23rd April 2020
Yesterday, slipped out without formal announcement, was a significant extension in England of the Coronavirus regulations.
The extension was by way of this statutory instrument.
The substance of the extension is an amendment to regulation 6 of the Coronavirus regulations, which I discuss on this blog here.
Before this amendment, the key criminal offence under regulation 6 would be committed when a person left the place where they were living, without reasonable excuse.
That had the merit of legal certainty, but it also created a gap.
What would happen if a person, having had a reasonable excuse to leave the place where they were living, then ceased to have a reasonable excuse?
Under the initial regulations, that would still give rise to a power for an officer to make a reasonable direction that such a person return to where they live, and it would be a criminal offence to breach that direction.
But it would not be a criminal offence in itself to be out without a reasonable excuse, as long as a person had one when they left the place where they were living, as criminal offences are interpreted strictly.
(In practice, this made the evidential burden for the offence difficult, as how could the prosecution show that a person already outside did not leave the place where they were living without a reasonable excuse.)
The new amendment deals with this by simply adding “or be outside of” to the offence, which now reads:
“During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse.”
One response to this amendment is fair enough: a technical gap is filled.
(And no doubt some Reply Guy is already typing a comment to that effect for a comment below.)
But.
There are two concerns with this: one formal, and one constitutional.
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The formal problem is that the Home Office officials and lawyers (who are responsible for this part of the regulations, though the Health and Social Care Department are responsible overall for the regulations) have been rather naughty.
This is an extension of the law – but they are pretending it is a “clarification” – and they are doing that for a naughty reason.
It is not a clarification, as it means that a person can now be committing a criminal offence who beforehand would not be committing an offence.
And it is because of the gap such an amendment was necessary.
Yet, in the explanatory note, it is stated:
“Regulation 6 is amended to clarify that under regulation 6(1), the prohibition applies both to leaving the place where a person is living without reasonable excuse, and also to staying outside that place without reasonable excuse.”
This attempt to pass the amendment off as a “clarification” is not just an attempt to save face: the amendment is because there are those who have had penalty notices wrongly imposed, or have even been wrongly arrested, charged and fined, under the previous provision.
And as it is not (normally) lawful to create retrospective offences, the Home Office are passing this off as a clarification and crossing their fingers nobody notices.
An explanatory note, however, is not part of the law, and so it is open to a court to take a different view as to whether previous penalties and so on have been lawfully imposed.
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The constitutional problem – which by itself does not affect the legality of the regulations – is that this significant extension again has had no parliamentary approval.
The headnote of the amendments even says “the Secretary of State is of the opinion that, by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament”.
This is literally incredible: parliament is now back in session, and so there is no good reason whatsoever for the amendments (and the regulations) to avoid having parliamentary approval.
The government – even in an emergency – should not be in the habit of creating or extending criminal offences by ministerial fiat when parliament is sitting.
And what was permissible (perhaps) at the beginning of this health crisis should not become the norm.
None of this is to say that the offences under the regulations are wrong in practice – but democratic approval should be at the heart of such immense restrictions on everyday life, and not an afterthought.
Criminalising otherwise normal social activity should have the greatest possible mandate by parliament before it has effect, not be slipped out with no parliamentary approval at all.
Something worrying is happening here.
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Comments are welcome but pre-moderated, and so comments will not be published if irksome.
Thank you very much, David, and well spotted. I really hope that some opposition front benchers, or at least their staff, read this blog so they can react to the valuable points you make.
Two things spring to my mind on reading this: first as a former career civil servant (though not in the UK) I know there is a kind of inbuilt pressure, even if not stated, to increase the power and reduce the oversight of the administrative functions – only with the best possible motives, of course. Second, and more personally, I would not trust Home Office lawyers (or other officials) as far as I can throw them, and I’m not that strong.
So please do keep up this vital work.
David Allen Green writes:
“What would happen if a person, having had a reasonable excuse to leave the place where they were living, then ceased to have a reasonable excuse?”
“Under the initial regulations, that would still give rise to a power for an officer to make a reasonable direction that such a person return to where they live, and it would be a criminal offence to breach that direction.”
“But it would not be a criminal offence in itself to be out without a reasonable excuse, as long as a person had one when they left the place where they were living, as criminal offences are interpreted strictly.”
