27th March 2020
This post provides a guided tour of the restrictions on freedom of movement introduced yesterday under emergency coronavirus legislation.
The restrictions were introduced by Regulations, and the Regulations are published here (and in pdf form here).
The Regulations apply to England, and there will be similar provisions for Scotland, Wales and Northern Ireland – this guided tour is only of the English provisions.
This post first sets out a summary of the law and then a commentary – I have made this law/commentary distinction so that my comments are not mistaken for an exposition of the law.
And although I usually do not give a disclaimer, I will on this occasion: this post is not legal advice but general guidance.
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THE LAW
The Legal Framework
The new laws are officially called The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
These Regulations are made under the Public Health (Control of Disease) Act 1984.
This 1984 Act – which has been heavily amended in the years since its enactment – provides wide powers for the Secretary of State for Health in the event of, among other things, the control of contagious diseases, such as coronavirus.
That the Regulations are made under the 1984 Act is legally significant.
If the Regulations are outside the scope of the 1984 Act then, in principle, the High Court can quash the Regulations, in addition to quashing any direction made under the Regulations by the Health Secretary.
The Regulations also have not had any scrutiny or approval by parliament, and they have been made under the 1984 Act’s emergency procedure (section 45R) – this means that parliament has to now approve the Regulations within 28 days.
The Regulations had immediate effect, as of 1pm yesterday, 26th March 2020.
The Regulations are for the statutory purpose of “preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination” (section 45C(1) of the 1984 Act).
(The Regulations are also under those provisions of the 1984 Act that expressly allow the Health Secretary to make regulations by statutory instrument (section 45P of the 1984 Act) and to create criminal offences and to make and enforce restrictions and to impose requirements (sections 45C(3)(c) and (d) and 45F(2) of the 1984 Act).)
The 1984 Act allows – and is intended to allow – the Health Secretary wide powers to deal with a public health emergency – but the powers must only be used in respect of that emergency.
(And please note the Regulations are made by the Health Secretary under public health legislation – and not by the Home Secretary, despite her claim yesterday).
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Duration
On the assumption that the Regulations get parliamentary approval within 28 days, the long-stop date for their expiry is in six months’ time (Regulation 12).
The Regulations are intended to last as long as the “emergency period” (Regulation 3(1)) that is deemed to have started yesterday (26th March 2020) and it is the Health Secretary who decides when that ends .
The Health Secretary, however, is obliged to keep the need for the restrictions and requirements under review at least every 21 days, with the first review being carried out on 16 April (Regulation 3(2)).
If the Health Secretary considers any restrictions or requirements are no longer needed, then that restriction or requirement can be terminated (Regulation 3(3)).
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The Prohibition on Freedom of Movement
The primary prohibition on freedom of movement is under Regulation 6.
Regulation 6(1) provides the general prohibition that during the emergency period “no person may leave the place where they are living without reasonable excuse”.
The only exception to this general prohibition is, in any circumstances, that you have a “reasonable excuse”.
The term “reasonable excuse” is not defined, but there is a non-exhaustive list of thirteen examples.
Each of these listed examples is subject to a test of necessity (because of the word “need” at the head of the regulation) – and this probably means that any other reasonable excuse would also have to be necessary.
There is no express limit on how often any of these excuses may be used on any day (contrary to the Prime Minister’s earlier statement that exercise or essential shops will be limited to once a day) – though frequency would be part of the twin tests of reasonableness and necessity.
Some of the excuses are vague.
For example, the excuse of “exercise” (Regulation 6(2)(b)) does not define what this general term means.
The excuse of obtaining necessities (Regulation 6(2)(a)) does not explain what is meant by “basic necessities” as opposed to “necessities” (and perhaps the person drafting this provision had the Jungle Book song in their head).
The same excuse also uses the tautology of “need…to obtain…necessities” which perhaps indicates the rushed speed of the drafting process.
There are however some welcome provisions.
Regulation 6(2)(m) provides that it is a reasonable excuse to “avoid injury or illness or to escape the risk of harm”.
This is a low threshold – you do not need to show you are escaping harm, just the risk of it.
And there is no reason why Regulation 6(2)(m) should not apply to mental illness or risk of harm, which means it can be relied on by those needing to leave where they live for mental health reasons.
