In this blog, Sam Cuthbert considers the legal basis and effect of the quarantine measures imposed on incoming international travellers, with a particular focus on their consistency with the international human rights framework governing national responses to public health crises.
The government’s COVID-19 recovery strategy was laid before Parliament on 11 May 2020. In part, it sets out that international travellers arriving into the UK will be required to undertake a 14-day period of self-isolation. Implementing measures for this policy are due to come into force on 8 June 2020. The quarantine imposed on international arrivals is intended to prevent transmission of the virus during its incubation period and will depend on travellers providing information regarding a suitable location in which they will self-isolate. Those without suitable accommodation will be quarantined in government arranged facilities.
This article sets out the development of the statutory scheme by which the government is able to exercise such powers and how it coheres with the UK’s international law obligations under the International Health Regulations 2005.
The development of the enabling legal framework
At the outset of the pandemic, quarantining international arrivals to the UK was dependent on a consent-based system; it was therefore open to individuals to refuse consent. The Health Protection (Coronavirus) Regulations 2020 were enacted by powers conferred in the Public Health (Control of Disease) Act 1984. Section 45B of those Regulations relates to international travel and enables the appropriate minister to make provision by regulation for:
- preventing danger to public health from vessels, aircraft, trains and other conveyances arriving at any place;
- preventing the spread of infection or contamination by means of any vessel, aircraft, train other conveyance leaving any place; and
- for giving effect to any international agreement or arrangement relating to the spread of infection or contamination.
Pursuant to subsection 2 of this provision, such regulations may be made for the purposes of isolation or quarantine of persons. The Coronavirus Act repealed these regulations, and the equivalent power is now found in schedule 21 of the Coronavirus Act 2020.
The Coronavirus Act 2020
Schedule 21 of the Act applies to “potentially infectious people”. This can either relate to someone who is/may be infected or contaminated with a risk of transmission, or persons who have been in an infected area within the 14 days preceding that time. For the purposes of this schedule, the Secretary of State has the power to determine what is to be regarded as an infected area – this is presumably what the Home Secretary will seek to rely upon when creating air bridges with other nations.
Under paragraph 6 of schedule 21, public health officers are empowered to direct an individual to go to a suitable place for screening and assessment where there are reasonable grounds to believe that person is infectious. Public health officers must consider such a direction to be necessary and proportionate as regards the individual, the protection of others, or the maintenance of public health. If necessary, removal may be forceful with the help of a constable. Individuals can be detained for up to 48 hours, they can be required to give (or have taken) biological samples and to provide personal healthcare information.
After assessment, under section 14 of schedule 21, if the public health officer determines reasonable grounds to suspect a person is potentially infectious further restrictions may be imposed on the individual. This is only in cases where test results are either positive or inconclusive. Again, such powers will only be used where it is deemed by the public health officer to be necessary and proportionate as regards the individual, the protection of others, or the maintenance of public health. Further restrictions may include a “requirement to remain” at a specified place in isolation from others for a specified period and may not exceed 14 days.
The Coronavirus Act 2020 therefore contains the necessary statutory ingredients to quarantine international arrivals from any country deemed to be an infected area by the Secretary of State for up to 14 days. This is clearly a significant infringement of the individual civil liberties of those who are quarantined, which gives rise to the question of how such quarantine measures may be consistent with international law.
The Health Protection (Coronavirus, International Travel) (England) Regulations 2020
This legislation was laid by Parliament on 3 June 2020 and is due to take effect from 8 June 2020. Also made pursuant to the powers contained in The Public Health (Control of Disease) Act 1984, this legislation provides specific guidance and enforcement measures for the quarantine of international arrivals into England. The devolved nations have powers to establish their own systems, although have yet to do so. As above, the Coronavirus Act 2020 would provide a statutory basis on which to enforce quarantine measures on passengers arriving into the devolved nations where public health officers deemed it necessary and proportionate.
