The extraordinary legal situation of the Coronavirus lock-down

30th March 2020

There is a public health emergency in England as there is in the rest of the world, and so it is essential that emergency public health laws be in place.

Nothing should gainsay that simple proposition, and nothing in this post should be taken as opposing the imposition of public health law in the current emergency.

That is why emergency public health laws exist.

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Yet, we should take a moment to reflect the extraordinary legal situation that we are now in.

Three fundamental freedoms – freedom of movement, freedom of association and freedom of worship – have all been abolished for six months by a statutory instrument which has been neither scrutinised nor voted on by members of parliament.

The freedom to conduct business or be self-employed also has been either severely curtailed or effectively removed by the same means.

Under Regulation 6(1), it is even now a criminal offence to leave your own home, unless (in effect) the police are satisfied you have a reasonable excuse.

The whole country is thereby (in effect) under house arrest.

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The police, in turn, have been given wide powers to enforce these regulations, including the use of coercive force.

And in turn, again, the police are interpreting these wide powers even more widely, with roadblocks, drones, and a made-up restriction on “essential travel”.

The police are also encouraging people to snitch on each other.

On social media there are accusation and counter-accusation, as neighbours turn on each other.

People are afraid of the police, and increasingly of each other.

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Those with mental health problems, and those in abusive households, are being made to feel that the law means that they have to stay inside.

This is actually not the case at law.

The Regulations provides scope for leaving the house for such important reasons.

One can hardly dare imagine what is now happening behind closed doors, with vulnerable people believing (wrongly) that the law prevents them escaping.

And one must dread the real consequences of this.

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And all this is on top of the fact that all electronic means of us communicating each other are – in principle – subject to interception and surveillance laws.

This means that everything being communicated between citizens – is in principle – open to the government to monitor.

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If it were not for this public health emergency, this situation would be the legal dream of the worst modern tyrant.

Everybody under control, every social movement or association prohibited, every electronic communication subject to surveillance.

This would be an unthinkable legal situation for any free society.

Of course, the public health emergency takes absolute priority.

But we also should not be blind to the costs.

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46 thoughts on “The extraordinary legal situation of the Coronavirus lock-down”

  1. As a footnote, it is quite right for the police to be stopping people visit family members for birthdays. Bear in mind there are over a million birthdays a week.
    But the point that this is a health emergency, not a public order emergency, is quite right.

  2. Thanks as ever. One thing I don’t understand is why Parliament has to be suspended. There are plenty of people engaged in remote working who work in national security, or other occupations where the security and confidentiality of what they do is of paramount importance. Is it really the case that there is no workable alternative to Parliament being suspended? What is it about Parliament that means it cannot function except on the green benches of the Palace of Westminster?

    (I understand that there may not be the systems in place – but that is not my question – it is rather whether may be another example of inadequate resilience planning or perhaps even something more sinister.)

    Frankly, as DAG points out, where we are now is the sort of thing that the likes of Priti Patel would never – in their wildest authoritarian fantasies – have imagined they could be in.

  3. All horrendously scary…but the independence of the Judiciary has not been suspended, has it? What precautions will the country’s senior judges be able and willing to take?

  4. Ni hao. Welcome to the People’s Republic of Britain. Question will thoes measures be as effective as they would be in the right, experienced hands of the CPC? A temporary bad constitution does not make a dictatorship, the staff has to be suitable too.

  5. For independent businesses to be able to function on an international scale, remotely, yet a country’s government can’t, or won’t, is an abysmal dereliction of preparation and duty.

  6. These are the powers one might expect under the auspices of a Government of National Unity. It looks like the Tory Party and Messrs Cummings/Johnson and also 55 Tufton Street (aka Koch Family) have got what they want, rule by decree.

  7. Agree that extraordinary times call for extraordinary measures.

    Saving lives is the priority.