Part of this is mistaken. In fact, there was no power under the initial regulations “for an officer to make a reasonable direction that such a person return to where they live” where such a person was outside their home without reasonable excuse, nor “would [it have been] a criminal offence to breach that direction.”
The reason for this is that Regulation 8(3) said (it still does):
“Where a relevant person considers that a person is outside the place where they are living *in contravention of regulation 6(1)*, the relevant person may—
(a) direct that person to return to the place where they are living, or
(b) remove that person to the place where they are living.”
The power in 8(3) is derived from a 6(1) offence. It is not a power provided according to the whim of an officer.
An officer was not entitled to extend the meaning of 6(1) to include a separate offence of “being outside the home without a reasonable excuse”, and therefore could neither reasonably direct anyone to return home or remove them there.
An officer doing so would have acted unlawfully. Provided a person offered a lawful excuse for leaving their home, the police had no powers to act against them under the initial regulations other than in respect of the restriction on gatherings in a public place, in Section 7.
The amendment to 6(1) has changed this and has given teeth to the power in 8(3), allowing the offence in 9(3) to be made out and the penalty in 10(1) to be applied. It has also, of course, changed the offence in 9(1)(b).
Not a mistake, as I do not disagree with your construction of 8(3) – my summary of the power was (at least to you) unclear..!
Apparently this is so. There was nothing in the initial regulations that supported a notion of a person having “ceased to have a reasonable excuse” for leaving the place where they were living. They either left with a reasonable excuse or they left without one. The reasonableness of the excuse cannot have fallen away with the passage of time. And so it could not have given rise to a power (“in contravention of regulation 6(1)”) because regulation 6(1) had not been contravened.
On that case, I too was confused but am now convinced by the argument of Robert Hughes.
Like David, I am not sure I share your construction of s.8.
To my eye, it appears to give a relevant person the power to carry out the described actions where they consider someone to be in breach of s.6(1). Presumably, there must be an assumption that their judgement should be reasonably well-founded but one equally assumes that courts would allow a broad discretion to the relevant person in the exercise of that judgement.
If there is something to my construction, I am not sure I am comfortable with the thought that this section gives a relevant person the power to physically remove me to my home if s/he forms the view that I am in breach of s.6 without having to evidence it to the nth degree but it does seem to me that that is what it is saying.
Thanks for your reply, Hugh. But DAG said he does not disagree with my construction of 8(3).
So many people in and outside the legal profession formed the view that what 6(1) must have been intended to mean was that nobody should be outside their home without a reasonable excuse, but that is not what the regulations stated. And so one can allow as much “broad discretion” as one likes but it cannot ever extend to the creation of an offence that does not exist.
Therefore, a police officer properly understanding (as they must) the regulations they are enforcing could not utilise the power in 8(3) to direct someone to return home on the basis that they were doing something “in contravention of regulation 6(1)” unless that someone had given an unreasonable excuse for having left their home in the first place.
Yet police guidance on enforcement was written by the College of Policing as if it was indeed an offence to be outside the home without a reasonable excuse.
My judgment was from the outset that the original draft was daft. And it’s been amended. I cannot accept that the amendment is ill conceived (I know you don’t say this). It seems logical and sensible to me. Amendments are not clarifications. They are amendments. This is a change in the law not a change in the interpretation of the law.
For once I disagree. Surely our Parliament did intend for the police to be able to order people back indoors during this crisis and the original wording was useless.
Perhaps it is underhand of the govt to suggest it is a clarification rather than a correction, but surely this is the way of much of today’s politics.
Indeed. Was it not clear that the government intended for people not to be outside without reasonable excuse rather than to leave their home? I also agree that this seems more like a correction – “Sorry, what I meant was…” – than a clarification. As written, s.6(1) was perfectly clear before!
“Our Parliament” has not had the opportunity to debate and approve the original regulations (made the day after both Houses rose for the Easter adjournment).
In which case it is still a correction and Parliament will deal with it in due course.
Thank you for such a clear explanation – at this point not clear to me if Government action is deliberate or the outcome of some rather tired officials doing their mistaken best. Hope Starmer raises it.
I am glad that you are monitoring the sleight of hand by which laws are extended without Parliamentary oversight. Like others, I hope that MPs are following your blog – I have drawn the attention of my MP (Keir Starmer) to it.
