Official Report: Minutes of Evidence

The Chairperson (Mr McGuigan): I welcome Chris Matthews, director of the emergency resilience and protecting health directorate in the Department of Health; Anne McNally, public health Bill team lead in the Department of Health; and Dr Jillian Johnston, a public health consultant in the Public Health Agency (PHA). You are all very welcome. I remind members and witnesses that we have an hour for this session, so we should all try to be succinct in our questions and answers. The session will be covered by Hansard. I invite you to present to us, and we will then take questions.

Mr Chris Matthews (Department of Health): Thank you very much, Chair. Good afternoon, and thank you for the opportunity to provide the Health Committee with an update on the draft public health Bill. The written briefing paper that was submitted last week provides an overview of the purpose of the draft public health Bill and a high-level summary of the responses that were received during the recent public consultation. We anticipate the full consultation analysis report being published around Easter. The briefing also sets out the planned next steps in the development of a Bill.

The consultation ran for 14 weeks between July and October 2024. The consultation document was designed to provide a broad spectrum of proposals for consideration and invited views on specific proposals for legislative change. The consultation was widely publicised and shared with over 500 individuals and organisations. As the briefing advised, the Department received over 8,200 responses to the consultation, over 2,000 of which were by email and post as opposed to through the online process. The majority of the responses were received from individuals, while around 50 were received from a wide range of organisations, including councils; trade unions; health and social care bodies; education providers; political parties; religious, community and voluntary groups; representatives of the judiciary; and several organisations that have an equality, data protection and human rights remit. The Department welcomes the considerable interest shown by all those who responded to the public consultation. The views that were expressed will shape how we collectively respond in an effective, appropriate and proportionate way to 21st-century public health incidents and emergencies. Crucially, any update to the Public Health Act (Northern Ireland) 1967 will incorporate human rights protections that have been introduced since it came into effect.

On health protection powers, a core focus of the proposals is on the idea of being able to respond to a broader range of contemporary or novel public health security issues and threats. It is important to state that there is no intention to deviate from the current day-to-day proportionate response approach to public health incidents and emergencies, which, in almost every situation, sees those involved voluntarily cooperating in the response to protect themselves, those close to them and the wider population. Whilst cooperation and the proportionate effective response are the standard, a range of safeguards and protections, including strict conditions and limitations, will be introduced to how we respond to health incidents and emergencies. Judicial approval, review periods, a right of appeal and compensation are protection measures that will be introduced. The reasons why the particular measures are necessary will also be clearly explained.

Moving beyond the standard response would only be considered in exceptional circumstances, where there is no other alternative and where doing so is supported by medical evidence and with the appropriate safeguards and protections. If a wider societal response is required and is the only option, that will be subject to the agreement of the Executive and the Assembly.

Due to the volume of consultation responses that were received, the detailed response analysis is still ongoing. However, we have identified themes that are emerging in the responses. I am pleased that the majority of organisations endorsed the need to update the existing public health legislation and provided helpful insights and advice from their areas of expertise. The points that specialist bodies raised will be particularly helpful in further developing the proposals.

I will make some reference to the human rights protections. The impact of the proposed health protection measures on personal rights and freedoms emerged as the most common area of concern amongst consultation respondents. A core purpose of the modernisation of the 1967 Act is to incorporate human rights protections into public health legislation and place safeguards and protections around any action that the Public Health Agency may seek to take. It is important to point out that many of the health protection powers that have been set out are already available under current public health legislation. Concerns were expressed on proposed powers to enter dwellings; ask questions and gather information; impose medical examinations and vaccinations; and isolate and quarantine individuals. Many organisations also stressed the importance of ensuring compliance with human rights legislation.

In early September, officials became aware that misinformation was circulating among the public on aspects of the consultation. In response, the Department published a fact file that sought to clarify the policy intent. The Department fully recognises that the issues that were discussed in the consultation document may have called up difficult memories of the COVID-19 pandemic experiences and the measures that were required to address it. The Minister has been very clear about the need to strike the right balance between safeguarding personal liberty and the Department's responsibility to protect the wider community. For that reason, we will continue to work closely with the Northern Ireland Human Rights Commission to ensure that the proposed measures align with human rights. A full human rights impact assessment will be undertaken, which will incorporate equality considerations. A full data protection impact assessment will also be undertaken.

