Health Protection (Local Authority Powers) Regulations 2010

My Lords, there are three statutory instruments before noble Lords today. The first set of regulations deals with various matters relating to Part 2A orders, which a justice of the peace may make to protect human health. The second set of regulations relates to local authorities’ powers, while the draft order makes a minor consequential amendment to the Water Industry Act 1991. I will set out brief details about the regulations. The Health Protection (Part 2A Orders) Regulations require the local authority, if it makes an application to a justice of the peace for an order, to notify certain people. This includes, as might be expected, the person who is the subject of the application, unless the local authority takes a reasonable view that the person is likely to abscond or to act in a way that would undermine the purpose of the application. Next, the regulations specify the evidence that a JP must have available before he or she can make an order about a person. These are quite detailed evidential requirements and will be of considerable help to the JP in determining whether the criteria for an order, which are set out in the primary legislation, are indeed met. Furthermore, the regulations provide a number of safeguards for people who might be affected by an order. They ensure that all orders relating to people are restricted to a maximum of 28 days. They set out who is an "affected person" with the right to appeal against an order, including the deceased’s next of kin in the event that an order is made in connection with a dead body. They require the local authority to help people subject to an order to understand what the order does, why it has been made and their right to appeal against it; and to tell the person of any support services that are relevant to their circumstances. If a person’s liberty is restricted by an order—if they are detained or subject to quarantine—the local authority must have regard to the impact of the order on the person’s welfare and that of any dependants they might have. The regulations also provide a discretionary power for a local authority to make a charge for any measures it undertakes as a result of an order. This could happen if an order requires someone to take certain measures but the person cannot or will not do so, whereby the local authority has to take action itself. Finally, the regulations require all applications for orders and all variations and revocations of orders to be reported to the Health Protection Agency. I turn now to the draft Health Protection (Local Authority Powers) Regulations. These regulations set out what local authorities can do to respond to public health threats, without needing to apply to a JP for an order. The powers are not very different to the powers local authorities have now. However, they are considerably updated and brought into line with the principle of the new legislation that, with some limited exceptions, powers imposing restrictions or requirements on a person should be subject to judicial oversight. The regulations continue existing arrangements under which a local authority may keep away from school a child who could put others at risk from infection or contamination, subject to strict criteria being met. In the event that other children have been exposed, the authority can require a list of pupils at the school for contact-tracing purposes. A local authority may also prevent access to or contact with a dead body which presents a risk to health. The regulations allow a local authority to make a formal request to someone to take certain action, or to desist from action, as the case may be, for health protection purposes; and to disinfect or decontaminate any thing—Members of the Committee will remember the discussion that we had about "thing"—or any premises on request. The local authority may, but is not required to, offer compensation. These powers will usually be adequate to deal with a health protection issue quickly and with minimum fuss. But if not, the authority may consider applying to a JP for an order. The draft Health and Social Care Act 2008 (Consequential Amendments) Order is also before the Committee today. This makes a straightforward consequential amendment which is needed as a result of the repeal of Section 11 of the Public Health (Control of Disease) Act 1984. I do not need to detain the Committee any longer on this matter. However, that amendment to the 1984 Act reminds us that the regulations are part of an important programme to modernise the legislative powers available to those who deal with risks to public health from contamination or infection. The Committee will be aware that the Health and Social Care Act 2008 made substantial changes to the Public Health (Control of Disease) Act 1984. Those changes introduced powers to deal with significant threats to human health from dangerous infections or contamination from chemicals or radiation. Out-of-date concepts have been removed and new arrangements for health protection are in place to meet the needs of modern society. However, we cannot bring these new measures into force without first making regulations to complement the changes made to the Act. These regulations will complete the picture of domestic health protection powers and allow us to bring all the new measures into force from this April. Some noble Lords may recall that I spoke in Grand Committee in May 2008 about these changes to health protection law, then being introduced in the Health and Social Care Bill. In the course of those debates, my noble friend Lord Darzi of Denham and I made a number of commitments to Members of that Committee as to matters to be included in regulations under the proposed new powers. I am happy to say that we have met all of those commitments in these regulations on the Part 2A orders. I have briefly set out the provisions of the regulations and I hope that the Committee will see how we have met, and indeed exceeded, those commitments. I will mention one issue which was raised last year in the course of our consultation on the regulations. Most respondents broadly supported them as they were then drafted, but a number raised concerns that the legislation could have an adverse impact on people with HIV or other sexually transmitted infections. We debated this very point in 2008 and I am sorry that it is still a concern for some stakeholders. We have tried to set minds at rest, because the legislation simply does not permit the use of compulsory powers other than in very narrowly defined circumstances, and certainly not just because a person has a particular type of infection. My honourable friend the Minister for Public Health recently met my noble friend Lady Gould of Potternewton about this matter. My honourable friend endeavoured to reassure the noble Baroness, and I repeat the assurance, that there are strong, effective safeguards in place to protect people against the misuse of powers. I am pleased to say that, at the Minister’s invitation, stakeholders in the field have been contributing to the preparation of guidance on the new legislation. That work is nearing completion, and I hope that the guidance that will shortly emerge will reassure those who still have concerns. In addition, I assure the Committee that we undertake to publish information from the reports of applications for orders, as required by regulations. That will ensure that their use is monitored. Noble Lords will be aware that we cannot be complacent about the threats to our health and society from unforeseen sources. Infectious disease is estimated to cause about a fifth of all deaths across the world. In a global society, with swift and frequent travel, international trade and movement of populations, there is potential for new strains of infection to emerge and spread. We also face increasing risks from contamination in various forms, whether accidental or deliberate. Of course, most people suffering from infection or contamination would not dream of putting others at risk. Health protection legislation is needed for the very rare circumstances where someone refuses to take action to protect others and there is no other way to deal with the potential harm but through compulsory measures, proportionate to the risk presented. Any measure which includes powers to place restrictions on people, or requires them to do certain things, is rightly scrutinised rigorously for its implications for human rights. We believe that the amended Act and the regulations we are debating today achieve the right balance between the protection of human health and respect for individual rights. They provide an effective way to deal with threats, but at the same time contain safeguards. I commend the regulations and the order to the Committee.