16th June 2020
Last Sunday – again – there was the publication on the Legislation.gov.uk website of further amendments to the coronavirus regulations that restrict movement and other things.
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.
**
Thank you for visiting this independent law and policy blog.
Please support the free-to-read and independent legal and policy commentary on this blog and my Twitter account either by the Paypal box above or by becoming a Patreon subscriber.
You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
**
Comments are welcome but pre-moderated, and so comments will not be published if irksome.
“Law is being used here as if it were some graphic equaliser or joystick”
I was thinking of a more penetrative, battery powered, device.
In your view, does Hanlon’s razor apply?
Always the best starting point, but never determinative
Isn’t this the way that Boris Johnson has dealt with every issue in his life? I agree that there being an emergency is no excuse. It was perfectly possible to enact major legislation during the War.
You note that:
“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.”
On a slightly broader point, I am curious to know what you think is the status in law of the instructions to discharge hospital patients into care homes without COVID-19 testing. It seems to have been obvious to professionals in the care home sector that this was dangerous. Are ministers protected in any way from the consequences of their decisions even when those decisions are obviously stupid and appear to have led to many deaths?
Knowing that something may be lethal and nevertheless acting recklessly without regard to the consequences is, as I recall, the definition of the offence of manslaughter.
Not wanting to speak for David, but this blog entry is worth a read on answering this type of question.
https://thesecretbarrister.com/2020/06/09/guest-blogpost-by-henry-blaxland-qc-does-the-buck-stop-legal-liability-for-death-from-covid/
Thank you for this.
The legal action by the aviation industry against the quarantine Regulations might, if successful, restore some sanity.
Can the widespread use of Statutory Instruments be a subject for Judicial Review?
I think it’s been abundantly clear since his unlawful attempt to prorogue parliament last autumn, that Johnson, and his main man Cummings, have a real and deep contempt for the traditional pillars of democracy in this country, and the largely supine “yes” men and women drafted in to the new (ie. post December 2019) government will obviously fall in line. This approach to legislation, and the constant avoidance of parliamentary, or any other form of meaningful scrutiny, bodes ill for the future of democracy in the UK (or England, at least) in my opinion.
Based on observations since since the Cummings débacle, it’s not so much a case of “Citizens will just give up trying to follow the law”, as “Citizens have given up trying to follow the law”. And how would those who don’t read SI’s or watch the Government’s Sunday press conference know what the law is today anyway?
I am retired and live in darkest Devon which has been a little sheltered from the the problems my daughter is faced with. She is working from home in London and home educating two small children.
From what she has told me many are now following the path of Mr Cummings and acting on their own interpretation of the rules.
I am concerned that given the mess that you have highlighted the government may be unable to deal with further spikes in infection rates should they occur.
You describe the situation in England. There are also regulations, advice, guidance etc for Wales, Scotland, and N Ireland (where I am), all apparently slightly different.
And N Ireland shares an island with the Republic. The regulations on either side of that wretched Border are also different.
An added complication is that visitors from England are, because of differences in travel restrictions here in Wales, being told to return home. Not to mention the difficulties for us in trying to remember the differences between what applies here and what applies ‘across the border’.
None of this really comes as a surprise because the Government openly said in the House of Commons that this is exactly how they wanted to manage Brexit too. If they were willing to deal with the biggest fundamental change in a generation in such a way then a ‘fleeting nuisance’ like a pandemic never stood a chance of getting proper scrutiny.
David, I greatly appreciate your analysis, yet this post leaves me wondering what the Government can/should do in place of adjusting the regulations? As the situation is somewhat fluid (‘we have never faced an situation like this before, you know’), how do you think the authorities can manage the loosening of lockdown regulations in a better manner? Please note that I am not excusing their fumbling, bumbling and ambiguity in the months to date, just wondering if there is a better way forward from this mess.
Thank you again for your legal insights.
Fair questions
1. The government should be using the Civil Contingencies Act for such regulations, when there is a genuine emergency – as that has built-in legislative and judicial supervision. The use of public health powers is, in my view, a cynical attempt to bypass that regime.
2. Parliament is now sitting, and so can be brought into the legislative process.
3. Draft provisions could be published before enactment – there is no good reason for this not to happen
“3. Draft provisions could be published before enactment – there is no good reason for this not to happen”
I strongly suspect, I’m afraid, that the “good reason” is to avoid daft measures which have been drafted with at *least* one eye to public optics being subject to any criticism or debate.
It seems perfectly possible that Johnson and his talentless crew have entirely failed to understand that one of the few advantages of our overly adversarial legislative system is that it applies testing pressure to proposals, somewhat similarly to the way in which bugs in open source software are, at least in theory, more likely to be discovered.
As legal Twitter can generally be expected to reduce the latest provisions to an ugly mess before Monday lunch-break, one might have hoped that “lessons could be learned,” but alas…
Or, as I put it to a former colleague recently,
“It’s really not a good sign when draft provisions incite derisive ridicule in the House of Lords … but this is still vastly better than that they should do so *after* passing into law!”
P.S.
‘The Health Protection (Coronavirus, International Travel) (England) Regulations 2020’
Para (4)(4)(c) ends “…or other suitable place” (no other definition or interpretation mentioned in the Instrument).
Para (4)(4) simply doesn’t apply to anybody who can afford a competent lawyer, does it?
I would also suggest looking at the way this has been handled in other countries.
If you don’t speak any other European languages, The Netherlands has an English-language website, and a fairly similar situation to the UK:
https://www.government.nl/topics/coronavirus-covid-19
Just like New Zealand, they have laid out a series of clear stages for lifting lockdown. Dutch people have had this information available for weeks now, with the caveat that timings will depend on the situation and may need updating:
https://www.government.nl/topics/coronavirus-covid-19/tackling-new-coronavirus-in-the-netherlands/public-life
I have been using the published plans of a few European governments to guide my expectations of the lockdown changes in the UK, assuming we are some weeks behind, and it has proven a useful rule-of-thumb.
If ever there was a need for a written constitution that respects the existence of the four constituent nations of the so-called United Kingdom (whose flag incidentally, only respects three of its constituent nations), now is the time.
“ how weak our political and legal system is on providing proper scrutiny, or offering checks and balances, when fundamental rights are at stake,”
My thoughts when the Cooper–Letwin passed as MPs and Peer sought to override our democratic rights.
“ In reality, however, the law will just be discredited as a whole.”
But this has already occurred during the BLM protests/marches and the failure to enforce social distancing. Someone already fined for this must feel aggrieved.
‘1. The government should be using the Civil Contingencies Act for such regulations, when there is a genuine emergency – as that has built-in legislative and judicial supervision. The use of public health powers is, in my view, a cynical attempt to bypass that regime.’
If they had used the Civil Contingencies Act rather than Public Health what would have been the position of the devolved administrations? Would Westminster have been taking decisions for the whole of the UK?