I turn to preparedness and resilience. The Department is also leading on a broader programme of work to ensure a proportionate, appropriate and effective response to 21st-century public health incidents and emergencies. That includes developing our surveillance to better identify threats earlier and take timely action. We are also building resilience across the health and social care system and working with the Executive Office to develop cross-government resilience to better enable us to respond effectively and proportionately to public health incidents and emergencies.

I will finish on our planned next steps. Officials are working to finalise the consultation summary report, which will be shared with the Committee and published on the Department's website. The report will assist in the refinement of the policy proposals over the coming months. Since the consultation closed in October, the feedback that we received has helped to guide further targeted stakeholder engagement, such as with the Human Rights Commission and the Information Commissioner. Further engagement on roles and responsibilities will take place with a range of other stakeholders, including the Public Health Agency, environmental health colleagues and the emergency services.

The timeline for the introduction of the public health Bill will be subject to the necessary approvals and the Assembly's timetable. Officials will continue to liaise with the Office of the Legislative Counsel (OLC) on timescales.

Thank you for the opportunity to brief you on the progress of the Bill. We are happy to take questions.

The Chairperson (Mr McGuigan): Thank you very much. That clarification about engagement with the Human Rights Commission is important, and the Minister's commitment to a full human rights impact assessment is vital. You spoke about the time frame and engagement. The Minister was before us to talk about his legislative programme and budget, and he never mentioned the Bill. It would be useful if the Committee had some knowledge of the time frame. Is the Bill going to come in this mandate? If so, when in the mandate is it likely to come? What preparations are being made to make that happen?

Mr Matthews: From my perspective, no decision has been taken at this stage. I expect it to be introduced within the current mandate but that needs to be considered alongside the time frames for the other Bills that the Department is considering. I am involved in that conversation and there has been no decision. We continue, however, to complete the consultation review. We are already engaging with OLC and are continuing to progress the Bill. Decisions on the Bills that will be introduced in the mandate are taken by the Minister.

The Chairperson (Mr McGuigan): You spoke about the important engagement with the Human Rights Commission. What engagement is taking place with other Departments? Indeed, what engagement is taking place with the PSNI, which would, potentially, have a role or responsibility in enforcing the legislation?

Mr Matthews: There were initial meetings with the PSNI and other Departments. Once the consultation exercise has been completed, there will be further engagement and a communication strategy. We have not engaged further with the PSNI because we are still finalising the proposals in the Bill. The Bill will set the framework and then regulations will be tabled to reflect what is brought forward for consideration by the Committee and the Assembly on any powers that we give to the PHA so that it is able to take the necessary actions. That will happen, but it has not happened yet.

The Chairperson (Mr McGuigan): So, the Bill will set the framework, and then regulations will be brought forward. Will all the regulations be from within the Department of Health or is there a likelihood that some could be brought forward by other Departments?

Mr Matthews: There is no plan for any regulations to be brought forward by other Departments. It may be the case that, in an emergency situation, the Department would make regulations for another Department. That was the case during COVID, as the regulations became considerably more intricate in need. That concerned workers in the —. Which sector was it?

Mr McGrath: The hospitality sector.

Mr Matthews: It was, thank you. It was in the hospitality sector that the regulations became more intricate in need. In such circumstances, the consideration would be that those areas may be best placed to bring forward those pieces of legislation. However, that would be much further down the line.

The Chairperson (Mr McGuigan): Colin, you are next, but I am not sure whether you are giving evidence or taking evidence. [Laughter.]

Mr McGrath: Believe me, I am taking evidence.

I do not mean this in an offensive way but it will sound offensive, so I am giving that health warning at the start. This felt like an example of how not to go about a consultation. We were inundated with emails from people who read pieces of the information that was in the consultation. The information was presented in such a way that if you were technical and understood it, you probably got the run of it. However, if you were a conspiracy theorist, it gave you enough to be able to go on a long rant, and we got many of those. It was one of the issues on which I have received the most correspondence. The frustrating thing was that much of what was being said was not borne out if you actually read into it. It would have been fair to have said, "This is going to be pretty controversial. We need to be really careful about how we present it". However, the normal procedure was followed, the consultation began and it caused massive revulsion. I am sure that it was the same for other members, but I was getting dozens of emails at a time. Online petitions were set up and the emails were pinging in regularly.