More generally, I do find British indifference to protecting freedoms bizarre.
I cannot find an opinion poll comparison but I do not think there is in any other European country widespread support for leaving the ECHR, for example.
The idea that human rights are inherent in the British character and therefore do not need protecting is one of the most damaging features of British (English) exceptionalism.
Excellent piece. Why are MPs silent? It is as if the prorogation case never happened.
Previous reply was a triumph of machine over human!
The issue of ECHR is different. It is a question of whether the supreme court should be national or supra national. Given the tendency of SCs to quasi legislate this raises important questions of democratic accountability and sovereignty. The US shows that vigorous defence of rights is about practice not location. Gina Miller showed that the British are successfully challenge the government but are not accustomed to doing so, and that MPs have lost sight of their role
BTW “exit” is a misnomer. Until Blair, the UK was a tier 2 member which meant considerable involvement but not submitting to ECHR as SC. Ironically it was Labour that opposed and Tory that supported going to tier 1 back in the 50s for political reasons
Couldn’t disagree more. That the British deem their human rights innate and not the arbitrary gift of authority is what has historically deterred our government from even trying to define our rights. Once a people relinquish inalienable rights for political ones, they shouldn’t be surprised when the politicians start curtailing them.
That we have, until recently (i.e. until we entered the E.U.), enjoyed a far freer society with far less government intrusion than any of our European neighbours is testament to this fact.
I think you are making a colossal miscalculation of the British psyche.
The evolution of rights in Britain is not down to an innate understanding of them. Until C18 these rights were vigorously fought over – literally and figuratively – with the sovereign. Magna Carta may be in some ways a property dispute among the rich and was not the first accord between King and nobles but it laid the base for 500 years of tussle, with the crown gaining at times but generally ceding rights for immediate needs or under pressure.
1688 was the culmination of that process. Far from relying on unwritten rights, the Bill of Rights was explicit and far reaching. It is no coincidence that the Glorious Revolution declarations were the basis for the US founding documents (along with inspiration from Magna Carta, Coke and Locke among others), often word for word. Those documents took care to base themselves on all the previous documentation of rights (as did the Americans, which is why Burke sympathized with them). The SC rulings on both Art 50 and Prorogation were quite clear that there is a large amount of written constitution and rights.
Post 1688 the fire went out of the pursuit of rights no doubt because the victorious political class was quite happy with its status and cared little for the rest of the population getting more power. It took 150 years for suffrage to be expanded somewhat and rotten boroughs to be abolished, and then another 50 years to get a further extension to something closer to universal male suffrage. Trial by jury was most definitely not by “peers” until comfortably into C20. There were campaigns to broaden rights and suffrage but these were generally resisted and faded.
So why do the British think that they have historically enjoyed “exceptionalism”. Partly because the enfranchised class loudly congratulated itself on what it enjoyed and pushed the image that everyone was benefiting. Even more important was that after 1688 Britain had a continuous form of government without revolution or dramatic constitutional change. From Victoria onwards there was comparatively little social and political unrest and that gave rise to the popular view that Britain was “civilized” and people had broad rights. Compared to the tumultuous event on the Continent that looked true. Overthrowing of governments led to codification, often more than once, but it is easy to miss the energy and enthusiasm in defying and defending rights, an energy largely missing in Britain.
That assumption continues. Having grown up in the UK and lived in the US I am struck by how little the British litigate to uphold their rights. Part of this can be explained by the sovereignty of Parliament and its role in protecting those rights. But there has been a gradual shift of power to a presidential premiership with both the Commons and Cabinet letting rights slip. What is so remarkable about Gina Miller – a reminder of how the interest in rights vegetated – is that in less than 3 years she has been responsible for 2 of the 2 (3?) SC rulings in 400 years on the sovereignty of parliament vs prerogative. Compare that to the US SC.
As Sumption said in the Reith lectures, the US model is not necessarily “good” as judges end up making law and rights. This is very evident in the record of ECHR and is why it is important for the SC to be a domestic rather than supra-national court.
It may have been possible for Parliament to discuss the new rules but doesn’t Parliament approve by means of votes? I don’t think a remote voting system is yet in place. (Maybe a games developer is right now writing a virtual lobby the MPs can direct avatars to. Just so they don’t accidentally show that push button voting is perfectly practical).
