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.
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.)
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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