What happened does lay bare something that is interesting with legislation. How much of the public consultation feedback was against or unhappy about the actual legislation? How much of the feedback is taken onboard? If you have 8,200 responses, and 8,000 are negative, do you go back to the drawing board? Do you highlight the negatives and try to change them? Is it the case that you have got the things that you presented and that is the way it going to be? Can we track the changes between the document that was presented and the one that is published after the feedback? Will you tell us about any major themes that outraged the public on which the Department has gone back to the drawing board?

Mr Matthews: A lot of it was about the human rights implications. To be fair, there was a lot of misunderstanding over the proposals and a belief that what we were going to do would have a negative impact on people's human rights. In fact, the opposite is the case. The 1967 Act does not cover human rights, whereas this Bill will. That is partly why we have worked very closely with the Human Rights Commission. We need to ensure that the narrative explains the various balances, controls and checks that will be in place to ensure that we do not give the impression that the Department is going to impose things on people.

If we produce a Bill and bring forward regulations, those regulations will be subject to scrutiny before they are introduced. All the checks and balances, such as the right to appeal or challenge a court order, will be there. A lot of what we are bringing forward enhances what is already there, but a lot of those powers already exist. As I mentioned in my opening remarks, the Public Health Agency has not been required to put any of those powers in place in the vast majority of situations. The purpose of the legislation is to bring it up to date for 21st-century risks. We are not just talking about highly infectious diseases; we are talking about contamination and other risks to human life. Most people respond and do what they are asked to do because they see the benefit for them and for their families and the wider public.

We have had issues relating to mpox and H5N1. Those have all been dealt with on a day-to-day basis by the Public Health Agency and health and social care staff. Dealing with them has not required those powers. We need to make sure that people understand that the Bill is trying to build in protections, but we are doing a lot of work to better prepare ourselves, not only for day-to-day responses but for emergencies. If an emergency happens today, how we respond and work with other Departments and colleagues in the South is important.

Planning for another pandemic is also a factor. One of my areas of responsibility is pandemic resilience. We are working with Health and Social Care (HSC) to develop our pandemic resilience. Stockpiling is part of that, as is better planning and responsiveness in HSC. We are working with TEO on the cross-government response, which will detail what Education and other Departments will do. That will also detail how we will ensure resilience so that, if we face a pandemic in the future, hopefully we will not have to go through the stages that we went through with COVID and we will be able to maintain our services. Stockpiling looks at vaccinations, PPE and face masks, and that fits in my area.

The responsibilities and what we are trying to do in the Bill are only one aspect of the overall learning that we are taking from our experiences during COVID. Issues were raised, and vaccination came up very clearly. The Minister said that vaccination was not going to be part of the Bill. We put everything out there to say what we would consider. As you will have read, between paragraphs 141 and 144, the consultation document talks about interventions for "persons, things or premises". Those interventions will not be in the Bill: they will be brought forward for detailed consideration in regulations.

All of that will be open to detailed scrutiny. We need to make people aware of what checks and balances there will be. Most people do the right thing, but we need to be able to respond if we find ourselves in a situation in which somebody has been infected and is not prepared to do what they need to do for their benefit and for others.

Mr McGrath: There were some really good key parts in that response that we need to pull out so that we can go back to people if they come to us. I was surprised that the email inbox did not start to ping again during the presentation, but there was good, clear information in that answer. There is no substantial human rights change in what is proposed at this stage from what was there previously; is that a fair comment?

Mr Matthews: The 1967 Act does not include human rights. The new Bill will, so I am not saying that you would, but, in the current legislation, there are areas where the PHA could impose something on somebody, and there would be no right of appeal. Under the human rights changes that we are proposing, there will be the right of appeal and the right to apply to the court, and the PHA will have to go to court to get a court order to do certain actions. For instance, if it needs access to premises, it can request that people give it access. If that person agrees, that is fine. If they say no, the PHA can take the next stage of action, which is to say, "If you do not give us this, we will go to the court and ask it to give us access", but the court will say, "You need to explain clearly why you need this, how long for, when it is going to be reviewed and when it will end", and that person will have the right of appeal against that too.

