6th April 2020
These are strange times, and one indication of the strangeness of these times is that a liberal and independent blog like this is posting something about how to make illiberal laws more workable.
These laws, made without any parliamentary approval or debate, restrict fundamental freedoms and create wide-ranging criminal offences.
There are grounds for serious concern about the legality and constitutional validity of such legislation being made and used in this way – but, as it stands, these Regulations are the laws of the land and they should be complied with.
Putting general concerns aside, and given one should try and improve things when one can, below are some practical suggestions for improving the laws.
And this is the right moment to be making improvement suggestions, as under regulation 3(2), the government will be reviewing the regulations on 16th April 2020.
This would mean that a simple or bare breach of regulation 6(1) would not itself be a criminal offence.
There should be a seriousness requirement.
Breaching the prohibition in circumstances where one causes unreasonable risk to others (that is by breaching social distancing guidance) should be the relevant offence.
(And a breach of a reasonable direction by a police officer to return to where one lives would remain a criminal offence.)
These changes would reflect best police practice and so should not be operationally disruptive.
And the changes would reflect also that the statutory purpose of the regulations is not public order or social control, but the protection of public health.
As well as a seriousness requirement, the Regulations should be amended so that the fixed penalty scheme under regulation 10 (which does not mean a criminal record or conviction) is not merely an option (“may’) but is instead the presumption, unless there is a compelling reason for a criminal prosecution.
And the decision to prosecute should, as these are emergency regulations, be made by the Director of Public Prosecutions, as this would ensure proper consideration of the public interest.
Criminal liability – convictions and records – can destroy peoples lives, and these further changes will ensure that criminal liability is not imposed (or threatened) lightly and casually during this emergency.
And again, the statutory purpose of the Regulations is public health, and so there should not be any criminalisation more than that is strictly necessary.
Further highly useful changes should also be made to the “to avoid injury or illness or to escape a risk of harm” exception under regulation 6(2)(m).
It is implicit that this exception includes mental illness (and not just physical illness) and that “escape a risk of harm” would include harm from domestic violence.
But these crucial protections should be made explicit, so that vulnerable people can see that the letter of the law protects them and gives them the comfort and security that they can leave the house when required – as long as they comply with social distancing guidance.
If there has to be emergency law (and this is an emergency) then it is important that it is as good as it can be.
Please make any further constructive suggestions below, as I understand they may be seen by those who are reviewing the law.
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