Author: David Allen Green

The dangerous daftness of legislative “fine-tuning” and “nudges” – the Coronavirus regulations

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.

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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.)

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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.

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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.

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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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Law, history, slavery

15th June 2020

Many people – even those who have studied law and history – know almost nothing about how the law was used to facilitate slavery in English history.

People may have heard of Wilberforce and that the slave trade was abolished in 1807 and slavery itself in 1833.

They will therefore know a bit about how slavery ended but not how it was kept in place.

Over on Twitter I have recently done a couple of threads on law, history and slavery.

The first is on the Yorke-Talbot Opinion of 1729.

https://twitter.com/davidallengreen/status/1271696745836228608

The second is on the Zong case of 1783.

https://twitter.com/davidallengreen/status/1272069550746546176

I also did a thread in response to a former Member of Parliament who had invoked the jurist William Blackstone to suggest slavery had been abolished in 1753.

https://twitter.com/davidallengreen/status/1272120573846589440

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The point of these threads is to show that slavery was, at the time, commonplace and was facilitated by the law, as well as by insurers and so on.

Slavery was not just Edward Colston of Bristol going off on a frolic of his own.

There was an immense legal, commercial and administrative apparatus in place to enable slavery.

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Slavery is about property in human beings, and the slave trade is about transactions in respect of that property.

Slavery was managed from afar: few slave merchants and very few domestic owners of slaves ever saw the enslaved face-to-face. Slavery was thereby dealt with by correspondence: with crews, agents and estate managers.

And so, because it was about property and transactions and done from afar, there are lots of records.

Lots and lots of records.

And so like that modern horror, the Holocaust, you can see the dealings with slavery in record after record.

For those involved, it was mundane.

Slaves bought and sold, and managed, by ink and paper, by everyday people on an everyday basis.

Great Britain’s very own banality of evil.

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Nowhere has this been shown so well as in the BBC documentary on Britain’s Forgotten Slave Owners.

In this documentary David Olusoga uses the detailed records of the immense compensation paid to slave owners in 1833 to demonstrate just how far and wide slave ownership was in British society.

Slave ownership was like owning a time-share in Spain or a special savings account.

The import of all this should be to correct the skewed cod-history of British nostalgic exceptionalism and to remind us of the extent to which Britain was involved in (and benefitted from) slavery and the slave trade.

And a rounded, more accurate understanding of our past is a good thing in itself.

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Why we should be worried about the use and abuse of statutory instruments

12th June 2020

In a Financial Times video yesterday I set out some particular concerns about the Coronavirus quarantine regulations, and in earlier posts on this blog I have set out the problems with earlier versions of the Coronavirus restrictions on movement.

This post takes a step back from particular regulations to set out briefly why we should be worried about the government’s use and abuse of statutory instruments.

The phrase “statutory instrument” is odd for someone who is neither an official nor a lawyer: instruments in everyday language are tangible things – musical or surgical instruments.

Statutory instruments are not really tangible things (though they can be printed): they are dull-looking and often dense formal documents.

And putting the word “statutory” in front means you also have the sort of legalistic term that for normal people is a prompt for glazing over and switching off.

Yet statutory instruments are – or can be – troubling things.

Why?

Three reasons: legal effect, lack of effective scrutiny, and governmental convenience. 

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First: legal effect.

As the word statutory tells you they are the law of the land, as much as any Act of Parliament.

In constitutional theory, a statutory instrument should be within the parameters of a parent Act of Parliament.

And again in constitutional theory, a statutory instrument can be challenged in court as outside the scope of that parent Act.

But in practice, the provisions of parent Acts can themselves be very wide and the prospect of any court challenge usually unrealistic.

In effect, if not in technical legal form, they are as much primary legislation as any Act.

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Second: lack of effective scrutiny.

Statutory instruments become the law of the land without any scrutiny (or any real scrutiny).

They are difficult to challenge in parliament and impossible to amend.

They either go through on the nod (the affirmative procedure) or without any nods at all (the negative procedure).

And the sheer number of them means that there is no alternative to this lack of real scrutiny.

The purpose of statutory instruments was historically for there to be a flexible way of legislating on technical issues (as envisaged in parent Acts of Parliament) or to place on a domestic legal basis laws agreed elsewhere (for example under the European Communities Act).

Now statutory instruments, other than a nominal and ceremonial moment in parliament, are effectively legislation by government departments.

Constitutional theory holds that that it is the legislature that legislates and the executive that executes, but the reality is that the executive legislates.

Statutory instruments are in effect executive orders by another name.

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Third: governmental convenience.

