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.
Last week, as this blog set out, the government silently amended the coronavirus regulations under the pretence of “clarifying them”.
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.
But.
Oh dear.
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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Comments are welcome but pre-moderated, and so comments will not be published if irksome.
I think I’m going to bookmark this post and share it with future philosophy/logic students — this is exactly the sort of close reading we’re trying to train them to do, and it’s good to have real-life examples to show them the importance of what we’re teaching them!
If ‘social media’ didn’t exist would we know or understand what is going on? One has to be on Twitter and/or signed up to too many blogs to handle to pick up the finer points that you pick up and disseminate. Can we be grateful that we don’t rely on letters to newspapers?
Drs were so confused when the act became law, they wanted to see bodies in the mortuary by face time. A clarification from the chief coroner made it quite clear that if they needed to see a person after death, it would be in person, but in most cases they don’t need to see the deceased.
This we could deal with, but the fact remains that many deaths will have been certified with very minimal medical evidence.
Interesting post, and these sorts of things could (would probably) fall foul of the HRA/ECHR ‘quality of law’ assessments, especially with criminal sanctions attached. Also, I think I’m right in saying there’s no ‘intent of Parliament’ for the Courts to look to when considering the meaning of these provisions…
Maybe we could, you know, elect a group of people, and they could discuss legislation and amend it before it becomes law…
Well, to be honest I’m not quite so amused as you are by all this. Think of all the time wasted in Whitehall fiddling around with the legislation and all the time the rest of us have to spend keeping track of these nonsenses, working out what matters and what we can ignore.
With respect, as they say!
Thanks for this latest example of this administration’s innate habit of acquiring powers without parliamentary oversight only to be undone by its own ineptitude and slyness. I am sure I speak for thousands of fellow readers who miss your incisive pieces in the FT. Could you perhaps comment on why we should or should not be (re)admitted to the Lugano Convention?
Oh dear…
Another topic where it would be very interesting to have your thoughts would be the consequences of not being a party to the Lugano Convention which I understand to be focused on the issue of jurisdiction but perhaps also enforcement of judgements (or is this another convention?).
Or, to borrow a metaphor from one of your much earlier pieces, the Home Office tweaked the ritual and the binding spell went skew-wiff
Jack Of Kent would have approved. John Constantine, lees so.
There is a risk of reading this too closely. The core proposition is that one must not leave or be outside of the place where they are living without a reasonable excuse. What constitutes a reasonable excuse is an objective test.
By any measure it is objectively reasonable to be outside of the place where you live because you are at work and it is not reasonably practicable for you to work at home. There is no need for necessary implication, the objective test set out in the core proposition is met.
Having said that, including a non-exhaustive list of reasonable excuses within the text of the legislation is problematic.
What is the list for? Is it to colour the interpretation of the core proposition (ejusdem generis and all that)? That only serves to cloud the core proposition.
If the intention is that “reasonable excuse” comes with certain additional bells and whistles (e.g. the thing done must be essential in some sense or therefore is a limit to the distance or time a person may travel from home) then the core proposition ought to have such additional conditions attached. Examples are an obtuse way of adding detail.
Alternatively the list may be intended to make clear that things which objectively are not reasonable excuses are nevertheless to be treated as such. That gets into “”dog” includes “cat”” territory and would usually indicate that the core proposition is not quite right in the first place.
In this case I think the list is more of the former and is so long and, in some instances, detailed that it is more trouble than it is worth. The fact that there is also extensive guidance for the police about what is and isn’t reasonable (guidance which will probably be more determinative for officers making decisions on the ground) makes me think that the non-exhaustive list should never been included in the regulations in the first place.
Thank you for typing all this.
Unfortunately, errors like this occur in normal times in normal SIs too. David, can I draw to your attention the Community Infrastructure Regs 2010/948, which were subject to affirmative resolution procedure? They were consulted on in advance. At the time I was chair of the Law Society’s Planning and Environmental Law Committee. We drew attention during consultation to the fact that the regs would catch pre-Regulation planning permissions which was not the intention. Nothing was done about this till I raised it again on the telephone in early 2010 resulting in the late addition of Reg 128, dealing with transitional provisions.
The original regs had many errors which needed to be corrected by amending regulations, not least the introduction of a new Reg 69A to deal with the position of an innocent landowner, opposed to the development and who had not agreed to sell their land to the developer. As originally drawn, such a landowner would have become liable for CIL if the developer failed to pay the CIL.
The errors continue and in an overhaul of the Regs last year. Reg 1(4) of the No. 2 2019 Regs stated that that the amendments in, inter alia, Reg 12(4) to (7) apply on or after the Commencement Date. However there is no Reg 12(4) – (7). I raised the issue with the DCLG drafting team who confirmed it was an error but did not sympathise with a request to clarify officially, as they could not see why the error would waste lawyers time.
Even if the ‘reasonable excuse’ of travelling for the purposes of work might be interpreted by extension as covering the work itself, it doesn’t, without another extension, cover the journey home from work.
One leaves the place where one is living with reasonable excuse, and remains outside the same place with reasonable excuse on arrival at work and while working, presumably. But what if one is stopped by the police on the journey home? The reasonable excuses for leaving home to go to work and not being at home while working have expired, and now one is travelling for a new purpose, the purpose of going home, which is not explicitly covered.
There is the same problem now with the ‘expiry’ of the other reasonable excuses, which were never a problem when the test was judged merely on the purpose for leaving home in the first place.
The Health Protection (Coronavirus, Restrictions) (England) Regulations (Amendments) 2020:Written statement – HCWS206, to House of Commons by Matt Hancock.
https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-04-28/HCWS206/
I entirely agree with your analysis of the problem, the tendency of government to legislate by amendment, but not on solution. Parliamentary Counsel are expert crafters. Do you really think MPs would have done better? Or should we have had a twelve week consultation period?
At the root of the problem is not legislating in haste, but that this was necessary due to the nature of a public emergency.