27th April 2020
Consider this post as something fun and instructive: an amusing example of how not to legislate, and of why rushed legislation without scrutiny is a bad thing.
The substantial amendment to Regulation 6, which restricts freedom of movement, was such that the scope of the offence significantly widened.
The purpose of the amendment was to deal with the problem caused by the original version, where the offence was committed at the point a person left the place they were living, unless they had a “reasonable excuse”.
This had the ease of legal certainty – but it meant that if a person left a house with a “reasonable excuse” but then ceased to have such an excuse, there would be no offence directly committed.
(Such a person could be directed home and commit an offence if in breach of such a direction, but that would be indirect not direct.)
In practice, this created an evidential problem: to bring a prosecution – or to even levy a fixed penalty – there would be a requirement that it could be shown that there was no “reasonable excuse” for that person at the point of departure from where they are living.
And so to cure this problem, the lawyers at the Home Office (who are responsible for the police powers aspects of the Regulations, even though the Health Secretary is nominally the Secretary of State) had the clever idea of amending Regulation 6 with the insertion of “or be outside of” in to the offence.
The relevant offence now reads:
“During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse.”
This meant the legal and evidential difficulties of showing or otherwise being satisfied that the offence had been committed would be lessened.
Any lawyer can amend a single clause in a legal instrument – the experience and expertise is in being able to make the consequential changes to the rest of that instrument (and other instruments) that may be also required by that change.
This is an analogous to computer programmer knowing that a change to the code in one place necessitates changing code elsewhere.
And so, in the Regulations, the listed examples of “Reasonable Excuse” were predicated on them applying at the point of departure.
For example, the “Reasonable Excuse” at Regulation 6(2)(f) begins:
“to travel for the purposes of work or to provide voluntary or charitable services…”
The effect of the amendment is that is that while it is expressly a “Reasonable Excuse” to travel for the purposes of work, it is not expressly a “Reasonable Excuse” to actually be at work.
If the listed “Reasonable Excuses” were an exhaustive list then, taken literally and strictly, no offence would be committed while travelling for the purpose of work but it would be on arrival.
Of course, this is manifestly absurd.
And a sensible court could address this in one of two ways.
First, a court could imply into Regulation 6(2)(f) that actually being at work would be part of the the already existing “Reasonable Excuse” regarding work.
Or, second, a court would imply that the list of “Reasonable Excuses” was non-exhaustive (and this is a safe implication, because of the word “includes” at the head of the clause) and would establish this as a new and separate “Reasonable Excuse”.
But in either case, the Court (or the officer deciding whether to impose a penalty) is having to fill the consequential gap created by the amendment.
And in both cases, the gap is being filled by necessary implication, because the express provision is now unclear.
You would think that the purpose of a “clarification” would be to clarify – to make explicit something which was otherwise implicit.
But in this case the Home Office, by seeking to “clarify” (ie, correct and change) one thing has caused a lack of clarification elsewhere.
In practice, this should not make any difference, and the implications will (one hopes) be made as necessary.
(As this post says above: treat this post as a fun instruction.)
This is an example of what happens where legislation, such as the Regulations are rushed out and then amended covertly.
This legislation should be scrutinised and approved by parliament, not slipped out into force without such scrutiny and approval.
And then we would not need “clarifications” of unclear legislation that in turn need further clarification in turn.
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