Once you have a thing that (a) has the same effect as an Act of Parliament and (b) has none of the inconveniences of actually passing an Act of Parliament, you will tend to get abuse.

The government will have every reason to try to use statutory instruments as much as possible and for as many different things.

And so the recent coronavirus regulations have created the widest criminal offences in modern legal history, potentially criminalising everyone the moment they walk out of their home.

They even purported to criminalise what goes on between consenting adults in their own homes.

These regulations were, at least on their face, significant interferences with fundamental rights.

But they were slipped out without formal announcement and had immediate legal effect.

And because they were under the Public Health Act, there was not even any parliamentary stage before they took effect, ceremonial or otherwise.

The fact that the regulations were as ludicrous as they were illiberal is a happy accident.

Their lack of practical enforceability should only be a relief to the constitutionally gullible. 

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We are so familiar with the comforting notions of the British constitution that we are often blind to what happens in practice.

What we now have is legislation, on an industrial scale, from the executive, sometimes casually interfering with fundamental rights.

The government – ministers and officials – are now in the habit of doing this.

And that is why we should be worried about the use and abuse of statutory instruments.

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My new “Guided Tours” at the Financial Times

11th June 2020

This blog has been quiet recently, though not through lack of law and policy material.

The main reason has been illness – nothing too serious nor covid-related – but another reason is the fast pace of recent events mean that considered responses are often quickly redundant or at least stale.

My personal Twitter account has therefore been my main means of providing commentary.

There has also, however, been another outlet for my commentary – I have now done two videos for the Financial Times (where I have the wonderful title of “contributing editor”).

I have called these videos “guided tours”.

I sit with a document (but without notes) and speak away into a mic as I go through the document.

The Financial Times’ production wizard Tom Hannen then takes the audio and then applies it to a visual tour of the document which he creates.

The intention of these “guided tour” videos is two-fold.

The first is to give an exposition of a topical document by showing the viewer the way through the document for themselves.

The second is to use that document as a way of explaining things about such documents more generally.

The first document was Dominic Cummings’ statement, which I analysed as a witness statement.

The second was the recent quarantine regulations, which I analysed as a statutory instrument.

My hope is that we can go on to do Acts of Parliament and significant court judgments.

These videos were Tom Hannen’s idea and initiative, not my own (and so he should take the credit), though I instantly realised how they could be useful devices for promoting the public understanding of law.

The videos are hosted at FT.com and also free to view on YouTube – and I have created a playlist to which you can subscribe where I will add each video.

The videos, as with any novelty, have faults but the feedback from legal professionals, trainers and teaches of law has so far been positive – though that may be partly because the videos are a novelty.

Any constructive feedback and suggestions for further videos welcome.

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Why the Attorney General should resign

5th June 2020

On 23 May 2020, the Attorney General for England and Wales tweeted the following tweet.

Note the Twitter account states in the bio that the tweeter is the Attorney General for England and Wales.

That tweet in turn quoted another tweet where a journalist set out a public statement from Number 10, the office of the Prime Minister of the United Kingdom.

The public statement set out a version of the events of the now infamous excursion of the Prime Minister’s adviser Dominic Cummings.

The statement ended, as you will see from the tweet: “Mr Cummings believes he behaved reasonably and legally”.

Note the very last word of the statement is “legally”.

And if there was any doubt, the journalist’s own tweet repeats it: “legally”.

The Attorney General had therefore tweeted that there had been a clarification that, among other things in the statement, Mr Cummings had behaved legally in respect of that excursion.

Of this there can be no serious doubt: it is the natural meaning of what she tweeted.

She may not have intended to do so, and she may not have even read the statement she was endorsing, but that is what she did.

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By way of context, the Attorney General was not the only government minister who tweeted that morning.

Other ministers tweeted about the same time with similar statements quoting the same journalist’s tweet containing the statement.

The impression that gave, of course, was this was a coordinated attempt by ministers to support Mr Cummings in what was then an emerging political scandal.

The problem is that the office of Attorney General is not just another government ministry.

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The office of Attorney General is special.

The Attorney General is the government’s senior legal adviser.

The Attorney General superintends the Crown Prosecution Service.

The Attorney General has a constitutional function as safeguarding the public interest in certain legal cases.

The Attorney General can intervene in private prosecutions and bring them to an end.

The Attorney General also happens to the “leader of the Bar”.

Although the office is held by a politician, the role is to be independent.

(For more on the historic office of Attorney General, click into and read this superb though detailed post by the late Sir Henry Brooke, the former appeals judge.)

One role for the Attorney General therefore is not to make public statements on particular cases, for either political or other reasons.

