16th June 2020
These regulations were released without drafts being published, let alone being consulted on; they were made under emergency provisions, even though parliament is sitting; there was no proper announcement or accompanying guidance; and they interfere with fundamental rights.
These are the fourth iteration of the regulations which cover England, with (it seems) some twenty-two sets of such regulations so far made for the constituent parts of the United Kingdom overall.
It is hard to find words for how daft and dangerous this approach is to criminal legislation, especially given the freedoms being curtailed.
In respect of the English regulations we have had botched drafting from the beginning, indicating this legislation has not been subject to basic internal civil service quality checks.
(I understand that for the English regulations they are being dealt with by Home Office officials and lawyers, though nominally they are going out under the name of the Secretary of State for Health.)
There are three practical problems and one objection from first principle about this approach.
First, citizens are unable to regulate their own conduct so as to ensure they are not in breach of the criminal law.
Second, those charged with enforcing the regulations are not in any decent position to know what the law is that they are supposed to be enforcing.
Third, those responsible for advising citizens, organisations, businesses and the police and government themselves cannot keep up.
(I am a former government lawyer, trained how to draft statutory instruments who explains and advises on public law for a vocation, and I am at the point of not knowing what is and is not legal any more.)
It is a mess.
But there is a deeper problem than impracticability and uncertainty.
Law is being used here as if it were some graphic equaliser or joystick.
Little changes here and there, extensions of prohibitions and then of exceptions there, regulations amended and then amended again.
It seems like the nudge theory, but applied to criminal legislation.
The belief appears to be that changing the law in this constant fiddly way will, in turn, have real life changes.
In reality, however, the law will just be discredited as a whole.
Citizens will just give up trying to follow the law, as will those charged with enforcing that law.
Not even the go-to argument for legislative stupidity – there is an emergency on, you know – justifies this approach.
Indeed, these constant changes undermine emergency legislation when such regulations are the very sort of legislation that needs to be credible and enforceable.
So what is happening is not only daft, but dangerous.
One day perhaps we will find out more about why the government adopted such a misconceived approach.
But in the meantime, the coronavirus regulations are a case study in just how weak our political and legal system is on providing proper scrutiny, or offering checks and balances, when fundamental rights are at stake,
No doubt the ministers, officials and lawyers involved have got their evasions and excuses already in place, hoping that they will never actually be accountable for this misuse of law.
And as always, they will probably get away with it.
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