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.
The illiberal laws are, of course, the Coronavirus Regulations (which this blog has discussed here, here and here).
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.
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The first suggestion is to cast regulation 6(1) as a general prohibition (and not as a direct criminal offence under regulation 9(1)(b)).
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.
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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.
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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.
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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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Comments are welcome but pre-moderated, and so comments will not be published if irksome.
David
Another suggestion for modification of the regulations is to make provision for garden centres to open (subject, of course, to appropriate social distancing controls). Surely they can be considered as important to the nation’s health as off-licences?
Many thanks for your ongoing commentaries which continue to inject notes of sound common sense into the current difficult situation.
Richard
I think, ideally, that what we can and can’t do should be evident on the face of R.6. For example, I am aware that it has been said that the right to leave home to exercise is only available once a day; but R.6 doesn’t say that. Nor does it impose any express prohibition on, e.g. sunbathing although many assume that is banned (R.6 does not list all “reasonable excuses” of course; nor should it seek to, imo). I am loath to argue for further restriction, and as long as social distancing is observed, I actually see absolutely no harm, and perhaps much good, in being able to exercise more than once a day, but above all, people need clarity in the face of unprecedented restrictions on normal life. I do also absolutely endorse your thoughts as to adjustments needed.
I agree in general with the proposals and comments. I would add that the right to go shopping should explicitly permit going to all those shops and businesses that are permitted to remain open per Schedule 2 part 3. I would add outdoor children’s playgrounds to that list but require appropriate social distancing and sanitising – the risk of contagion is far outweighed by the general benefits to public physical and mental health.
I would make it explicit that shopping, collecting prescriptions, posting parcels and other services on behalf of persons staying at home is both lawful and to be encouraged (irrespective of whether the person staying at home is or is not “vulnerable” as defined). Pleased to note that on this point our local volunteer group has received endorsement from the Surrey Police and Crimes Commissioner.
Lastly, there has been a suggestion that reopening schools would be low risk. Not strictly within the ambit of these regulations, but worth a government review of the science behind that suggestion, as if it were correct it would make a huge difference to many people’s lives.
I think there is a general benefit in encouraging people to limit their exercise. For example I have been happily walking in the area near my house with my husband, sometimes on pavements, and sometimes on footpaths in woods. I’ve had three risky experiences. There have been 2 instances of a cyclist in racing gear coming up fast behind us and swooshing past on the woodland path. A step in the wrong direction, and I can be landed in hospital. The 3rd experience was having a heavily breathing jogger coming towards us, only moving out at the last minute to distance from us. Without really thinking, we carried on walking, taking the small risk of breathing in something they may have breathed out. I guess in future we’ll be more leery of joggers, but the more people who are out and about, the more likely incidents like this are going to happen. I think some improvement in public service communication would be a partial answer to this.
Sally
Unfortunately the scary stuff about outside transmission is not backed by science. Someone passing you whilst running, cycling or walking in the park is highly unlikely to infect you or anyone else. There is an expert panel who advise WHO in relation to Mass Gathering Events and they conclude that even on a this scale (think football matches and outdoor concerts ) the evidence is limited and risk assessments should be used to make an informed decision. Also consider evidence from cruise ships where people had infections before the problem was widely known yet even this artificial close and prolonged proximity did not lead to total infection. Typically 15-20%. Almost all infections are now in Hospital or care settings and whilst this can be horrible for those involved this is a typical pattern with respiratory infections and kills thousands every year even before Covid 19.
A little flexibility on ‘sunbathing’ might be useful if it can be carefully framed. Moderate exposure to sunlight is needed to create vitamin D in the body, which is required for bone health and the immune system. Properly distanced sitting or even lying for a short time in full sunlight should not in themselves be problematic. Some of the recent reactions look rather more puritanical. I should add that I am not a sunbather – after short exposure it’s time to get in the shade.
What about a rota system in city/town parks – some hours for dog walkers, some for families, some for joggers etc? There’s a fair bit of daylight now to accommodate everyone.
What about different rules for out-of-town places? Where I live, for instance, there are about 100 dwellings, about 50% of which are second homes. I can see no reason why the owners of these should not take up occupation, thereby easing the burden on London. Paperwork showing legal ownership + permission could be stuck in windows.
I can see no reason why people should not sunbathe, or have a bbq, in public, so long as they maintain social distancing.
How illiberal are these regulations?
1) It seems most odd that the restriction on movement is: “6.—(1) During the emergency period, no person may leave the place where they are living without reasonable excuse.”
This means I could be dancing a tango with my partner in the local park providing that when we left our home we were going shopping. The restriction, sensibly should have been “no person should leave or be outside the place where they are living without reasonable excuse.”
2) There is no “stop and account” power” provided to police in and in connection with the regulations. You don’t have to talk to them or tell them anything.
I hear of police moving on subathers, which appears to be upsetting to the sunbathers and I see that the guidance issued to officers is flawed, (which should be addressed), I see that Derby police have made fools of themselves with their drones and I see that Newcastle police, the CPS and a district judge all had their trousers pulled down by Kirsty Brimelow QC in connection with the treatment of Marie Dinou, but on the whole, there’s been little to worry about with regard to the regulations themselves.
No doubt we are all going stir crazy and no doubt this is affecting the vulnerable in our society the most, but the regulations make specific exemptions of the restrictions in respect of the vulnerable and those who help them.
I do agree, however, that any prosecutions should be at the insistence of the DPP. A good idea.
Could the regulations be modified to
(a) encourage police to focus on social distancing, rather than being outside per se;
(b) encourage councils to keep parks open?
The purpose of the lockdown is to reduce transmission by social contact. It is much less onerous on people with plenty of private space of their own (gardens and decent sized homes). For it to be sustainable (and morally just), it needs to be administered in a way which is workable for those without these benefits.
I have a concern about those with physical disabilities who are unable to jog, or go for a long walk, and may not have a private open space of their own.
Could local authorities make areas within parks available to such people, where they can sit (observing the prescribed distance) for, say, 20 minutes daily to give them access to sunlight, or just for their mental wellbeing? It would involve some monitoring, but we are told there are many volunteers available, and this would make a pleasant and useful task for them.
This would need to be accommodated within any revision to the legislation, but it is not beyond the wit of lawmakers.
My biggest problem with the current situation is the lack of trust for business to put in place risk assessments to adhere to principles but keep working. For example we coach small group sea swimming. Already before lockdown had separate arrival, 3 m social distance throughout session separate dispersal small numbers 12 max. Lifeguards and aquatic first responders so little risk of needing emergency services. So safe exercise with many regular local clients in need for mental health yet we are unable to trade and the local take away businesses are doing a storming business for example.
does not seem right to deny livelihood to some for no epidemiological reason. Many other businesses could do the same this is a known hazard with simple but effective mitigation strategies.