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Health and Social Care Bill

moved Amendment No. 161: 161: Clause 123, page 68, leave out lines 15 to 17 The noble Earl said: In moving Amendment No. 161, I shall speak to Amendment No. 162 and, very briefly, to Amendment No. 166A. Clause 123 brings us to Part 3 and to the very important provisions relating to public health. Let me say at the outset that I understand fully, and I support, the need for Parliament to bring our public health legislation up to date and at the same to time to bring it in line with international health regulations. Much of our public health law dates back to the 19th century. As such, it fails to address a number of matters which under most people's reckoning fall within the definition of public health hazards, the most obvious examples being nuclear radiation and chemical contamination. I accept that the law needs to cover these in a way that makes it possible for the relevant authorities to protect the public in an appropriate manner. I also accept the desirability of implementing the recommendations of the World Health Organisation, as reflected in the International Health Regulations of 2005. These now cover infectious diseases in general, rather than naming specific diseases as they used to, and they are also concerned with hazards relating to contamination. What we have in Clause 123 is a series of new sections to be inserted into the Public Health (Control of Disease) Act 1984 which are designed to cover all relevant types of hazard falling under the heading of infection or contamination. While I recognise that this approach is clearly sensible if we are to cater for public health threats that are as yet unknown—and one thinks back to the threat posed by SARS a few years ago—the inevitable feature of it is that the measures in the Bill that are designed to address these disparate threats have to be couched in quite sweeping and vague terms. Under the old-fashioned variety of regulations, we were dealing with specific named infectious diseases such as plague and cholera. The severity of those threats is well understood and the measures needed to avoid their spread are well established. However, once we start dealing with threats that of their nature cannot be defined, because they are as yet unknown, we are into rather different territory. We can provide only in a general way for the measures that may possibly be needed to counter them, even though we cannot say anything substantive about them. We are also in different territory with the threats posed by chemical and nuclear contamination because, whereas immediate quarantine is appropriate for someone suffering from plague, there is usually no necessity to quarantine a person who may have come into contact with a hazardous chemical. Rather what you do is to try to ring-fence the contamination and keep people away from it. Nuclear contamination falls somewhere between the two. If a place is contaminated, you will want to evacuate the affected area. If, on the other hand, like the unfortunate Mr Litvinenko, someone ingests a nuclear isotope, you will want to isolate that person as well as make sure that the source of the radioactivity does not pose a danger to others. The result of legislating for this very broad range of threats is a set of all-singing, all-dancing statutory provisions which, if passed into law, will be totally reliant on clear guidance being issued if the relevant public authorities are to implement the law in a way that is both discriminating and proportionate. In new Section 45C we find exactly where this all leads to. New subsection (1) gives the appropriate Minister a power to make regulations, "““for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination””." In new subsection (2)(b) we see that the power may be exercised, "““so as to make provision of a general nature, to make contingent provision or to make specific provision in response to a particular set of circumstances””." In other words, it is a very sweeping power indeed. I say that because we are dealing here with measures which are not defined in the Bill but which Ministers can bring into force more or less at the stroke of a pen without the prior approval of a magistrate. These include, in new subsection (3)(c), a provision, "““imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health””." In other words, Ministers, by regulation, are being given considerable power to limit and constrain the daily lives and freedoms of citizens.