    My concern – as I think yours might be too (but forgive me if I’ve misunderstood) – is that this heavy handed policing:
    a) will not make containment any easier long term (the threat from this virus is going on for months, not weeks)
    b) might actually endanger lives (particularly of those who already suffer mental health issues or from domestic violence).

    The mental health of everyone will come under severe strain if the police continue to be so heavy handed – a climate of fear is not conducive to sustaining good public policy or a healthy society.

    Trying to micro manage everyone is foolish. Police should focus on the riskiest activities (parties – large crowds – and criminals exploiting the situation) rather than people spending 5-minutes more on their allotted run because they had to stop for a breather.

    At this rate, we will see a rapid increase in public disorder – with the potential for riots in our inner cities (and perhaps even our rural towns) this summer – particularly if it is a hot one.

    Police need to scale back their authoritarian tendencies rapidly if they are to maintain the trust and cooperation of the public.

    1. I am old enough to remember when there was widespread mistrust of the police in the 70’s and 80’s. The principle of consensus policing seemed to have been forgotten. It has taken decades to rebuild it and I feel that there is a real risk of losing it again for the reasons your articulated here. Even in such serious times, police response must be proportionate.

    2. I have to ask: are we rally in extraordinary times – is the Virus, something extraordinary? I think of many things that are currently, “extraordinary” and that is the ‘measures’ devoid of any ordinary thinking…

  8. If party loyalty is reliable, the Tory majority does away with the meaningfulness of parliamentary scrutiny. It seems that these powers were assembled without much thought and provide for draconian solutions without the need to go through any persuasive steps first. One hopes that senior police officers will ensure that use of these powers is proportional (individual coppers will be found that take a different tack, of course). But breaking up a “massive party” of 23 people doesn’t auger well. By the same token, the stupidity of said party’s organisers and the behaviour of societal scum threatening OAPs and the police with violence and deliberate (threatened) contamination with the virus just shows what dregs there are in our society at the moment. It would be appropriate to come down hard on the latter whilst firmly, but politely calling on the former to desist.
    Alas, I fear the leadership of the nation has never been in less safe hands than it is now.

  9. Again, with due reference to the seriousness of the health crisis, what disturbs/concerns/annoys me, is those people who through alleged necessity are micro-managing our lives, with punishment for minor misdemeanours, and yet are free to deceive, avoid scrutiny (Russian Report anyone?) receive special treatment, waste public money, etc. etc. with apparent impunity.

    Thast the Executive wanted the Emergency Regulations to run for two years in the first instance, is a good indication of the non virus-related dangers we potentially face.

    “Has it not always been thus”, is no reason in a democracy (still) to not challenge this mindset.

  10. Did not the “Defence of the Realm” acts do much the same through both world wars ? I’m not underestimating the risks such legislation brings with it, but I am comforted to some extent by the long history of dissent in this country. It is often said that the police force operate by consent, that is, they have the general support of the vast majority in what they do. I don’t think they want to damage that relationship.
    Even the government recognised that the initially proposed two year period for these power was way too long. So yes, we must be vigilant, but let’s not be shouting “fire” just yet. We have a crisis of some proportions to handle in the meantime.

  11. It behoves each of us to be constantly vigilant and follow parliamentary procedure as closely as possible. Thanks David for doing that already.

  12. Is there really a public health emergency? As I understand it we are all going to get the virus and almost all will survive in good health if we get the medical care we need. So in effect the only thing killing people is lack of intensive care facilities. These could have been ramped up at speed with a little organisation and lots of money which will now have to be spent anyway. Was the closure of a whole society and economy ever justified given the unknown consequences of that policy? I don’t think so.

    1. Indeed, but TV and Press bulletins showing people dying in hospital car parks and corridors would be catastrophic for the Tory Party. This is about managing demand for very finite specialist healthcare.

    2. We will not know the answers to any of those things until we have a hindsight perspective. All we can currently use is the experience of other countries whom we suppose are further through the virus cycle than ourselves. That evidence suggests we do indeed have a serious public health issue here. I’m married to a retired Enviromental Health Officer who has some insight into the history of pandemics through her studies. There are lessons we can learn from the actions of the brave people of Eyam village in 1665. They knew what they had to do.