It will be for you, however, to show that you have a reasonable excuse and a failure to do so will mean you are committing a criminal offence.
(Note this general prohibition expressly does not apply to the “homeless” (Regulation 6(4)), although homeless is not a defined term.)
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The Criminal Offences
If you breach the prohibition then you will be committing a criminal offence (Regulation 9(1)).
There are also offences of obstruction and of contravening directions Regulation 9(2) and (3).
The punishment for these offences will be a fine at the magistrates’ court Regulation 9(4).
In essence: if you breach the prohibition – either without any excuse or if your excuse fails the twin tests of necessity and reasonableness – then, in principle, you will receive a criminal conviction and a criminal record.
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The severity of the potential criminal sanctions is mitigated to an extent by a regime of Fixed Penalty Notices under Regulation 10.
It is important to note that these Notices only “may” be issued – there is no obligation that you would be offered the opportunity of a Notice instead of a prosecution.
If a Notice is issued then you can avoid any potential criminal liability by payment of a fine of £60 (or £30 if paid in 14 days).
If you are accused by a police officer of breaching the prohibition and you believe this accusation is unfair then you face the dilemma of either paying the fine or, as the police like to put it, “having your day in court”.
It is not yet clear whether payment of these fines, or the issue of Notices, would be on any extended criminal records check.
These Notices thereby place considerable practical discretion and power in the hands of police officers (which also include here community support police officers).
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Coercion
The prohibition can also be enforced by the police by directing or removing a person to the place where they live (Regulation 8(3)).
In removing a person, the police are expressly allowed to use “reasonable force” (Regulation 8(4)).
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COMMENTARY
These provisions – which are alongside prohibitions on freedom of assembly, freedom of worship and freedom to conduct business – are the most illiberal laws imposed in England since at least the second world war.
The laws have not had any parliamentary debate or approval, they impose a form of (in effect) house arrest, create wide offences, and they hand immense power to police officers.
All this is justified – there is a public health emergency, and the powers under the 1984 Act exist for just this sort of emergency.
The main problem is that the illiberal provisions are subject to vague exceptions, and this is a worrying combination at a time of an emergency.
This problem is mitigated but not eliminated by the Fixed Penalty Regime, when the police choose to use it.
And it is a relief that the Regulations as a whole (and ministerial directions made under them) are subject to potential challenge at the High Court.
But in practical terms, there is considerable scope for these provisions to be misused by police officers, with almost no practical safeguards.
Measures like this, in addition to being tough, need to be credible.
Misuse of these emergency powers will make the regime less credible, thereby undermining the very public health purpose that the Regulations are there to achieve.
Just as it takes one person being idiotic to spread this disease, it takes only one police officer being idiotic to discredit this emergency public health regime.
There needs to be self-restraint on all sides
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Comments are welcome but pre-moderated, and so comments will not be published if irksome.
Arguably any one who drives a motor car has always been subject to this regime of police discretion, given that the offence of careless driving exists.
It is interesting that the Welsh regulations DO limit the taking of exercise to once a day.
8.—(1) During the emergency period, no person may leave the place where they are living without reasonable excuse.
(2) For the purposes of paragraph (1), a reasonable
excuse includes the need— […]
(b) to take exercise, no more than once a day, either alone or with other members of the household.
Does the change some time ago to empowering “the Secretary of State” generically, rather than specifying, say, “The Secretary of State for Transport” mean that the Home Secretary could pitentially exercise these powers, not just the Health Sec? (Not that that would make Priti Patel’s statement accurate in this particular case, I realise.)
Only in theory
If another Secretary of State sought to exercise these powers for a collateral purpose, it would be open to judicial review
And would potentially open a Pandora’s Box of ministerial Turf War shenanigans.
Thank you for clarifying that, David.
On the issue of criminal record/ criminal conviction, to create a criminal record it either has to have a maximum sentence of custody, which I understand it doesn’t or be listed on the schedule to the National Police records ( recordable offences) regulations 2000 which is in the main drink, public order, firearms but not this. So it will be a criminal conviction but no criminal record, like speeding
I think the word “need” at the start of the excuses list would in practice be interpreted quite liberally, because (a) it is never “necessary” to attend a funeral service (to give one example) and (b) it makes the words “where reasonably necessary” in (l) contradictory or otiose.
