Health Protection (Local Authority Powers) Regulations 2010

My Lords, the Committee will be grateful to the Minister for introducing the regulations which, as she said, take us back to our debates on what is now the Health and Social Care Act 2008. Looking back on those debates, I think that we can be quite proud of the role that this House played in encouraging the Government to make sensible and desirable changes to the manner in which the provisions of the Act are brought into effect. Most of those changes are designed in one way or another to safeguard the rights of the individual in the face of the range of restrictions and requirements which the authorities can deploy for the purpose of public health protection. I remain grateful to the Government for being so receptive to the proposals that a number of us made in that regard. I turn first to the Part 2A orders regulations, and to Regulation 4, which covers the evidence required for a justice of the peace to be sufficiently satisfied as to make an order under the provisions of the Act in relation to a person. First, under paragraph (2), he must receive a report giving details of the person concerned. The report need not be in writing and, as I understand it, has to include only one of the four elements listed in paragraph (2)(a). There is nothing wrong with that, it seems to me, as long as the combination of evidence presented is sufficient to purport to show that a particular person represents a significant risk to public health. In that context, my query relates to the third element, ""the outcome of clinical or laboratory tests"." That is a rather non-specific phrase. I would have expected it to say "the outcome of clinical or laboratory tests in relation to P". The point of the evidence listed in paragraph 2(a) is surely to show that a person, P, presents a significant risk. It is surely not sufficient to cite evidence of a general nature about the outcome of laboratory tests. I should be glad of the Minister's comments on that. Paragraph (2)(b) of Regulation 4 relates to the nature and characteristics of the infection or contamination in question; for example, the mechanism by which it spreads and how easily it spreads between humans. The problem with that, it seems to me, arises with new infections such as swine flu, whose characteristics and mode of spreading may be completely unknown when it first manifests itself. Swine flu is a particularly good example, because not only were its characteristics unknown when it first appeared, but it was thought to have a greater degree of lethality than later proved to be the case. How is a local authority supposed to present evidence to a JP about an infection if the relevant facts about that infection are not yet available? Does this mean that in circumstances of this sort local authorities will simply have to rely on their power to request people’s co-operation, and that they will not be able to apply for a court order unless and until the relevant facts about the infection are established? Regulation 7 provides for discretionary powers to enable local authorities to make a charge in relation to Part 2A orders as they apply to things and premises. I believe I am right in saying that this issue never came up in our debates on the Bill, and I was therefore a little surprised to see it. The power to make a charge is, I gather, not contained in the 2008 Act but rather in other local government legislation. In principle, this is not an unreasonable provision. However, paragraph (3) says: ""The amount of the charge imposed … must not exceed the actual costs (including staff costs) incurred by the local authority in taking measures in relation to the thing or premises pursuant to the order"." Any student of accountancy will know that there is no such thing as the actual costs. To take an example of a different kind, if I have lunch in a restaurant, the cost of my lunch could be reckoned as just the cost of the raw food; or the food plus the wages of the chef and the waitress who serves me; or those things plus a share of the restaurant’s light, heat and power bill; or those things plus a share of all the overheads of the business including the overheads of its head office. Any of these, taken as the basis of a calculation of costs, could be presented as being reasonable, but each gives a very different result. A person on the receiving end of an invoice from the local authority might regard a figure nearer to the marginal cost as being more reasonable than one based on full-cost accounting principles. What guidance will be given to local authorities in this regard, and on what basis will local authorities be encouraged not to levy a charge where the person would find difficulty paying? The regulations set a time limit of 28 days on all orders made in respect of a person. However, they do not do this in relation to orders made in respect of things or premises. Why is this? What are the remedies open to someone whose property has been seized and quarantined indefinitely? One aspect of these regulations which has caused considerable concern is their potential use in relation to those infected with HIV and other sexually transmitted infections—an issue which the Minister raised. She will remember very well that we debated this issue during the passage of the Act in 2008. The particular concern in this area stems from the very nature of sexual health services, the effectiveness of which depends on people having absolute trust that any information about them will be kept completely confidential. If individuals who may be infected with HIV are afraid that the law may require them to disclose details about themselves and their sexual partners, it is highly likely that this will deter them from presenting for testing and treatment in the first instance. That would be against their own interests, as well as those of others with whom they may be in contact. Against that background, can the Minister give an assurance that the Government will monitor the use of these powers to ensure that they are not being deployed unjustifiably in relation to people with HIV and other STIs? The Government have always been clear that the powers would be used only in the most exceptional circumstances and I accept that that is their intention. Nevertheless, the all-hazards approach adopted in the regulations makes it possible that local authorities may pursue an overzealous agenda. Therefore, I hope that the Minister will be able to confirm that the Government will keep a watch on these issues. The annual reports from the Health Protection Agency will provide them with the means to verify that the powers are being used in accordance with the published guidance. In addition, I hope that the Government will be alert to any unforeseen or harmful effects of the powers on sexual health services and on the communities most affected. I turn to the local authority powers regulations and first ask the Minister what I hope is not a difficult question relating to Regulation 8. This confers a power on the local authority to request that any person or group of persons should co-operate with it for health protection purposes. I am curious to know why we need this regulation, because surely the local authority can already make any requests that it likes of people in pursuance of its statutory functions. Secondly, Regulation 3 contains a power for the local authority to require a head teacher to provide it with a list of names, addresses and contact telephone numbers for all the pupils of a school when certain conditions have been satisfied. I am concerned about this: not in principle, but because of the apparent absence of safeguards over who may get hold of this information—some of which, in the wrong hands, could lead to all manner of problems. The Minister will doubtless tell me that the provisions of the Data Protection Act will apply, but will she reassure me that safeguards will be in place to ensure that untoward leakage of information to unauthorised persons does not occur and that there will be guidance to that end? Finally, I turn to the phraseology used in Regulations 4, 5, 6 and 7 in connection with the charges that local authorities are empowered to levy for disinfection or decontamination of things or premises. The regulations state that the local authority’s charge must not exceed the cost incurred by the local authority in carrying out the disinfection or decontamination. Again I ask the Minister, what the meaning is of the phrase, "the cost incurred"?