      1. Their experience really is not comparable, is it. Coronavirus does not kill most people. It is not the Plague.

      2. Anyone who compares reactions to the Plague, which killed up to 60% of the population of Europe, to reactions to coronavirus, which kills about 0.3% of the relatively few people who even catch it at all, has no business commenting on this subject.

        1. Chris Martin. What nonsense. Rachel was questioning whether this is a public heath emergency. I used the plague analogy only to illustrate that if ordinary people in 1665 could recognise one and act, then it is not beyond the intelligence of modern humans to recognise an exponential growth curve, or to accept that when health experts say our best defence is to isolate, they mean it. You disappoint on both scores it would appear.

    3. I agree, Rachel. Indeed listen to Lord Sumption on R4’s World at One about 10 minutes ago. We each need to talk to everyone we meet to point out the dangers of house arrest, hysteria and undebated legislation. I just did so with the woman on the supermarket checkout. I hope I sowed a seed of questioning.

      PS Bring back John Wyndham!

      1. I hope you were the prerequisite distance at the time?

        I doubt there are many, if any subscribers to this blog who are not mindful of “the dangers of house arrest, hysteria and undebated legislation”.

        However this IS a public health emergency, for which undoubtably, emergency measures are required.

        Two people I know have died in quick succession, neither of whom I would have anticipated. Right this minute, undebated legislation seems very unimportant.

        1. I’m very sorry that you have just lost two people. However, unfortunately, you illustrate the danger of allowing present and personal grief or difficulty to cloud the vital importance of trying to ensure the whole of society remains intact. Grief should not mean that legislation goes unchecked.

          1. Alison

            I’m not in “grief”. These people were known to me, but not friends or relations, so I’m afraid your conclusion isn’t correct.

            The legislation wasn’t completely unchecked, which is why it was reduced from an intitial 2yr application to six months.

    4. “Is there really a public health emergency? As I understand it we are all going to get the virus and almost all will survive in good health if we get the medical care we need”

      No, Rachel, I’m afraid there really IS a very serious public health emergency!
      • One in every six people over 80 who has been confirmed with the virus in Italy is already dead, more will follow. The figures are not as bad for those in the ranges 50–70 but still make for uncomfortable reading. There is no possible way to isolate all these people from the rest of the population for the next year or so until a vaccine may be found, even if immunity turn out to be durable (there’s no evidence it will be — around 30% of cases of the incurable and unpreventable common cold are caused by a coronavirus).
      • There is evidence suggesting that COVID-19 causes long-term damage to the lungs.
      • “if we get the medical care we need”
      Almost all cases of COVID-19 admitted to intensive care in Italy (around 10% of all cases) have required mechanical ventilation (ordinary oxygen therapy is now delivered outside ICUs): for all these people, not getting the medical care they need means they —10%, not 1%— will simply die!

      The number of infections is still growing at an exponential rate: this means it *multiplies* every day. There is no way any real-world resource can be “ramped up at speed” to correspond to such growth —it’s a simple mathematical reality— so the only hope of avoiding deaths on a *massive* scale if maximum NHS capacity is substantially breached, is to curb the growth in the number of cases.
      Perhaps you can quickly train double the current number of ICU nurses, perhaps you can spread them twice as far … but all this heroic effort will cover than than a week’s new infections! Can you now *re-double* the already doubled number of nurses? No. And the next week??? Unless you slow it down the virus can easily outgrow *anything* else you can do!

        1. Hi Alison,
          I’m not a medic so I certainly wouldn’t like to give “chapter and verse,” especially as it’s most likely too early to have a detailed understanding.

          However, there have been several credible reports from Italy and Hong Kong of “recovered” COVID-19 patients with substantially diminished lung function in ways for which there are few grounds to expect recovery and concerns over longer-term deterioration.