Not totally convinced of the tautology. Toilet paper is a basic necessity. But I don’t need to go and buy some if I’ve already panic bought 60 rolls.
People keep saying “since WWII” or “in peacetime” but (if we leave conscription to one side), has anything as extreme as this ever been imposed? That people cannot leave their own homes or open their own business premises?
Yes, the WWII Defence Regulations were onerous.
Thank you for laying out the legal aspects in terms I can understand :)
If the Regulations under the 1984 Act are intended to be reviewed every 21 days, what happens when Parliament is NOT sitting (as appears to be the case now)?
All very helpful, thank you, but I too think you’re wrong about getting a criminal record.
As far as I can see, these are not “recordable offences” and so cannot result in a criminal record unless they are sentenced in the same proceedings as other recordable offences:
Regulation 9(4) of these regulations states:
“An offence under this regulation is punishable on summary conviction by a fine.”
So the maximum sentence is a fine – no custody allowed then.
Meanwhile, The National Police Records (Recordable Offences) Regulations 2000 (“the 2000 regulations”), regulation 3(1) states:
“There may be recorded in national police records—
(a)convictions for; and
(b)cautions, reprimands and warnings given in respect of,
any offence punishable with imprisonment and any offence specified in the Schedule to these Regulations.”
Whilst regulation 3(3) allows (as mentioned to above):
“Where the conviction of any person is recordable in accordance with this regulation, there may also be recorded in national police records his conviction for any other offence of which he is convicted in the same proceedings.”
As far as I can see the present regulations did not amend the Schedule to the 2000 regulations, and these are not offences punishable with imprisonment so, like minor driving offences, these are NOT recordable offences. You cannot get a criminal record for going out without reasonable excuse, unless you do something silly whilst you’re out like commit a burglary, become drunk and disorderly in a public place, get in a fight, or assault the constable that tries to issue you with the fixed penalty notice for being out (all recordable offences)!
Thank you for the blog, which as always is informative and thought-provoking.
I’d like to share the thoughts it provoked.
The Regulations are those of a Police State. That does not mean they are unjustified. However a Police State is a Police State, even if justified. And in a Police State the rule is clear: you submit to the person in uniform. Failure to do so means a fine if you are lucky, a beating if you are not. The courts cannot help you. In order to avoid punishment you need to be in a position of power, or submit to those who are.
Thank you for your commentary. The TV news on Friday showed a police officer telling someone that if he did not return to his home he would be arrested. Do the new Regulations carry any power of arrest? On a quick look I cannot find anything about arrest in the 1984 Act.
As you point out, the non-exhaustive list of reasonable excuses are all subject to a test of necessity. Do you think therefore it’s possible that someone who lives in a house with a large garden and plenty of outside space and then leaves his property to take a run could find himself on the wrong side of regulation 6 on the grounds that he could exercise perfectly adequately on his own land?
The requirement for a reasonable excuse to have a “need” seems to be contradicted somewhat by some of the examples given. For example, nobody needs to give blood. Obviously, we want people to, but it’s not a necessity from the giver’s perspective. And attending a funeral, while clearly desirable, can’t really be considered essential. Equally, given that there isn’t going to be anyone else there, it’s hard to see how there can be a genuine need for a minister of religion to attend their place of worship. Again, there will undoubtedly be many cases where it’s desirable, but it isn’t essential.
There’s also a glaring contradiction in clause 8 of Regulation 5. A person who is responsible for a crematorium or burial ground is required to close a crematorium to members of the public, except for funerals and burials. But there’s no requirement to close a burial ground. In which case, why mention them at all? I suspect that this is a simple drafting error, and the clause should have directed that burial grounds should also be closed. But this kind of sloppiness doesn’t exactly inspire confidence in the rest of it.
Could anyone advise me what might be proof enough for a “reasonable excuse” to be walking in the countryside if that is your therapy to escape depression and suicidal thoughts?
My 34 year old son, with ASD and mental health difficulties, needs to walk in the country, not just round streets when he is really depressed to relax and calm down. His GP said he must too. Last Wed we drove 5 miles, walked on the Quantocks and he relaxed, life became worth living again. However we saw a drone and later heard about Avon and Somerset Police out in the countryside telling people to go home. So now he is terrified to go out but sinking lower mentally.
