Section 49
1(1)The Scottish Ministers may by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland (whether from risks originating there or elsewhere).S
(2)The power in sub-paragraph (1) may be exercised—
(a)in relation to infection or contamination generally or in relation to particular forms of infection or contamination, and
(b)so as to make provision of a general nature, to make contingent provision or to make specific provision in response to a particular set of circumstances.
(3)Regulations under sub-paragraph (1) may in particular include provision—
(a)imposing duties on registered medical practitioners or other persons to record and notify cases or suspected cases of infection or contamination,
(b)conferring on local authorities, health boards or other persons functions in relation to the monitoring of public health risks, and
(c)imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health.
(4)The restrictions or requirements mentioned in sub-paragraph (3)(c) include in particular—
(a)a requirement that a child is to be kept away from school,
(b)a prohibition or restriction relating to the holding of an event or gathering,
(c)a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies or the handling, transport or disposal of human remains, and
(d)a special restriction or requirement (see paragraph 4).
(5)The power in sub-paragraph (1) is subject to paragraphs 2 and 3.
(6)For the purposes of this Schedule, “health board” and “local authority” have the meanings given in section 124 of the Public Health etc. (Scotland) Act 2008.
2(1)Regulations under paragraph 1(1) may not include provision imposing a restriction or requirement by virtue of sub-paragraph (3)(c) of that paragraph unless the Scottish Ministers consider, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.S
(2)Regulations under paragraph 1(1) may not include provision enabling the imposition of a restriction or requirement by virtue of sub-paragraph (3)(c) of that paragraph unless the regulations provide that a decision to impose such a restriction or requirement may only be taken if the person taking it considers, when taking the decision, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.
(3)Regulations under paragraph 1(1) may not include provision imposing a special restriction or requirement mentioned in paragraph 4(2)(a), (b), (c) or (d).
(4)Regulations under paragraph 1(1) may not include provision enabling the imposition of a special restriction or requirement unless—
(a)the regulations are made in response to a serious and imminent threat to public health, or
(b)imposition of the restriction or requirement is expressed to be contingent on there being such a threat at the time when it is imposed.
(5)For the purposes of this paragraph—
(a)regulations “enable the imposition of a restriction or requirement” if the restriction or requirement is imposed by virtue of a decision taken under the regulations by the Scottish Ministers, a local authority, health board or other person;
(b)regulations “impose a restriction or requirement” if the restriction or requirement is imposed without any such decision.
3(1)Regulations under paragraph 1(1) may not include provision requiring a person to undergo medical treatment.S
(2)“Medical treatment” includes vaccination and other prophylactic treatment.
4(1)For the purposes of this Schedule—S
(a)a “special restriction or requirement” means a restriction or requirement mentioned in sub-paragraphs (2) to (4), but
(b)a restriction or requirement mentioned in paragraph 1(4)(a), (b) or (c) is not to be regarded as a special restriction or requirement.
(2)In relation to a person, that the person—
(a)submit to medical examination;
(b)be removed to a hospital or other suitable establishment;
(c)be detained in a hospital or other suitable establishment;
(d)be kept in isolation or quarantine;
(e)be disinfected or decontaminated;
(f)wear protective clothing;
(g)provide information or answer questions about the person's health or other circumstances;
(h)has their health monitored and the results reported;
(i)attend training or advice sessions on how to reduce the risk of infecting or contaminating others;
(j)be subject to restrictions as to where the person may go or with whom the person has contact;
(k)abstain from working or trading.
(3)In relation to a thing—
(a)that the thing be seized or retained;
(b)that the thing be kept in isolation or quarantine;
(c)that the thing be disinfected or decontaminated;
(d)in the case of a dead body, that the body be buried or cremated;
(e)in any other case, that the thing be destroyed or disposed of.
(4)In relation to premises—
(a)that the premises be closed;
(b)that, in the case of a conveyance or movable structure, the conveyance or structure be detained;
(c)that the premises be disinfected or decontaminated;
(d)that, in the case of a building, conveyance or structure, the premises be destroyed.
(5)For the purposes of this paragraph—
“hospital” has the meaning given in section 124 of the Public Health etc. (Scotland) Act 2008;
“premises” includes any place and, in particular, includes—
any vehicle, train, vessel or aircraft,
any tent or movable structure, and
any offshore installation (as defined in regulation 3 of the Offshore Installations and Pipeline Works (Management and Administration) Regulations 1995 (S.I. 1995/738)).
5(1)This paragraph makes further provision about regulations under paragraph 1(1).S
(2)The regulations may—
(a)confer functions on local authorities, health boards and other persons;
(b)create offences;
(c)enable a court to order a person convicted of any such offence to take or pay for remedial action in appropriate circumstances;
(d)provide for the execution and enforcement of restrictions and requirements imposed by or under the regulations;
(e)provide for appeals from and reviews of decisions taken under the regulations;
(f)permit or prohibit the levy of charges;
(g)permit or require the payment of incentive payments, compensation and expenses;
(h)provide for the resolution of disputes.
(3)The regulations may also make—
(a)different provision for different purposes or different areas,
(b)such incidental, supplementary, consequential, transitional or transitory provision as the Scottish Ministers consider appropriate.
(4)The maximum penalties that may be imposed in relation to offences created under the regulations are—
(a)on summary conviction, imprisonment for a period not exceeding 12 months or a fine not exceeding the statutory maximum (or both),
(b)on conviction on indictment, imprisonment for a period not exceeding two years or a fine (or both).
(5)The regulations must provide for a right of appeal to the sheriff against any decision taken under the regulations by virtue of which a special restriction or requirement is imposed on or in relation to a person, thing or premises.
(6)Regulations that enable a special restriction or requirement to be imposed by virtue of a decision taken under the regulations must also provide that, if the restriction or requirement is capable of remaining in force in relation to any person, thing or premises for more than a specified period, a specified person may require the continuation of the restriction or requirement to be reviewed in accordance with the regulations at specified intervals by a person determined in accordance with the regulations.
(7)In relation to a special restriction or requirement mentioned in paragraph 4(2)(c) or (d)—
(a)the period specified by virtue of sub-paragraph (6) of this paragraph and the intervals specified by virtue of that sub-paragraph must be 28 days or less, and
(b)the regulations must require the continuation of the restriction or requirement to be reviewed without an application being made.
(8)For the purposes of this paragraph “specified” means specified in the regulations.
6(1)Regulations under paragraph 1(1) are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010).S
(2)Sub-paragraph (1) does not apply if the Scottish Ministers consider that the regulations need to be made urgently.
(3)Where sub-paragraph (2) applies, the regulations (the “emergency regulations”)—
(a)must be laid before the Scottish Parliament; and
(b)cease to have effect on the expiry of the period of 28 days beginning with the date on which the regulations were made unless, before the expiry of that period, the regulations have been approved by a resolution of the Parliament.
(4)Sub-paragraph (3)(b) does not apply in relation to regulations which—
(a)revoke (in whole or in part) emergency regulations; and
(b)do—
(i)nothing else; or
(ii)nothing else except make provision incidental or supplementary to the revocation.
(5)In calculating any period of 28 days for the purposes of sub-paragraph (3)(b), no account is to be taken of any period during which the Scottish Parliament is—
(a)dissolved; or
(b)in recess for more than 4 days.
(6)Where emergency regulations cease to have effect under sub-paragraph (3)(b), that does not—
(a)affect anything previously done by reference to the regulations;
(b)prevent new emergency regulations being made to the same or similar effect.