          Perhaps more seriously, autopsies in China have revealed serious ‘pulmonary fibrosis’ ―a sort of scarring of the lungs― which, had those patients survived, would have been an incurable condition.

          1. Thanks Charlie. However, that is not proven data. We should be as cautious about medical reports as we certainly must be about legislation. This is not to say that the reports you’ve read are incorrect but there again they may not be.

          2. Alison

            That depends on what you mean by “proven data”?

            Two separate reports, one by the Tongji Medical College at Huazhong University of Science and Technology & the other published in the April edition of the Lancet, were both based on actual cases & research and as the Lancet put it ““indicated the appearance of interstitial changes, suggesting the development of fibrosis”.

            Both are to be qualified in that the samples investigated were too small in numbers to extrapolate across the board and obviously it’s too early to say for sure.

            However, we’ve already seen the damage ignoring evidence can do.

            I’m sure both studies and any further studies will be subject to approprioate peer reviews, etc.

      1. Charles Aero. Thank you for explaining it so well. I was beginning to think I was the only one that “gets it”. Now I “learn” that homeopathy is the answer apparently. I think I shall go and kiss the relic of a long dead saint. Do you think that might work too…….saints preserve us all…..or something!

      2. The rate of new infections (or those admitted to hospital and therefore tested, at any rate) is not accelerating, as confirmed by the chief scientific officer in the press conference last night. This to me suggests that infections are not now multiplying exponentially but linearly.

        1. You might be right that’s it’s gone linear but 1) One or two days figures are a pretty thin data set to hang that conclusion on. It’s a bit premature therefore in the grand scheme of things. 2) If…..and it’s a big if, it has gone linear then the prima facie thing we might learn from that is that mass isolation is working, but for the same reasons it’s far too early to have any certainty about that.
          The only mathematical certainty we do have is that isolation offers the best chance of reducing or reversing the speed of virus spread, and thus giving the health services the best chance of providing treatment to the maximum number. It is a numbers “game” and numbers don’t lie or have opinions. Until reliable numbers come in we are all just guessing, but nobody I know has a better strategy than isolation to offer, so let’s just get on with it and hopefully we all survive to argue the toss when the crisis is long past. I know my village community (2500 souls) is taking isolation VERY seriously. They know the score.

          1. You’re right on your first points of course – I suppose I’m just hanging on to any hope that this might end quicker than expected, as I am stuck at home with a toddler, no garden and absolutely hating it!

    5. I’m with you Rachel on the actual severity of the virus. Also, one point no-one appears to have even considered in the public domain, is that the world of homeopathic medicine already have a reasonably effective prophylactic or vaccine for covid-19! It would be interesting to consider how much the unfounded prejudiced approach to homeopathic medicine has cost the country on this occasion alone.

    6. With respect Rachel, how many people have to die for you to call it a public health emergency?

      Thus far, almost 50% of those in Intensive Care for whom an outcome is known, have died. So even with a greater number of ITU beds we’re still looking at thousands of deaths without stringent protection of the most vulnerable.

      Protection, largely from the rest of us, and from an overwhelmed NHS.

      I would agree, however, that a significant contributing factor in making this an “Emergency” has been an apparent lack of contingency planning for a foreseeable event, by an NHS pretty much forced by Government action, or lack thereof, to operate on a crisis management basis every day (pun intended).

  13. David, can you expand on the point:

    “The police are interpreting these wide powers even more widely, with roadblocks, drones, and a made-up restriction on “essential travel”.

    Where I live everybody is strictly adhering to advice on social distancing, but already roadblocks have been put in place at car parks that provide access to wide-open spaces.

    So what is the pretext for these closures?

  14. This from a Government which has already awarded itself astounding extraordinary powers to rule through secondary legislation and usurp the role of Parliament, and which has also been found by the highest court in the land to have suspended Parliament —and thus all possible accountability and scrutiny of its actions— illegally. A Government which already refuses to respond to questions and treats an ineffectual press with contempt, preferring to evade accountability and responsibility in any form completely by releasing information via unattributable anonymous briefing to tame compliant “journalists” who, placed in the most senior roles, enable this evasion.