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Once the tweet was tweeted there was plainly a problem.

It was not the sort of endorsement an Attorney General should be publishing to the world.

Had there been a mistake?

The current Attorney General is new to the office, and although a barrister she is not a senior one.

So perhaps she did not realise what she was doing.

But as she sets out on her own website:

“In 2010, the Attorney General appointed me to the specialist Panel of Treasury Counsel, which meant that I represented Government Departments in Court.”

So even if she did not realise the import of what she was doing, she should have done so.

Nonetheless, the tweet was evidently an error and she could have swiftly apologised, acknowledging that it was a tweet that should not have been sent.

Had she apologised and retracted the statement, few would have pressed the issue further.

But she chose not to apologise.

She chose to do something else instead.

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The shadow Attorney General, rightly, set out his concerns about the matter in a letter.

The Attorney General sent a letter in reply, and is set out in this tweet.

The wording of her letter is strained – and one gets the sense of someone at the Attorney General’s office working hard to word the indefensible.

But it was false of her to state that there was “no question of [her] having offered any public legal view”.

There was more than a “question” of her having done so: she had.

She had publicly endorsed a statement that had expressly described Mr Cummings’ conduct as legal.

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And if the false statement in the letter was not enough, she yesterday repeated the false statement on the floor of the House of Commons.

Please watch this video clip.

https://twitter.com/elliereeves/status/1268574169119285251

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So both in a formal letter to her shadow and in the House of Commons, the Attorney General has falsely maintained that she had not expressed a public legal view on the Cummings case.

This is even though this is directly contradicted by her own tweet.

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This is not just a technical or trivial problem, where the Attorney General erred with a daft tweet.

This goes to the confidence the public can have in the holder of that office having sufficient independence within government.

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There is even the suggestion that her involvement in this particular case went further than a misconceived tweet.

If this is true, then not only did the Attorney General publicly state her legal view on the merits of Mr Cummings’ conduct but also according to a source gave advice to cabinet on the case.

But even if that is not true, her refusal to apologise and retract her public statement endorsing Mr Cummings’ conduct as legal is a serious ground for concern.

And making false statements about whether she had made such a public statement is incompatible with her office.

For these reasons, the appropriate step would be for the current Attorney General to now resign.

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When Virgin Care sued the NHS and how Virgin have since misdirected and misrepresented about what happened

1st May 2020

Even Richard Branson now admits it may have been “unwise” for Virgin Care to have sued the NHS.

The fact that a Virgin company once sued the NHS is no doubt inconvenient for Branson, and Virgin generally, as they seek support from the United Kingdom government during the current coronavirus emergency.

This post sets out the circumstances of the legal claim and why Virgin Care was not compelled to sue the NHS.

This post also sets out that the reported settlement amount of £2million that was paid to Virgin Care had to have been found from somewhere, presumably either from other services or through increased borrowing.

And this post sets out the systemic misrepresentations and misdirections from Virgin in seeking to cloak the inconvenient fact that Virgin Care once sued the NHS for money. 

In summary, this post avers that Virgin Care made a sequence of “unwise” decisions: to sue the National Health Service, to be party to a confidential settlement of that claim, and to have since then misrepresented and misdirected about what happened.

For even if, as Branson suggests, it was “unwise” for Virgin Care to sue the National Health Service, it would have been better if that was openly admitted to have been a cock-up, rather than a strategy based on confidentiality and misleading public relations.

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Let us start with what Richard Branson says about this in his recent open letter.

He (or a PR attributing the words to Branson) says:

“Much has been written about Virgin Care’s dispute with a commission over a contract a number of years ago. Some will say it was unwise for Virgin Care to do this, but the most important thing is that Virgin Care was never intending to profit from it and 100 per cent of the money awarded went straight back into the NHS.”

This statement is worth reading carefully.

The “a number of years ago” in fact refers to events as recent as in 2016 to 2017.

He accepts there was a “dispute” and admits “[s]ome will say that it was unwise for Virgin Care to do this” – though the “this” here is left unclear.

(The implication of the “unwise” comment seems to me to be an acceptance that Virgin Care could have done things differently, as it can hardly be “unwise” to take the only option available.  The word itself suggests there was a choice.)

Branson then sets out the defence that the money “awarded” (itself a strange word to use here, as we will see below) “went straight back into the NHS”.

Branson then earnestly assures us that this defence, together Virgin Care never “intending”(?) to profit from the dispute is “the most important thing”.

For the reasons set out below, you may take a different view as to what “the most important thing” was in all this was.

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Branson’s open letter links to a statement from Virgin Care dated 1st June 2019.

