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<p>Section 45R of the Public Health (Control of Diseases) Act 1984 enables Ministers
to use the made affirmative procedure, by which an Instrument can be made before it
is approved by Parliament. This is possible, provided the Minister makes a declaration
that circumstances warrant this approach, in order to tackle a serious and imminent
threat to public health. The inherent safeguard is that the Instrument will lapse
within 28 days, unless approved by Parliament.</p><p>In the Department’s Memorandum
of March 2009, which dealt with Regulations made under the 1984 Act, including the
ones that form a key part of our response to COVID-19, we explained that even if Regulations
had to be made in an emergency, taking effect before approval, a debate on an approval
motion could take place before the Regulations lapsed. This has been achieved throughout
the course of the outbreak. Furthermore, debates on approval motions, in both Houses,
took place on the Health Protection (Coronavirus, Restrictions) (England) (No. 4)
Regulations 2020 the day after they were made, and before they came into force.</p><p>The
nature of the COVID-19 pandemic is such that the Government’s response has to be agile,
in order to respond swiftly and effectively to evolving threats. The pandemic is therefore
a serious and imminent threat to public health. In introducing necessary and proportionate
measures to tackle its spread, delay can be harmful, and frustrate both the overall
response and the specific objectives of particular Instruments. The powers in the
1984 Act are therefore expressly provided in order to support the approach that the
Government has been taking.</p><p>The criteria referred to in section 2 of the Memorandum
and section 45G of the 1984 Act are:</p><p>- the individual is or may be infected
or contaminated,</p><p>- the infection or contamination is one which presents or could
present significant harm to human health,</p><p>- there is a risk that the individual
might infect or contaminate others, and</p><p>- it is necessary to make the order
to remove or reduce that risk.</p><p>These relate to specific orders made by a magistrate
and are not required to be considered for the making of Regulations. These underlying
principles are certainly applicable to the national response; and the Government’s
view is that the Regulations satisfy all of the criteria set out in the Act. In the
course of making Regulations under the 1984 Act, Ministers do undertake assessments
as to whether the proposed course of action is a necessary and proportionate response;
and it is clear that COVID-19 does represent a significant threat.</p>
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