Mr McGrath: Perfect. That is great. Thank you very much.

Mrs Dodds: Thank you for the presentation. Getting 8,200 responses to a consultation is phenomenal, especially when it is a long, complicated and convoluted consultation, as it needs to be. That is fair enough. It is an amazing response. That was partly driven, I suppose, by the fact that COVID is still in everyone's memory. Many families and children are still suffering from the impact of COVID regulations, so I am not surprised that it was driven in that way.

A couple of things interest me about this. The proposals see enormous power being given to the Public Health Agency. For an arm's-length body, there is a substantial transfer to it under the proposals that we have read. However, the COVID inquiry tells us that the Public Health Agency did not always have the stats to back up some of the measures that we were asked to implement. Are you confident that the Public Health Agency will be able to do everything that the proposals request of it?

Mr Matthews: The short answer is yes. It already has the powers contained in many of the proposals to do with the day-to-day response to emergencies and issues that emerge, such as mpox, H5N1 and those sorts of highly infectious diseases. Part of the Bill is about improving surveillance so that the PHA knows earlier and more fully what is happening in relation to infectious diseases. The work that we are doing on pandemic resilience with the PHA, with the strategic planning and performance group (SPPG) and with colleagues in the UK and the Republic through data sharing and working together to plan better to respond to a pandemic will put the PHA in a better position to respond to a future pandemic, if that is where we find ourselves. Part of the pandemic resilience planning looks at our capacity for testing, vaccinations and PPE. We are looking to have a lot of the measures in place that we did not have at the start of the COVID pandemic, which will mean that we should be in a better position to respond to and address the issues that we face more quickly. The PHA's experience with that, particularly around contact tracing and such things, should put it in a much better position to respond.

Mrs Dodds: Maybe it would be useful, Chris, if the Committee received a briefing to tell us what has changed at the PHA that means that it will be able to do all the things that the COVID inquiry has demonstrated were a problem. Certainly I accept that, at the start, it was the unknown that was terribly difficult to deal with, but it is important that, if the new proposals invest this type of power in an arm's-length body of government, we are sufficiently sure that it is able to do it.

Finally, one of the things that was lacking during COVID was the fact that regs were brought to the Assembly weeks after they were implemented. In what circumstances will we be able to see forward planning to make sure that that sort of thing does not happen again?

Mr Matthews: The proposal in introducing the Bill is that we will hopefully not find ourselves in the situation, as happened before, where regulations come at such a late time and without proper scrutiny. Part of that is around the planning and the work that we are doing on PPE, the resilience and all of that. If we are in a position where we can respond more quickly at the beginning of the situation, that gives us time to then look to see what actions need to be taken across Northern Ireland, not just in Health but in Education and other areas, and how we then need to respond. The Bingham report also recommends that the Minister, based on medical advice, would bring a proposal to the Assembly for discussion and debate to say that we are going into an emergency situation and then have a decision that, based on the evidence, we will do that. That then moves us into the position of potentially bringing forward regulations for consideration in short time frames. I think that it is currently sitting at 14 days, and there is some discussion going on about potentially bringing that to seven days, but that would then need to be considered by this Committee and the Assembly to come up with Northern Ireland's response to making those regulations in those sorts of time frames.

Mr Donnelly: Thank you for your presentation. Like Colin and, I am sure, all other MLAs right across the Assembly, I got a lot of communication about this. Some of it was quite hysterical, it has to be said. Nazi Germany was brought up, and things that I am sure that the Department had no intention of ever bringing in were thrown around as if they were facts. You referenced it when you talked about misinformation.

