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Health and Social Care Bill

moved Amendment No. 170: 170: Clause 123, page 70, line 29, after ““a”” insert ““significant”” The noble Earl said: I will speak also to Amendments Nos. 173A, 176, 178, 179 and 181. When a magistrate receives an application for a Part 2A order, there is a checklist of conditions that must be satisfied before an order may legally be granted. The checklist is similar whether the application relates to a person, a thing or a set of premises. In the case of a person, the JP has to be satisfied that he or she, "““is or may be infected or contaminated ... the infection or contamination is one which presents or could present significant harm to human health ... there is a risk that P might infect or contaminate others ... it is necessary to make the order in order to remove or reduce that risk””." The checklist does not include any threshold of risk. The degree of risk, or the size of the threat to public health presented by a given set of circumstances, can of course vary enormously. It can be anything from a remote risk and a distant threat to a high risk and a serious and imminent threat. But the clause leaves the whole issue completely open. Under new Sections 45C(6) and 45D(4) special restrictions or requirements can be imposed in one of two ways: they can either be imposed by a magistrate or, in certain circumstances, by means of regulations where there is a serious and imminent threat to public health. The inference to be drawn from this is that an application to a magistrate for a Part 2A order could in theory be made in circumstances where the threat to public health is a good deal lower than serious and imminent. One could have an overcautious local authority applying to take quite draconian action in the face of a risk that by most people’s standards was remote. That may sound unlikely, but the drafting of the clause at present seems to offer no barrier to the granting of an order in such circumstances. It is true that the magistrate has to be satisfied that it is necessary to make the order to remove or reduce the risk, but a local authority might argue that an order, and only an order, would achieve the objective of reducing the risk. There is no proportionality test here—the noble Baroness, Lady Stern, made that point earlier. That is different from proposed new Section 45D(1), which stipulates that public health regulations may be made only if the, "““Minister considers …that the restriction or requirement is proportionate to what is sought to be achieved””." An order by a magistrate could in theory be imposed even if it was wholly disproportionate to the end result or to the degree of risk apparent at the time of the application. The amendments, therefore, seek to strike a note of realism into the provisions by saying that the degree of risk of infection or contamination must in all cases be significant before an order may be granted. I hope that the Minister will give this proposal some serious consideration. I beg to move.