What has just happened?
In mid-August this year, Health Secretary Matt Hancock gave an executive order to disband Public Health England. The executive agency will be merged with the NHS Test and Trace programme to form the new National Institute for Health Protection (NIHP)[1], promised for September. Now in October, the new institution is still “pending”, delayed until spring 2021.[2]
What does this mean?
Since April 2013, Public Health England has existed to protect the health and well-being of the nation however, the COVID pandemic has put focus primarily on public health protection and infectious disease capability.[3][4], placing more pressure on an already stretched and underfunded healthcare system.
Tory peer Dido Harding has been appointed to head up the new agency. This is a very controversial appointment,[5] since she is also the figurehead for the widely criticised[6] NHS Track and Trace initiative[7]
Public Health England will be scrapped and replaced with a unit that will specifically deal with pandemics.
The argument put forward by the Health Secretary to introduce the NIHP was based on PHE’s response to dealing with the Coronavirus epidemic. However, the general reaction from within the health sector has been one of outrage at the decision, with doctors and nurses from institutions such as the BMA and the Royal Society of Physicians asserting that the disbandment of the agency is a strategic move by the government to shift the blame away from its own response to the crisis.[8] Scientists and NHS trusts said if ministers are unhappy with PHE’s performance they have only themselves blame as it is directly under ministerial control.[9]
What does this mean for the legal sector?
Since the epidemic began, executive moves like this from ministers have become more common place. Minsters have been taking full advantage of the Civil Contingencies Act 2004, which allows ministers to take emergency powers in the event of a “catastrophic emergency”, when the government needs to bring in powers rapidly.[10] Having gotten used to these unprecedented powers, it seems the Health Minister is using this to also make changes to institutions, debatably unnecessarily.
Christina Marriott, chief executive of the Royal Society for Public Health has questioned the timing of the move made in the midst of a global pandemic and without a public injury into the agencies’ apparent failings.[11] There is also concern from Dr. Chaand Nagpaul, the leader of the BMA, about whether the appointment of a Tory peer will politicise a health agency that in their view should remain as a strictly public body.[12]
In disbanding PHE, Hancock acted as the executive, legislature and judiciary, showing a woeful disregard for the constitutional principle of the Separation of Powers. It also signals a possible departure from the Rule of Law, in that ministers are not to be held accountable for their decisions in these times of upheaval and emergency.
Written by Hannah Phelvin
Assessing firms:
#SlaterandGordon #IrwinMitchell #Kennedys #AnthonyCollins
References:
[1] Eleanor Langford, ‘Public Health England to be scrapped after criticism of how it handled the coronavirus crisis’, (Politics Home, 16th August 2020)
[2] ITV News, ‘Government under fire over decision to ‘axe’ Public Health England’, (16th August 2020)
[3] Department of Health and Social Care, ‘Government creates new National Institute for Health protection’, (Gov.co.uk, 18 August 2020)
[4] Denis Campbell and Juliet Garside, ‘Dido Harding to run agency replacing Public Health England’, (The Guardian, 17 August 2020)
[5] Nicole Kobie, ‘The NHS Test and Trace app has two flaws: QR codes and people’, (Wired, 22nd September 2020)
[6] ITV News ‘Covid Test and Trace app updated after confusion with “phantom alert”’, (13th October 2020)
[7] Ibid.
[8] Ibid
[9] Ibid
[10]Alex Nice, Raphael Hogarth, Joe Marshall, Catherine Haddon ‘Emergency Powers’ (The institute for government https://www.instituteforgovernment.org.uk/explainers/emergency-powers)
[11] Ibid
[12] Ibid.
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.