Excellent piece. Why are MPs silent? It is as if the prorogation case never happened.
Thank you so much for highlighting this. I will bring it to the attention of my MP, Laila Moran, as well.
Layla Moran is my MP as well! I have written her 3 emails already on various concerns relating to the complete removal of rights under this draconian legislation. Would you kindly update me if and when you receive a reply? My email address is jillkirkwood@nhs.net
I recall the advice of the Irish Politician Dr Kennedy..”the reason the sun never sets on the British Empire is that God doesn’t trust what those bastards might get up to in the dark”
Plus ça change,Plus la même chose.
Thanks for drawing this to our collective attention.
I think it is worth noting that there is still Parliamentary control. Either House of Parliament can at any time reject the instrument, which means that it ceases immediately to have effect (section 45R of the parent Act). I’m certain you know that – but a few of the comments suggest that readers of the blog may not have appreciated that point.
That is obviously not a complete answer as to whether the urgency procedure was appropriate. I would be interested, incidentally, in whether you think the decision to use the urgency procedure is reviewable.
It’s interesting that this clarification has not been mirrored in the amendments to the Welsh regulations (The Health Protection (Coronavirus Restrictions) (Wales) (Amendment) Regulations 2020).
As I have recently moved from England to Wales, I am taking a more active interest in this. The English border is close to me. What if I leave home in Wales (for an allowed reason) and then cross to England and am judged by police not to have an allowed reason for a continued absence from home. Offence or not? Mystified.
I know many would see this as ‘nitpicking’ . I don’t – is this a sign of too much time available under lockdown?
Loiter with one leg on either side of the border, and tell how you get on?
(This is not legal advice.)
Yes Simon, it is
Too much time, too much time!!! Just pop out for the shopping/pharmacy/going to see someone medical/exercise reasons and you’ll never have a problem. It’s so simple, honestly!! 🤣
I think that this is a question of principle, and a vitally important principle. The law has been amended under the the guise of a clarification. This law affects fundamental freedoms. It has been amended without the approval of parliament. This should be of concern even though the criminal offence can, in this instance, be avoided by coming up with a “reasonable excuse”.
But the Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 2) Regulations 2020 (SI 2020/452 (W.102) which came into force at 12.01am on 25 April do make a “clarification” of the movement restriction regulation (reg 8) although it does not exactly mirror the English clarification.
Whereas in England it is an offence for a person to “leave *or be outside of* the place where they are living without reasonable excuse”, the Welsh equivalent makes it an offence for a person to “leave or remain away from that place” without reasonable excuse.
The Welsh version seems to deal appropriately with the point raised by Martin Campbell on 23/4 at 1606 that you are remaining outside of (why the “of”?) your home even if you are returning to it having completed the task which gave you a reasonable excuse for leaving. If you are returning home, you are, arguably at least, not remaining away from home.
It doesn’t though deal with Kat’s point (24/2 at 1007) that by working, having travelled legitimately to work, you are remaining outside of (and on the Welsh version) away from home, and that the actual working is not a reasonable excuse.
An interesting point about the new Welsh regulations is that they have amended the Welsh equivalent of English reg 8(3) about the police (or PCSO) giving a direction to return home.
Previously, like reg 6(3) (Eng), reg 10(2) (Cym) only required a relevant person to “consider” that a person was contravening the requirement in reg 8(1) (=reg 6(1) (Eng)), reg 5(2) of the Welsh No 2 amendment regulations substitutes “has reasonable grounds for suspecting” for “considers”. A similar change has been made in respect of gatherings.
It’s not all good news from Wales though. The Welsh government has issued a document “https://gov.wales/leaving-home-exercise-guidance” which purports to explain the regulations as amended, but makes all sorts of statements which are no doubt how the Welsh government would like people to behave but are no more than guidance, not an explanation of the law. It purports to say that because an excuse must be a resoable excuse then for example the exercise taken must itself be reasonable (not too long to far away from home).
Despite my name I am not Welsh.
Having made it illegal under 6(1) to “be outside of the place where they are living without reasonable excuse”, do we not also need to add a clause to make it legal in 6(2) “to return to the place where they are living”. How else is it legal to be on your way home?
