Recommendation 31

It is hoped that the vast majority of “potentially infectious” people will comply with public health advice, and that legal enforcement will not be necessary in such cases. In such circumstances, the Government must justify the continued need for an executive power to deprive a wide cohort of persons of their liberty. Article 5(1) (e) ECHR allows states to detain individuals “for the prevention of the spreading of infectious diseases … “. Although the case law on Article 5(1)(e) is very limited in this context, it is clear that the courts will consider whether less severe measures have been considered and found to be insufficient to safeguard the public interest, before using detention as a last resort. The Government must justify why it is necessary and proportionate for these extraordinary powers to remain law. In particular, the Government must provide evidence to Parliament that these powers are necessary for the prevention of the spread of Covid-19 and that the power to prosecute is not being misapplied. In the absence of any clear evidence to support the retention of these powers, they ought to be repealed.