regulations 2020.

The regulations came into force on 28 September and were laid before Parliament later that day. They are subject to the ‘made affirmative’ procedure. Therefore, both Houses must approve them within 28 parliamentary sitting days or they will cease to apply.

The regulations are part of a suite of Government measures to attempt to curb the spread of coronavirus in England. They would make it an offence not to self-isolate under certain circumstances.

What do the regulations do?

The regulations require people in England to self-isolate when requested to do so by certain officials, including those in the NHS and local authorities. This would apply to those who have tested positive for coronavirus or those who have been in close contact with someone who has tested positive. It would not apply to those who had been recommended to self-isolate by the NHS contact-tracing app only.

Individuals would be required to self-isolate for specified periods (for example, 14 days) and in specified places (such as their home). However, they would be able to leave the premises for certain reasons, including obtaining essential food and medicines and accessing medical services.

It would be an offence not to self-isolate if required to do so under the terms of the regulations. Failure to do so could result in a fine. These range from £1,000 to £10,000. The regulations provide further details on how this would be enforced.

The regulations would also:

  • require people to provide the address of where they are self-isolating, when requested, as well as the details of other people living at the address;
  • prohibit employers or agencies from allowing workers who are required to self-isolate to work in any place except the place where they are self-isolating; and
  • require individuals instructed to self-isolate to let their employer know about it as soon as possible.

Why is the Government introducing the measures?

Announcing the new legal duty to self-isolate on 28 September 2020, the Home Secretary, Priti Patel, explained that the new measures were necessary to save lives. She explained:

Everyone must take personal responsibility and self-isolate if they test positive or if told to do so by NHS Test and Trace. For those who fail to do so, the police will enforce the law. These new fines are a clear sign that we will not allow those who break the rules to reverse the hard-won progress made by the law-abiding majority.

The Health Secretary also issued a statement about the importance of the new measures, and said that these would operate alongside a new test and trace support payment of £500 to assist low income workers required to self-isolate. The Government has explained that it is asking local authorities to set up these schemes by 12 October 2020:

Local authorities will be working quickly to set up these self-isolation support schemes and we expect them to be in place by 12 October. Those who start to self-isolate from 28 September will receive backdated payments once the scheme is set up in their local authority.

The BBC have claimed that the Government may also have taken action due to a recent study which indicated low levels of adherence to self-isolation guidance (around 18%). The study was conducted by individuals connected to a range of bodies, including Public Health England and academic institutions.

What scrutiny have the regulations received so far?

The regulations came into force on 28 September 2020 and were laid before Parliament later that day. Addressing this in the explanatory memorandum, the Government stated that the quick turnaround was needed to urgently address the rise in coronavirus cases:

It is the opinion of the Secretary of State that, by reason of urgency, it is necessary to make these Regulations without a draft being so laid and approved so that public health measures can be taken in response to the serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The urgency in this particular case arises from the increasing rate of diagnosed positive cases at the time of making this instrument.

The instrument is subject to the made affirmative procedure. This means the instrument needs to be approved by both Houses of Parliament within 28 parliamentary sitting days or it will cease to apply.

The House of Lords is due to consider the instrument on 14 October 2020.

The House of Lords Secondary Legislation Scrutiny Committee (SLSC) drew the regulations to the special attention of the House of Lords in its 8 October 2020 report. It did so on the basis they are “politically or legally important and give rise to issues of public policy likely to be of interest to the House”.

Explaining its reasoning, the committee highlighted the fact that those using the NHS test and trace app did so anonymously and would not be liable for the self-isolation requirements unless they then took a test or were otherwise notified by an official. It believed these people may now avoid doing so and could avoid the connected fines for not self-isolating. In contrast, it believed those without the app (who may be poorer or elderly) could be more likely to be contacted by traditional track and trace, and therefore more likely to be liable for fines:

29. These fines are substantial and depend on the effectiveness of the contact tracking system in all its forms. While track and trace can follow up the people that an individual with COVID-19 can identify, the NHS app works on the proximity of enabled phones to identify strangers, for example on a bus or in the supermarket queue […]

30. The Department of Health and Social Care (DHSC) has announced that more than 12 million people in England have downloaded the NHS App. It is, however, only accessible to people whose phones have more modern software, thereby excluding those who have older handsets—typically, the poorer or the older members of society. Those groups are therefore more likely to be identified by track and trace than the NHS app, and consequently more likely to be subject to fines, compared to those with the latest smart phones.

31. The policy intention is that anyone notified that they have been in contact with an individual who has tested positive should go into self-isolation for 14 days. However, the Government cannot track those who have been informed by the NHS app. There is, therefore, the potential for those informed by the app to avoid being fined for failing to self-isolate, if they do not follow up the notification by applying for a test. Furthermore, we question the effectiveness of fines in deterring those prepared to ignore public health advice because they themselves have taken the disease lightly or are asymptomatic.

Responding to the committee’s concerns, the DHSC believed there was no discriminatory effect between those using the app and those not. It stated that those using the app would be directed to take tests using the standard procedures and could also be contacted by test and trace if someone who has tested positive lists them as a recent contact. Both these methods would result in personal details being recorded and a legal duty to self-isolate. The Department also stated that there would continue to be a “strong programme of communications” to promote the importance of getting tested when showing symptoms.

The SLSC also questioned why the explanatory memorandum did not highlight estimates of those breaching quarantine requirements to support the policy.

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