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Covid-19 Testing and the Dissonance of Law

The Coronavirus Act 2020 came into force on 25 March (s. 87). For the next two years at least, it is likely to represent the UK Government’s main legal response to the coronavirus outbreak (s. 89(1) and s. 90). Like all legislative texts, the Coronavirus Act does not simply confer powers on some and impose obligations on others; it also constructs a narrative about why the society on which it will operate is in need of further ordering. Such narratives often highlight the dissonance between law and society, and this is certainly true of the provisions of the Coronavirus Act relating to “potentially infected persons” (s.51 & schedule 21: pp. 233-271).

There is no legal right under the Act for even essential workers to be tested for Covid-19. Instead, Schedule 21 grants powers to police, immigration and public health officers (1(1)(a) to “ or a place suitable for screening and assessment…” (see generally 6-13) anyone who “, or may be, infected or contaminated with coronavirus, and there is a risk that the person might infect or contaminate others with coronavirus…” (2 (1) (a)).

A large percentage of the UK population (on some estimates, 80%) are expected to contract what is known to be a highly contagious virus. Therefore, the extent of the reach of the section 51/schedule 21 provisions (the details of which are merely touched upon here) cannot be exaggerated. However, I reference these provisions mainly to highlight the huge dissonance between the law and the society which the law purports to order. The Coronavirus Act constructs a legal narrative of a society that must be compelled to test for the virus, and this narrative is strikingly at odds with an emerging consensus - among people from all walks of life in the UK - over the urgent need for community testing.

In failing to establish a right to be tested for the Covid-19 virus, this piece of emergency public health legislation mutes the pleas for protection from those who are especially vulnerable to being exposed to the coronavirus infection. But the injury to the public does not end there: for the Coronavirus Act will form part of an archive from which future historians will write of this public health emergency, and what they will read from it is a narrative of an ailing community that needed to be literally dragged by its heels to the various virus testing centres.

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