Would it be sufficient for him to carry a letter from his GP saying that this walk in the countryside is necessary for his mental health and to escape risk of harm to himself?
Although I cannot give legal advice on a blog, I would suggest he carries such a letter that spells this out.
It is worth pointing out that the period of 28 days for parliamentary approval does *not* include periods (such as the present one) when both Houses are adjourned for more than four days.
Hi David,
Thank you for your informative blogs. I do enjoy reading them. This message is long overdue. I hope you are keeping well in these strange circumstances.
Best regards
Sandy
As an older person who has suffered asthma in the past I am less preoccupied with penalties than the health risks of being interrogated by the police about my shopping or daily exercise.
The implication of some police tweets is that they are routinely quizzing people about the details of their shopping or exercise. If this is true, there would seem to be a real risk of them becoming super spreaders of the virus. While many PCs might be young, reasonably fit and able to cope with an infection – some of those they challenge may be at much greater risk.
An example of the sort of challenge that worries me was tweeted by Exeter Neighbourhood Police Team. “A elderly gentleman despite living in a residential area near local shops, deciding to travel to Sainsburys in the city centre, because ‘he always comes to Sainsburys'”
I suppose the police are exempt from any rules concerning social distancing?
Despite the concern expressed above, in fact, it seems that the police have been very reluctant to exercise their powers, the question is, is this a good thing?
Third national lockdown, January 2021, the staff at the local take-aways are either mask free or have their masks hanging off their chins.
100,000 deaths, mental health crisis, children going without an education, 5% unemployed, minimal enforcement, what’s gone wrong?
What about people who have had coronavirus? The medical evidence is that they are immune and that, after a few days, they no longer shed the virus from their respiratory tract. As such they pose no threat to the health of other people. So, as the basis of the regulations is public health, they would appear to have “reasonable excuse” to go about their business as normal.
I wondered this as well. After just watching Matt Hancock on his daily update I am increasingly worried for our liberty. Despite him having recovered from Coronavirus he stated people such as himself were still subject to the restrictions. If that is the case no-one will ever be (relatively) free again! We have to trust there is some immunity, the alternative is we will have to live with the virus, in which case all restrictions are futile.
It would follow that the large number of public-spirited individuals and groups who are running errands, eg shopping for food and collecting prescriptions, for others staying at home, are breaking the law if those others are not “vulnerable” (as defined).
Thus I can lawfully go out and shop for basic necessities for a perfectly fit 70 year old, but not for a 69 year old who is self isolating but does not have one of the listed conditions. Ludicrous.
I observe that a constable or PCSO can order you to go home if they consider that you’re outside in breach of regulation 6 (and that it’s necessary and proportionate). No requirement for reasonable suspicion or similar is mentioned, just that they must “consider” it to be the case.
Failing to comply with such an instruction seems to be an offence, regardless of whether you were actually in breach of regulation 6.
Does this mean that in effect, a constable or PCSO can arbitrarily order anyone to go home, with the force of law, even if that person is doing nothing wrong under the regulations?
You say in your always very interesting blog:
‘… the Regulations as a whole (and ministerial directions made under them) are subject to potential challenge at the High Court.’
Surely that eliminates the chance for ‘the small man’ to challenge them. From my limited knowledge, using anything except the English county courts involves large legal costs, especially if you lose because the winning party will then ask you to pay their legal fees.
Can help be had in defining ‘basic necessities’ from the list of businesses that have been allowed to continue trading, against those that have been closed. In interpreting the legislation surely the businesses that can continue trading are providing basic necessities. This might help the Police and other authorities when enforcing the legislation and at least provide some clarity to everyone.
I don’t think this is a drafting error, though one would be forgivable in the circumstances. The Regulations don’t in general require outdoor spaces to close – only playgrounds, sports courts and outdoor gyms, and outdoor markets other than food stalls. It seems common sense to distinguish between indoor and outdoor spaces and only to close outdoor spaces with a high risk of infection.
Why then mention burial grounds at all? The reason, I suspect, is that under the Cremation Regulations a cremation authority can be either a burial authority OR a person who has opened a crematorium. This phrasing makes clear that the requirement to close crematoria applies both to the former and the latter.
With the Easter break when does the legislation need to pass through parliament?
15th May 2020
https://publications.parliament.uk/pa/cm5801/cmselect/cmproced/300/300.pdf