In some ways, it’s just a small point, but having identified an oversight in the original regulation, it’s disappointing to see another oversight in the correction.
It’s also worrying that we have switched from an error that required forbearance from the public to an error that requires forbearance from law enforcement.
I obviously agree with you but also wanted to say – imagine what they’d have done if they’d gotten their way regarding Brexit and their plans to be able to do things without any Parliamentary scrutiny. We’d have been so far down the line that I don’t think we’d have a chance under current circumstances. It’s frightening.
A good point, IMHO
A perhaps technical question, but one with serious implications as to the nature of what is in progress:
As a former government lawyer, to what extent do you think that Home Office lawyers are actually exercising their professional role here —”How can these rationally justified objectives be realised though legal provisions?”— or are they rather just being told to “Spell-check this!”?
One of the major flaws in the UK polity, to my mind, is the degree to which politicians and their SpAds can intervene *directly* in the drafting of legislation and regulations, this both enabling covert intentions to frame and be deeply embedded in legal provisions without adequate exposure to democratic oversight, and also leading to, frankly, lousily unprofessional law-making.
In this case, given that it took legal Twitter less than a day to reduce the original Regulations to pieces too minute for my presbyopia to view comfortably, it is hard to believe that professionals were leading on what should have been a rather technical provision.
The excuse is “to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work”
Does that now mean that if you are at work but not traveling it is an offence to not be at home? Surely that cannot be the intension of the law.
Perhaps the suggestion is that the sages are correct and it’s better to travel to work than arrive.
The amendment regulations were made on 21 April, brought into force at 11.00 am on 22 April and laid before Parliament 90- minutes later.
In such circumstances the Department concerned is required to write to the Speaker of the House of Commons with an explanation for why it was necessary to bring an instrument into force before it was laid before Parliament. The Speaker is required to lay such letters before the House (Standing Order No. 160).
The letter concerning the original regulations (2020/350) was laid before the House on 22 April.
The Joint Committee on Statutory Instruments is required to examine the original regulations and the amending regulations, and is expected to do so before the date of any debate on the motion to give retrospective approval to them.
There are certain grounds on which JCSI can bring an instrument to the special attention of both Houses by means of a report. These are listed in House of Commons Standing Order No. 151. They include:
(ii) that it is made in pursuance of any enactment
containing specific provisions excluding it from
challenge in the courts, either at all times or after the
expiration of a specific period;
(iii) that it purports to have retrospective effect where the
parent statute confers no express authority so to
provide;
(v) that there appears to have been unjustifiable delay in
sending a notification under the proviso to section 4(1)
of the Statutory Instruments Act 1946, where an
instrument has come into operation before it has been
laid before Parliament;
(vi) that there appears to be a doubt whether it is intra
vires or that it appears to make some unusual or
unexpected use of the powers conferred by the statute
under which it is made;
(vii) that for any special reason its form or purport calls for
elucidation;
(viii) that its drafting appears to be defective;
or on any other ground which does not impinge on its merits
or on the policy behind it;
The Secretary of State for Health issued a written statement on the amendment to the regulations earlier today (HCWS 206, available here: https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-04-28/HCWS206/ )
“On 26 March 2020, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force, detailing Regulations on social distancing and business and venues closures. These Regulations set out that a review of these Regulations must take place every 21 days to ensure they are both necessary and proportionate. The Government completed the first review as required on 16 April 2020.
“In this review it was agreed that no change would be made to the existing restrictions and that they would remain in place for at least three more weeks. Recognising the potential for harm to public health and the economy if measures were relaxed too soon, it was agreed that five conditions would need to be met before the measures are eased. These conditions are: 1) Evidence that NHS critical care capacity across the UK will not be breached; 2) there is a sustained and consistent fall in the daily death rate; 3) infection rates decrease to an acceptable level; 4) supplies of PPE and testing meets future demand; and 5) clear evidence that changes won’t risk a second peak in the virus.
“However, a small number of minor amendments are required to clarify the Regulations and ease the operation of the Regulations. They relate to enforcement of the measures, and businesses and venues affected.
“Publicly available Government guidance on Gov.uk is being updated to ensure it fully corresponds with the amended Regulations. These are strict measures, but they are measures that we must take in order to protect our NHS and to save lives.”