Wednesday, 10 February 2021

Hotel Quarantine ~ concerns : Guidance issued 11 February : Law issued 12 February

On 8 June 2020 quarantine requirements were introduced for arrivals in England - previous posts 5 June 2020.  Other parts of the United Kingdom followed suit with similar requirements.

Since June 2020, a number of changes have taken place to the regulations applicable to quarantine. The details of the changes are not considered further in this post which concentrates on the government's plans to introduce mandatory quarantine in hotels. The Health Secretary (Matt Hancock MP) announced to Parliament that this will take effect from 0400 am on 15 February 2021 and see, for example, The Guardian 9 February - Covid travel rule-breakers could face 10-year jail terms, says Hancock.

Mr Hancock said that the new system was for England but

the government was working with (a) the devolved administrations on similar schemes and (b) with the Irish Government to put in place a scheme that works across the common travel area.

A number of other countries have adopted a similar requirement - Sky News 5 February. For example, it has been a requirement in Australia since March 2020 and from 9 April in New Zealand where the term "managed isolation" has been used.

Outline:

The UK Health Secretary informed Parliament that, from 15 February a new system of hotel quarantine would apply for UK and Irish residents who have been in red list countries (here) in the last 10 days. Any returning residents from those countries will have to quarantine in an assigned hotel room for 10 days from the time of arrival. Before they travel, they will have to book through an online platform and pay for a quarantine package, costing £1,750 for an individual travelling alone, which includes the hotel, transport and testing. That booking system will go live on Thursday (11 February) when the government will publish the full detailed guidance.

The hotel quarantine requirements are stringent. When individuals arrive in the UK  they will be escorted to a designated hotel, which will be closed to guests who are not quarantining, for 10 days or longer if they test positive for covid-19 during their stay. They must remain in their allocated rooms and will not be permitted to mix with other guests. There will be visible security in place to ensure compliance, alongside necessary support.

A further requirement is for testing. All passengers are already required to take a pre-departure test and cannot travel to the UK if it is positive. From 15 February, all international arrivals, whether under home quarantine or hotel quarantine, will be required by law to take further PCR tests on day two and day eight of that quarantine. Passengers will have to book those tests through the online portal before they travel. If either of these post-arrival tests comes back positive, they will have to quarantine for a further 10 days from the date of the test and will be offered any NHS treatment that is necessary.

Any positive result will automatically undergo genomic sequencing to confirm whether they have a variant of concern. 

Hancock also spoke about enforcement for both home quarantine and hotel quarantine. There will be a £1,000 penalty for any international arrival who fails to take a mandatory test; a £2,000 penalty for any international arrival who fails to take the second mandatory test, as well as automatically extending their quarantine period to 14 days; and a £5,000 fixed penalty notice, rising to £10,000, for arrivals who fail to quarantine in a designated hotel. 

Further,  providing false information on the passenger locator form will attract a possible prison sentence of up to 10 years if a person tried to conceal that they been in a red list country in the 10 days before arrival in the UK. 

Concerns:

The impact of coronavirus in the UK continues to be severe. On 9 February a further 12,364 new cases were detected and, up to that date, deaths totalled 113,850.  The quarantine regime has been of some concern with at least one scientist describing it as "pretty lax"- Huffpost 17 January. Many will therefore undoubtedly think that it is high time that more stringent measures were put in place.

At the time of writing it is not entirely clear how the proposed 10 year maximum term will be made applicable to the false information offence. The Public Health (Control of Disease) Act 1984 does not enable Ministers to impose such a penalty when making Regulations. 

One suggestion is that charges under the Forgery and Counterfeiting Act 1991 may be used. Certain offences under that Act carry a maximum of 10 years imprisonment. False information on the passenger locator form would be a serious matter but a maximum sentence of 10 years seems disproportionate and some might well consider it to be outrageous.

Those subjected to hotel quarantine will be subject to a form of detention imposed by the State. This brings into play Article 5 of the European Convention on Human Rights. This is so even though the quarantined individual will have had to book in advance ! 

The European Convention Article 5 states that - "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law."  One of the cases is Article 5(1)(e) - "the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ..."

The applicability of Article 5 in relation to prevention of infectious disease has not attracted a great deal of attention prior to the coronavirus pandemic. One reported case - Enhorn v Sweden 2005 - concerned a man diagnosed in 1994 with HIV.  The case is discussed at ILGA Europe - Sweden violated human rights by compulsory isolating HIV positive person.

A European Court of Human Rights document about Article 5 notes - "The essential criteria when assessing the 'lawfulness' of the detention of a person "for the spreading of infectious diseases" are whether the spreading of the infectious disease is dangerous to public health or safety; and whether detention of the person infected is the last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest."

Readers will see one obvious difference between the facts in Einhorn v Sweden and the situation of those to be subjected to hotel quarantine. Mr Einhorn had already been diagnosed with HIV. Those to be subjected to hotel quarantine may not have any coronavirus infection and the quarantine is therefore a purely precautionary measure.

Precisely how the convention and domestic law will interact in this area remains to be seen and, in this post, I do not comment further on this. The relevant legislation has yet to be made and published. I will update the post in due course.

Coronavirus Act 2020:

The Coronavirus Act 2020 section 51 and Schedule 21 give powers to the Secretary of State which are exercisable in relation to potentially infected persons. This is not considered further here but see previous post April 2020.

Articles of interest:

BBC News - How are European countries tackling the pandemic?

Institute for Government 9 February 2021 - Hotel Quarantine

Journal of Law and the Biosciences - 20 April 2020 - The United Kingdom's Coronavirus Act, deprivations of liberty, and the right to liberty and security of the person

Medical Law Review Spring 2006 - The exercise of public health powers in cases of infectious disease: Human Rights Implications - note the article predates the 2008 amendments to the Public Health (Control of Disease) Act 1984.

Health and Human Resource - Defining the grounds for compulsory isolation of a patient with an infectious disease

 *** Guidance issued 11 February 2021 ***

UK Government - Booking and staying in a quarantine hotel when you arrive in England

Hotel quarantine: what it is

Everyone who arrives into England must quarantine for 10 days from the point of their arrival. The day of arrival in England will be treated as day zero.

To stop the spread of potentially harmful variants into the UK, more stringent measures are in place for people who have travelled from or passed through a country on the list where travel to the UK is banned (the ‘red list’) in the last 10 days before arrival.

From 15 February, you must quarantine in a managed quarantine hotel if you’ve travelled from or passed through a country on the list where travel to the UK is banned.

Who has to go into hotel quarantine

If you are a British or Irish national, or third country national with residence rights in the UK and you have been in or passed through a red-list country in the 10 days before your arrival, you will need to quarantine in a managed quarantine hotel, unless you’re exempt.

 *** The law ***

The Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 7) Regulations 2021 amending The Health Protection (Coronavirus, International Travel) (England) Regulations 2020.

In force 0400 am on 15 February 2021.

Amendments are also made to other legislation. 


10, 11 and 12 February 2021

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