Groups of students and sections of the population can be detained for 14 days as a group in their halls or residence or apartment blocks under the new self-isolation regulations.
The ‘self-isolation’ restrictions came into force from 28 September 2020, although they relate only to tests conducted after that date, for 12 months. More specifically, these are called The Health Protection (Coronavirus, Restrictions) (Self Isolation) (England) Regulations 2020.
The core concepts are that someone notified by a ‘specified person’ of a requirement to self-isolate must do so, immediately, and must also notify the Secretary of State of the name of each person living in their household.
However, the notification is to be made to individuals and must be consequent on a specific positive test or close contact with the person who has had such a test. (If a ‘direction’ with force of law is to be given to a group of people at an address or in a certain area by a Local Authority or the Secretary of State, then separate powers must be exercised and a specific notice issued, exactly of the sort that seems not to have been issued to Manchester students held in their halls prior to commencement of these new regulations.)
Who can tell you to self-isolate?
Apart from Mr Hancock himself, this extraordinary power can be given to an extraordinarily wide number of people. It could include anyone employed or engaged by the NHS or a local authority. It is, perhaps, significant that a descriptive title, for example, Test and Trace Officer, has not been given to such people in the regulations. This could easily be traffic wardens being reassigned and given these powers.
If requested by such an authorised person, it is necessary to notify them of the address for self-isolation. Everyone will want to check the authority of anyone purporting to issue such a notice although one might imagine such authority being restricted to small dedicated teams. However, we might equally imagine hundreds or thousands of Covid marshals could be given these powers including our neighbours.
Period of isolation
The period of isolation, required as soon as notification is received, is in theory simple. Of course, no Coronavirus regulations are ever simple.
For the person who tested positive, the period is 10 days but the start of those 10 days may vary (reg 3). It is whichever is the later of:
- five days before the test was conducted, or
- the date that they had reported to “a person specified in regulation” that the symptoms first developed*, or
- “in any other case” the date of the test
For those living in the same household* as the person who tested positive, the starting date is in practice the same as for the person who had the positive test. However, the self-isolation period is 14 days instead of 10.
It seems that if the person tested has imagined and reported symptoms starting some days previously, their isolation will be over so so many days earlier.
For others notified on accusation of being in ‘close contact’* with someone testing positive, the isolation period is 14 days from with the date they are recorded as last being in close contact with the positive testing person before they had received their notification.
For those receiving notice to self-isolate on basis of being in the same household or having had ‘close contact’, it is a requirement that they are considered to have had close contact on or after 29th September 2020 with the person who tested positive (reg 3(4)).
The regulations are convoluted but the periods and start of the periods of self-isolation should not be arbitrary. Still…
The combined effect is this: any self-isolation notice given to person living in the same household which is stated to expire at any date up to and including 7th October 2020 is invalid. (29th Sept being first possible date of a relevant test, less maximum five days for report of earlier symptoms, plus 14 days self-isolation gets us to 7th October.)
For non-household ‘close contacts’, the period for 14 days could in theory end anytime from 30 September onwards, but this must be determined from the date of last close contact prior to the relevant test.
Learning the circumstances alleged is important. Read below about challenging notices.
Close contact has now, for the first time, been defined in these regulations:
- having face-to-face contact with someone at a distance of less than 1 metre
- spending more than 15 minutes within 2 metres of an individual
- travelling in a car or other small vehicle with an individual or in close proximity to an individual on an aeroplane
That would seem to 15 minutes continuously or with insignificant interruption, but 15 seconds would be sufficient in the car. This definition now becomes important for requirements to wear face coverings. See Face covering – some pretend law.
The requirement to ‘self-isolate’ is to ‘remain’ at home or a friend’s home or bed and breakfast or other “suitable accommodation” and not leave there except for a very limited number of reasons.
Those are only where necessary —
“(i) to seek medical assistance, where this is required urgently or on the advice of a registered medical practitioner, including to access—
(aa) services from dentists, opticians, audiologists, chiropodists, chiropractors, osteopaths and other medical or health practitioners, or
(bb) services relating to mental health,
(ii) to access veterinary services, where this is required urgently or on the advice of a veterinary surgeon,
(iii) to fulfil a legal obligation, including attending court or satisfying bail conditions, or participating in legal proceedings,
(iv) to avoid a risk of harm,
(v) to attend a funeral of a close family member,
(vi) to obtain basic necessities, such as food and medical supplies for those in the same household (including any pets or animals in the household) where it is not possible to obtain these provisions in any other manner,
(vii) to access critical public services, including social services, and services provided to victims (such as victims of crime),
(viii) to move to a different place specified in sub-paragraph (a), where it becomes impracticable to remain at the address at which they are.”
It is remarkable that the state again puts risks from Covid-19 above nearly all others. Illness caused or exacerbated by being locked up at in a bedsit or apartment block is here, by law, required to be suffered except “to seek medical assistance” which, of course, except for emergency is generally made unavailable and delivered only remotely. That or ‘harm’ must be given a wider and normal interpretation of being any detrimental impact on health. It is unacceptable that Mr Hancock avoids straight talk on such important issues and that he is not questioned directly on these issues.
