1st April 2020
The Coronavirus Regulations are extraordinary in at least four ways.
First, the Regulations remove from everyone in England the fundamental rights of freedom of movement, freedom of assembly and freedom of worship, as well as severely limiting their right to conduct any business.
Second, the Regulations create under Regulation 6 a criminal offence for anyone to leave where they live without a “reasonable excuse”, and exposes anyone who breaches this prohibition to criminal liability – a criminal conviction and criminal record – as well as to the use by the police of coercive force.
The “reasonable excuses” are, in turn, so vague and ill-drafted that it is impossible for any person (or any police officer) to be certain as to whether the offence is being committed or not.
And fourth, and most remarkably, the Regulations have not yet been approved by any parliamentary vote, and nor did they have any parliamentary scrutiny.
In essence, the most illiberal laws since at least the second world war were imposed without any formal democratic sanction.
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The Regulations are in place under the Public Health Act and are for the express 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 Public Health Act 1984).
As such they are emergency laws and, as there is an emergency, it is appropriate that emergency laws should be used – and nothing should gainsay that.
Yet what the laws actually say is one thing, and what police (and police social media accounts) and ministers are saying the laws say can sometimes another.
Police and ministers, of course, can and should provide guidance to people during this emergency.
The guidance and the law are, however, becoming confused – and this has the unhappy consequence that people are fearing that there will be legal sanctions for what would be lawful activity.
Every sensible person wants public health guidance to be followed.
But the suggestion has been made that it is somehow unhelpful to point out that law does not actually say what ministers and police say it says.
That we should “know what the laws are meant to mean” and give effect to the supposed “purpose”.
That we should see deficiencies in the applicable law and look the other way and not say anything critical.
(This is not caricature or exaggeration – these things have been said.)
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The correct response to such suggestions is to say “no”.
Indeed, at a time of national emergency there is a greater public interest in emergency laws being subjected to anxious scrutiny.
The discussion of the difficulties of the law is not some professional parlour game of interest only for lawyers.
To discuss law in this context is as far away from being “academic” as it can be.
If the emergency laws are deficient, or come to lack credibility, people will die.
If the emergency laws are misapplied and wrongly prosecuted, people will spend the rest of their lives blighted by a criminal conviction and a criminal record.
Lawyers and legal commentators should not thereby shy away from public discussion of emergency laws but, if they can, contribute constructively to that discussion.
And the remarkable fact that these laws have not yet had any formal democratic or parliamentary approval makes such discussions more important, not less.
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Comments are welcome but pre-moderated, and so comments will not be published if irksome.
Do you notice how this issue isn’t triggering a discussion about the UK constitution, despite far more fundamental rights being removed as compared to Brexit?
Isn’t ‘reasonable’ one of the words best avoided? – Like ‘clearly’?
I can see your point, but alas no.
“Reasonable” means something at law – it is usually what an objective person would accept as reasonable in the circumstances.
In other words, would a judge accept it as reasonable?
I couldn’t agree more David. Scrutiny is always essential and never more so when the “normal” checks and balances are not functioning as they should.
As and when the country returns to some sort of normality there will be opportunities for rifts in the country to be healed and a return to consensus politics. Sadly I do not take it for granted that healing and consensus are going to be high on the agendas of our political leaders.
I should just like to say that I fully agree with you. It would be sensible for the government (and ideally Parliament) to revise these laws and ensure that they are clear, fit for purpose and appropriate after a few weeks. Of course, the chances of this happening are as remote as the PM deciding that he has done with dissembling for the rest of his political career!
“For the purposes of paragraph (1), a reasonable excuse includes the need—”
In other words there may be reasonable excuses other than those listed.
Like – to get a notary to notarise a document (I need that at the moment!)
To find two people to witness your will (I just did that)
To meet my girlfriend with whom I am desperately in love and who reciprocates that (I am not doing that)
To take my cat to the vet (could happen)
etc. etc.
The first two could be under the legal obligation exemption?
Part of the problem is that we live in a world of soundbites & tabloid headlines that does not sit well with the more nuanced response needed to tackle the virus.
So the message ‘stay at home’ is the slogan and anyone who challenges that is seen as the ‘enemy’. Yet from the beginning the government never really intended that. When the restrictions were first announced, the number 10 briefing made it clear that there was a difficult balancing act and getting out for daily exercise was positively encouraged to avoid an explosion of mental & physical health issues in a few months time.
Thinking for a few moments about the science. A dog owner taking a dog walk on the moors in isolation poses no risk. A policeman quizzing 40 shoppers at Sainsburys about the essential nature of their shopping potentially exposes 40 people to some risk. Taking one walk a day along busy narrow footpaths involves some risk; taking fives walks alone in the countryside creates no risk.
I am grateful to some of the legal discussions here and elsewhere that seem to have resulted in revised and, hopefully, more sensible and safer policing.
Having just watched Matt Hancock on his daily briefing I am incredulous at his threat to tighten restrictions on people leaving their houses. This does not seem to be in keeping with a necessary response to the public health emergency but is rather a punishment for the whole population as a result of the actions of a few. Surely the actions of the few not adhering to current guidelines are a matter for the police to sort out. Matt Hancock’s attitude almost seemed that of an irritated schoolteacher keeping the whole class in for the actions of one. I presume he is backed by the law in this respect, even if current restrictions on people were (and are) enough in the current emergency. At least this is an enlightening (albeit unpleasant) experience in how many peoples of the world live without freedom.
We’ve been told that despite his hospitalisation BJ is still formally in charge of the government. I find that undesirable: at any time, and certainly now, the person in charge must be physically fit. The decision as to who’s in charge shouldn’t be reserved to the PM. Time to adjust our constitutional conventions?