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.
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.)
There are two concerns with this: one formal, and one constitutional.
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.
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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