Francis, R (On the Application Of) v The Secretary of State for Health And Social Care

The Secretary of State may impose self-isolation requirements under the public-health regulations where they restrict where an infected or exposed person may go or with whom they may have contact. Such requirements are distinct from statutory isolation or quarantine, which involve clinical management or supervision and exclusion of contact other than with those providing it. A self-isolation requirement is not detention merely because it is enforceable by sanctions or physical return. A power to remove a person to a suitable establishment concerns a place suitable for clinical management or supervision, not an ordinary home used for self-isolation.

The claimant challenged provisions of the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020. He argued that the Secretary of State lacked power under Part 2A of the Public Health (Control of Disease) Act 1984 to require self-isolation, to enforce it by return to the chosen place, or to impose restrictions falling within the statutory concepts of isolation, quarantine, detention or removal to a hospital or other suitable establishment.

The Divisional Court granted permission on the additional detention and removal grounds and determined the statutory-construction issues. The claimant accepted that self-isolation was proportionate, reasonable and rational. The central question was whether the challenged provisions fell within restrictions which the Act reserved to magistrates.

1. Ground 1 dismissed. Regulation 2(2)(a)(i) was within the Secretary of State’s regulation-making power. “Self-isolate” was a term of art defined by regulation 2(3): the person had to remain in a suitable chosen place, subject to specified exceptions. It was principally a restriction on where the person went and, to a lesser extent, with whom the person had contact, within section 45G(2)(j) of the Public Health (Control of Disease) Act 1984.
2. “Isolation or quarantine” in section 45G(2)(d) required more than compulsion or restrictions on movement. It involved clinical management or supervision and exclusion of contact except with those involved in that management or supervision. The distinction was supported by the different statutory language, the individualised evidential requirements for magistrates’ orders, related regulations, and the legislative context. Self-isolation did not require a clinical role.
3. Ground 2 dismissed. The self-isolation regime was not detention or imprisonment at common law. Applying Jalloh [2020] UKSC 4, imprisonment involved another person or authority defining the place where the individual had to stay. The Regulations allowed the individual to choose from a wide range of suitable places, to change place where necessary, and to leave for specified purposes or with reasonable excuse.
4. Ground 3 dismissed. Regulation 10(1)(b) did not unlawfully impose a power reserved to magistrates. “Other suitable establishment” in section 45G(2)(b) and (c) meant a place like a hospital, suitable for clinical management or supervision. A home could qualify only where appropriate clinical support was present. An ordinary home used for self-isolation was a suitable place for regulation 2, but not thereby a suitable establishment under section 45G.
5. The claim was dismissed. In accordance with the costs-capping order, there was no order for costs.

First-instance judicial review decision. The judgment noted the same-day Court of Appeal decision in R (Dolan, Monks and AB) v Secretary of State for Health and Social Care and the Secretary of State for Education [2020] EWCA Civ 1605, but held that it did not directly determine the construction issues in this claim.