The consultation was never about vaccinations, but it appeared to be hijacked by vaccinations. A lot of people who were concerned about it — not everybody — seemed, from my perspective, to be quite anti-vaccination. That refers to the misinformation, but I will ask you about that later. I appreciate the fact file that was put out. I think that it was possibly a bit on the late side, given the hysteria that came up. If that could have accompanied the consultation document initially, it would possibly have been able to allay some people's initial fears. The media generation that built up from that was quite a head of steam, and the Minister came out during the consultation period and distanced himself from aspects of the consultation, which was very surprising. It is not something that you normally expect.

My first question is about that misinformation that you cited. What specifically was the nature of the misinformation that you referred to?

Mr Matthews: In the main, the misinformation was around the impact on human rights, such as accessing people's houses without consent and putting them into hospital without their consent. A lot of it was about that infringement on them and their family and imposing things on them. One of the three fundamentals of the Bill was to ensure that it was human rights compliant, and that was based on the fact that the 1967 Act was not. It just went off and snowballed from there. There were a number of press releases and the fact file on that, and the Minister came out and said, "I have put all this out there for people to consider, but it is not my intention to bring forward the one around mandatory vaccinations". He tried to provide some clarity around that but also said that all of it is out there for people to consider. However, people got carried away with the human rights element and the idea of coming into people's home without their consent. That is not the intention whatsoever as regards accessing somebody's dwelling. If you need to access a dwelling, you will need to provide a magistrate with detailed information as to why you actually need to do that, and the person will have a right of appeal against that. All of that misinformation led to people thinking that we were trying to do things that were draconian when, in fact, we were actually trying to go in the other direction.

Mr Donnelly: Will those responses that reference what were referred to as "draconian measures" be weighed, given that there was an element of misinformation in them?

Mr Matthews: In considering those, yes, but we need to consider them in the context of the misinformation, so a key part of today, for me and the others, was to make sure that there was a clear understanding that this is about improving people's human rights. It is about giving people those protections; it is about making sure that those balances are all there. It is not about giving the PHA carte blanche. In fact, in some ways, it is about restricting what the PHA can do, because it will need to go to court etc, However, to go back to a point that I made earlier: it has not needed to do that. Day to day, in the work that it does — much of which the proposals already cover — people want to do the right thing because they are protecting themselves, their family, their neighbours etc. Those checks and balances will all be in that as well.

Mr Donnelly: How will the Bill improve human rights, particularly in relation to the European Convention on Human Rights and/or treaties such as the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities?

Mr Matthews: A full human rights impact assessment would look at all the equality issues as well. A data protection assessment would also be completed. As part of the UK, we are a signatory to a convention for health. One of the issues in that is to ensure that we have a broad response to health risks. We are currently not achieving that because our Act is from 1967. By doing what we are doing, we will ensure that we meet our requirements under that as well.

Mr Donnelly: So it is actually stronger on the grounds of human rights than —.

Mr Matthews: Oh, absolutely.

Mr Donnelly: The 1967 Act is quite outdated. The Bill will put into place a lot of the more recent human rights conventions.

Mr Matthews: Yes, and a lot of protections as well.

Mr Donnelly: No problem. I appreciate that lessons have to be learned from COVID. As Diane mentioned, there was a time when nothing was known about it and a lot of regulations were put in place very quickly. This will give us knowledge and make us better prepared for the next time.

Mr Matthews: Yes, along with the work that we are doing on our emergency planning, our pandemic resilience, the work in the Department of Health, the work across wider government and the work that we are doing with the UK. The UK Government will lead on Exercise Pegasus in the autumn. Northern Ireland will be a core part of that. Our colleagues in the South will run an exercise in early March, and people from my team and the Public Health Agency are going to observe. Obviously, a pandemic does not recognise a border, so we are working with our colleagues in the South on their pandemic planning and our pandemic planning because there is a lot that we need to do to improve data sharing, the relationships and all of that as well.

Mr Donnelly: I really appreciate that. Thank you very much.

Miss McAllister: Thank you very much for the presentation. Hopefully, moving forward, as we progress the Bill, we can ensure that the facts about what it will contain are front and centre. During the process of scrutinising the Bill, the Committee will also hear from the likes of the Human Rights Commission for that human rights-based evidence too.

You mentioned regulation-making powers, particularly the regulations around the Bingham report and the difference with the immediate emergency situation. The regulations that will be made in the Assembly will use the affirmative procedure. People are not aware of what that means; we are, as MLAs. Can you confirm that that means that they will only go ahead once they have been debated and approved in the Assembly?