Under reg. 3, international arrivals (not including arrivals from the common travel area) are required to provide information in a Passenger Locator Form including contact details, journey details and further travel plans, and the address at which they intend to self-isolate. Under reg. 4, those arriving into England from outside the common travel area, or from within the common travel area having been outside the travel area within the preceding 14 days, must self-isolate for 14 days. The address specified in the Passenger Locator Form must be the passenger’s home, the home of a friend or family member, or a hotel, hostel, bed and breakfast, or other suitable place. Asylum seekers and those on immigration bail will similarly be required to self-isolate in suitable government-provided accommodation.
During the 14 day self-isolation, passengers will have restrictions on leaving the address they have provided. Exceptions to those restrictions include traveling to leave the country directly, seeking medical assistance, fulfilling a legal obligation, moving to a different place in which to self-isolate, and obtaining basic necessities where impossible to do by other means. Schedule 2 of the Regulations sets out a long and exhaustive list of the persons not required to comply with the regs. 3 and 4.
The Regulations contain enforcement provisions whereby contravention of the Regulations may be an offence punishable on summary conviction by a fine. Offences include breaches of the 14 day self-isolation, failing to provide passenger information, or providing false or misleading passenger information. Fines will be administered via fixed penalty notices. Mandatory 14 day self-isolation under the threat of criminal law enforcement is clearly a significant infringement of the individual civil liberties of those who are quarantined, which gives rise to the question of how such quarantine measures may be consistent with international law.
International Health Regulations (IHR) 2005
In order for governments to interfere with civil rights of on the grounds of public health, the proposed measures must align with the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, which constrain the derogation of civil and political rights during public health emergencies. These principles, published by the UN Commission on Human Rights on 28 September 1984, state that any limitations on human rights must be in accordance with the law, based on a legitimate objective, strictly necessary in a democratic society, the least restrictive and intrusive means available, and not arbitrary, unreasonable, or discriminatory.
The IHR 2005 were adopted in their earlier form – the International Sanitary Regulations – by art. 21 of the constitution of the WHO in 1951 making them binding on WHO member states. The IHR now govern how all 196 WHO member states collectively address the global spread of disease. The foreword to the Regulations sets out that their purpose is to ensure the maximum security against the international spread of diseases with a minimum interference with world traffic.
The IHR effectively ensures respect of the Siracusa Principles in international health crises. Article 43 of this instrument restricts responses to public health crises’ to measures which are supported by science, commensurate with the risks involved, and anchored in human rights. In accordance with art. 32 IHR 2005, the WHO guidance on quarantine is that if a country decides to put arriving passengers in a quarantine facility, it must consider:
- Infrastructure – universal guidance is not given but the inhibition of transmission should be central and the living placement should be recorded for the purposes of potential future tracing.
- Accommodation and supplies – provision of adequate food and water, appropriate accommodation including sleeping arrangements and clothing, protection for belongings, appropriate medical treatment, means of necessary communication if possible, in a language that they can understand and other appropriate assistance. Medical masks are not required.
- Communication – establish appropriate communication channels to avoid panic; provide appropriate health messaging so those quarantined can timely seek appropriate care when developing symptoms.
- Respect and dignity – travellers should be treated with respect for their dignity, human rights and fundamental freedoms and so as to minimize any discomfort or distress associated with such measures, including by treating all travellers with courtesy and respect, taking into consideration the gender, sociocultural, ethnic or religious concerns of travellers.
- Duration – up to 14 days (corresponding with the known incubation period of the virus, according to existing information), may be extended due to a delayed exposure.
As a WHO member state, the UK is legally bound by its obligations and the guidance featured above provides a strategy for meeting its obligations under art. 32 specifically. The importance of ensuring adherence to the IHR is their explicit anchoring in the protection of human rights. Although the IHR are not directly enforceable, the interdependence of all WHO states adhering to the rules makes compliance of the utmost significance to avoid like-for-like breaches and the piecemeal deconstruction of an important international tool in overcoming COVID-19 in a way that fully respects and maximises the basic rights of those involved. Coherence with the IHR is a strong signal of international solidarity and respect for the international rule of law. The manner in which these measures – and any other policies falling within the purview of the IHR – are implemented ought to be closely scrutinised.