Employers and workers
Once notified of a requirement to self-isolate, a worker must notify their employer of such and the start and end dates of the isolation period. That must be done as soon as reasonably practicable.
Once aware of the requirement to self-isolate, an employer must not knowingly permit the worker (including self-isolating agency workers) to leave their place of isolation for any employment related purpose.
Enforcement is by ‘authorised persons’ (reg. 10) listed as:
- a constable (i.e. police officer)
- a police community support officer,
- a person designated by the Secretary of State for the purposes of this regulation,
- an officer designated by the relevant local authority for the purposes of this regulation.
In respect of designation, there is no specified process or record required for how this is done or of any qualification or training is required. Nevertheless, the powers of enforcement include those which pre-Covid would have been reserved only to the police. Any authorised person who ‘considers that’ someone should be self-isolating as a result of notification can, if they consider it a necessary and proportionate means of ensuring compliance:
- direct them to return to the place where they are self-isolating, or
- remove them to that place using reasonable force
That’s right. Force. Hopefully the reassigned traffic warden is a reasonable sort of person. Presumably they will also all be dressed in hazmat suits or will be retired to self-isolate for 14 days before their next assignment….
Contravention, without reasonable excuse (not defined or illustrated by example), of any of the restrictions and obligations described above is regarded as an offence (reg 11).
It is an offence to obstruct someone carrying out their function under these regulations. It is an offence where relevant information is required as to the place of isolation or members of the household knowingly to gives false information.
It is also an offence, when asked by the NHS or Local Authority specified person, to falsely state that someone has been a close contact of a person who has tested positive for coronavirus (reg 11(7)). Of course, it may be rather difficult to consider someone to be lying about their recollection and no doubt the enforcer will be of the mindset better safe than sorry. So, plenty or room for malicious reporting of close contact.
It is, seemingly, also not an offence to make a false statement if not actually asked by a specified person about close contacts, but simply to volunteer a report. So, more scope for false reports and snitching in a malicious and dishonest way, as opposed to snitching in a neighbourly way as desired by ministers.
Where employers are companies, in addition to corporate liability the individual managers, directors and similar officers may be made personally liable if the offence is proved to have been committed with their consent or connivance or attributable to their neglect. Plenty of room here for buck-passing and confusion but, most notably, it highlights that in the usual case all that is required is for a specified person issuing the fine to ‘reasonably believe’ that an offence has been committed. So, normally, no proof or evidence seems to be required, just the notice of the fine including reasonably detailed particulars of the circumstances of the offence and certain specified information.
Standard, ‘reckless’ and smaller fines
Offences are on summary conviction punishable by a fine. Generally, the increasing tariffs start at £1,000, with repeated offences leading to increased fines of £2,000 then £4,000 then £10,000.
However, where the specified person considers that the offender had reason to believe they would come into close contact with another person or group, and did so, and was “reckless as to the consequences of that close contact for the health of that other person or group” then the first fine is £4,000 and £10,000. It may be interesting to learn how a specified person can reasonably believe someone “is reckless” as to the safety of those others in circumstances if they believe the evidence is that the chances of impacting their safety are vanishingly small but that the chances of improving the health of those others, by social contact and a smile, considerably higher.
There are smaller fines at £50 are for principal’s breaches associated with agency workers and for a worker’s failure to notify the employer of the the self-isolation. These have the appearance of top up fines but are intended to ensure workers give details to their employers and so are easier to find. A bigger point, however, is that payment of any of these fines is not reduced by early payment. They are fixed and required to be paid within 28 days, in default of which the recipient may be liable to prosecution.
There is no detail at all in the regulations as to the form of any notice to self-isolate except that it can’t be given by the NHS app. However, it is implicit in giving the notice that the authority will have recorded and retained personal data of the activities of any ‘close contact’. How else can they reasonably ‘consider’ close contact has occurred?
Therefore, the date and circumstances of alleged close contact should always be asked for immediately with sight, and as soon as possible copy of, the authority’s record of close contact demanded in accordance with GDPR rights to access personal data. If the record is not relevant to a lawful notice, demand written confirmation that the record is destroyed. Put the demand in writing, complain of breach of the GDPR if the information and the record not disclosed ‘as soon as possible’ (which ought to be immediately given they are relying on the record in serving the notice), complain to the authority and complaint to the Information Commissioner’s Office.
Otherwise, in relation to fines there is no appeal. It counts for nothing that a test may prove false so long as a specified person does not consider it appropriate to your release you from self-isolation. It does not matter that, as many top scientists and data analysts have been shouting, a large majority of ‘positive’ tests are simply wrong (perhaps as many as 93 out of 100, confirmed by Foreign Secretary, Dominic Raab on 23 September 2020).
Such issues may only arise if fines are not paid and these regulations are challenged, either on particular facts or technicality, or as being disproportionate and unnecessary and the most startling breach of the right to liberty under Article 5 of the European Convention on Human Rights.
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