Mr Matthews: That is always the intention. As I said to the Committee the last time that I was here, with all the planning to ensure that we are in the best place possible to respond in the future, that will certainly be the intention. However, the regulations will, potentially, provide for the ability to introduce something in an emergency situation that would need to be debated retrospectively, within seven to 14 days. It would be in for a limited time and, if it was not debated within 14 days, it would fall. Those are some of the things that we are considering for an emergency situation, but the work that we are doing is trying to make sure that we do not find ourselves in that position, while taking into account the Bingham recommendations and all the explanations that I have given around our pandemic resilience planning.

Miss McAllister: It is important to highlight that issue again. Also, I want to ask — maybe I am oversimplifying — about the power that organisations such as the Public Health Agency already have and what the Bill will look like at the end, compared with now.

Mr Matthews: It will put in additional protections and safeguards. It is not that the Public Health Agency would do something inappropriate, but the Bill will give individuals additional protections and safeguards from a number of angles. With the Bill, if regulations are approved for certain actions, they will go through scrutiny. If they are then put in place, they would include protections for the individual in that the Public Health Agency would have to get a magistrate's order for a certain action to be taken. The individual would also then have the right of appeal against that and, even if it is brought in, it would be time-limited and would have to be reviewed on a regular basis. There are a number of ways in which the legislation would give people better human rights protection than what is potentially the case now.

Miss McAllister: Thank you. It is important to highlight that again.

The briefing refers to aligning with UK jurisdictions. You also highlighted the Republic of Ireland, because a pandemic or epidemic does not see a border. It also refers to complying with the World Health Organization's international health regulations. Can you say a bit more about that: the coordination, is everything up to date and will there be any additions? I understand that the World Health Organization updates its guidance as time moves on. Have there been any changes?

Mr Matthews: There have been no significant changes. That is the legislation that I referred to when answering Danny's question. I could not remember it just then. It requires us to be able to respond to all hazards. We are not able to currently, but the Bill will enable us to do that.

Miss McAllister: If there are any additional changes on that global scale, would the Bill enable those changes to be included through regulations? If it includes all hazards, it includes all hazards, but if the World Health Organization's international health regulations are changed and updated, would that require additional legislation, or would the Bill enable those changes to be made through regulations?

Mr Matthews: The answer is that I cannot know until I see what it is that it brings forward, but it could require us to introduce regulations if something was to significantly change. At this stage, I just do not know.

Miss McAllister: It is another thing to note. We align with other jurisdictions and are a signatory to the World Health Organization so, if there are changes there, that does not mean that they are made here without scrutiny. That is important.

Mr Matthews: Yes, it would be scrutinised.

Miss McAllister: Thank you very much.

Mr Chambers: Chris, how does the figure of 8,200 responses fare in comparison with other departmental consultations? I presume that that is a significant response rate.

Mr Matthews: It has been a while since I have introduced a Bill but, from the knowledge of others, it is a significantly higher response rate than to any other Bill consultation.

Mr Chambers: Good. The Minister, in his intervention, accepted that public confidence was undermined. Going forward, how will you ensure that you get the public back on board again? With the greatest of respect to the three of you as professional individuals, it will not be you as faceless Chris or Dr Jillian or Anne on the firing line as the Bill is moulded and shaped: it will be us in the Chamber. How will you ensure that there is public confidence once again?

Mr Matthews: That will be though engagement with representatives, yourselves, others and the general messaging that we will need to put out on what the Bill is actually about and the opportunities that we have, such as today and coming back to the Committee in the future, to try to provide that clarity and understanding to the Committee and our key stakeholders about what the Bill is actually about. There are also others. There is the work that we are doing with the Human Rights Commission and the Information Commissioner. Their focus on the Bill, their understanding of it and their articulation of what, from their angle, the Bill is actually about will be some of the key aspects in trying to get the public to understand what it is about.

The Chairperson (Mr McGuigan): Thank you very much, Chris, Anne, Dr Jillian. Thank you for coming before the Committee. We appreciate that.