    If it’s impossible for Parliament to continue to operate, are we also saying that the Police, the Armed Forces and the Emergency Services are out of action along with the governance of all major organisations, or is it merely that, while others manage, our parliamentary democracy is now regarded as an optional ornament which be suspended without consequence in times of emergency?

    Notably, the Parliament of the “undemocratic” EU has found ways to continue to operate and is currently scrambling to re-enable the operation of its critical structures such as committees through remote working, even though one of the IT contractors who worked on-site has already died of COVID-19.
    https://www.neweurope.eu/article/european-parliament-overwhelmingly-approves-coronavirus-funding-plan/

    The President of the Parliament (himself in self-isolation) stated: “Parliament will continue to work to exercise its duties. No virus can block democracy.”
    (While it’s worth noting that most of the legislation which is managed at this level is of a rather different nature than that controlled by national parliaments —an inconvenient fact habitually elided by advocates of Brexit— it is also the case that it is generally simply not possible to bypass this parliament.)

    So, how well does British democracy stand up to comparison when the chips are down?

    As for the Police and their use of coercive force: writing as (I was told) one of the first people to be arrested under the Public Order Act of 1986 (released without charge; reason given at time of arrest: none; reply to my request to be informed of the reason for arrest: “You know!”), I struggle to think of any extraordinary power of this sort which has not been abused, misinterpreted (and the Police already dedicating their resources to editing and publishing drone footage to censure solitary walkers really doesn’t offer grounds for optimism), or applied to situations well beyond those envisaged by Parliament.

    The latter problem will most likely be vastly exacerbated by slack drafting and lazy and vague definitions of offences which is too often the hallmark of the UK’s polity where the technical details and final form of legislation is far too subject to the direct interference and the whims/political priorities/obsessions of ministers and their SpAds. (This is not a merely party-political point: while the quality of many legal provisions —especially from the Home Office itself!— has visibly deteriorated, it is certainly possible to find glaring examples from the Blair years.)
    And now our freedoms are highly dependent on the legal acuity and liberal instincts of Priti Patel!

    The Police, of course, provide an essential service to the community and must do so often under difficult conditions. But rigorous legal constraints and effective and transparent oversight are essential if we are to avoid a return to a situation where any dissent or resistance to following the arbitrary instructions of the Police would be met with (at best) the threat of arrest for some generic offence such as ‘Obstruction’ (“Obstruction of what?” ― “My boot!”).

  15. The late lamented Terry Pratchett observed that the police would really like all of us to stay at home with our hands on the table where they can see them. This crisis has given some police persons the chance to realise this dream.

  16. I find it very odd that the law for England does not restrict exercise to one session per day, whereas the law for Wales does!

    On the other hand, Welsh regulations do not include a clause seen in the English version which means the fixed penalty notices for the third and subsequent incidents doubles each time, to a maximum of £960!

  17. The legislation allows people to continue to go to work – it was not intended to shut down the economy completely. Yet we have a kind of mass hysteria where people are apparently terrified to go to work, even where employers have taken steps to provide for social distancing; and there are social media campaigns to close down businesses seen as non-essential.

    These campaigns are being encouraged by MPs and trades unions. The action of the police to prevent people leaving their homes for ‘non-essential’ purchases or ‘non-essential’ travel increases the scope of what is considered to be essential. This increases the hysteria and calls for further action against anyone to be seen to be breaking the rules.

    The government has been actively engaged with online retailers, encouraging them to stay open so that people can continue to shop for the stuff they want or need, to support moral and keep the economy going. But a number are now closing.

    We need to think carefully about the intention of the lockdown to prevent all optional and unnecessary social contact – not to close down the economy completely.

    1. Indeed. Apparently in France the police are timing people who come out of their dwellings, allowing them one hour out, up to 1Km, and imposing fines if they deem necessary!

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