This significant statement was published by Virgin Care itself, and Virgin Care is responsible for the content and its headline.

The statement should be read carefully, not least because it was written carefully.

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Anyone clicking into the Virgin Care statement from Branson’s open letter or because they wanted to find out about the matter themselves are met with a headline set on a picture of happy smiling children.

The headline is: “Why it’s wrong to say we sued the NHS because we lost a contract in Surrey”

Note what the headline does not say: it is not simply “Why it’s wrong to say we sued the NHS”.

And the reason the headline is not “Why it’s wrong to say we sued the NHS” is by reason of the weasel words “because we lost a contract in Surrey”.

Many who come across the headline will no doubt not realise the significance of those weasel words.

Those who come across the headline may even think that Virgin Care did not even sue the National Health Service.

Weasel words can make such a difference.

The presumed intention of the weasel words is to make the headline somehow technically true.

But even with a literal construction or interpretation, the headline is misleading to the point of conveying a false impression.

For Virgin Care did sue the National Health Service, and the basis of the legal claim was that Virgin Care was not awarded a contract in Surrey.

Without the non-award of the contract, Virgin Care would not have had what lawyers call “a cause of action”.

Perhaps the chosen headline is intended to read as meaning that the real, subjective intention of Virgin Care in suing the National Health Service was to serve some selfless, noble purpose.

Or perhaps there is a verbal sleight-of-hand with “because we lost a contract in Surrey” as the claim was based on a non-award (in this case, renewal) of a contract rather than the “loss” (that is, termination) of  a contract.

Who knows.

But as a matter of law, the headline gives a false impression.

And giving such a false impression cannot be an accident.

Having considered the (in my view, deliberately) misleading headline, now let us look at what Virgin Care has (carefully) chosen to say in the rest of their very own published statement.

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The statement begins with “Much has been written and said about the procurement process which the NHS in Surrey ran back in 2016…”.

You will recall that the statement in Branson’s open letter begins in near-identical terms: “Much has been written about Virgin Care’s dispute…”.

This suggests at least a similar approach to public relations, if not the same PR.

The Virgin Care statement then asserts “A lot of what has been written is misleading or misinformed…”.

Given that the chosen headline to this statement is itself misleading, this suggests that the publisher of this statement has a rather brass neck.

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So you can understand what then follows in the Virgin Care statement, this post now will explain a couple of things about the law of public procurement.

First: the law of public procurement provides special rules for public bodies when purchasing goods, services and works: in essence, public procurement exercises should be competitive, transparent and fair, with bidders being treated equally (including any incumbents bidding again) and, if there is a breach of these special rules, the bidders adversely affected should have a legal remedy.

Second: a disappointed tenderer can, before any contract is executed, seek to have the procurement exercise suspended and/or re-run if there has been a breach of these special legal rules; and if the contract has already been executed, the disappointed tenderer can seek an award of damages as a money remedy (and sometimes other remedies) for a breach of the special legal rules.

Knowing these two things about the law of public procurement are important for understanding the predicament of Virgin Care and the options that were available to it when it did not win this particular Surrey National Health Service contract.

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The contract in question was substantial: a five year contract for providing certain children’s services to the Surrey National Health Service.

The contract was reportedly worth £82million.

Virgin Care was the incumbent, and was re-bidding to carry on providing the services.

Virgin Care thought highly of the services they had provided for the previous five years:

“Our bid was based on five years’ experience of running the services, making improvements which would make a real difference for families and taking on up to 20% additional demand each year without any additional funding from the NHS.”

Surrey National Health Service, however, took a different view and awarded the contract to another provider, who is still in place providing the services.

The loss of any public contract is a hard hit for any service provider, but that is the nature of public procurement: bidders know that there are fixed terms and a serious risk of another bidder winning at the next contest.

Virgin Care were unhappy at not being selected and sought, as is their right, feedback on why they had not been selected.

There was nothing wrong with this, and it is a sensible move for any disappointed tenderer so that future bids can be improved.

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According to Virgin Care, this feedback indicated “flaws” and raised “concerns” about the procurement exercise:

“When we asked those questions in Surrey, we became seriously concerned there may have been flaws in the process and asked the commissioners to look again at how things had been done to make sure they had picked the right provider.”

Again, there can be nothing wrong with this.

There is a question – which I have put to Virgin Care but got no answer – why Virgin Care had not identified the flaws and raised the concerns before in the procurement exercise.

And there is the question of what these flaws and concerns were – and given these were in respect of a high-value contract for children’s services to the National Health Service – there is a public interest in these flaws and concerns being open knowledge.

Virgin Care will not say what these flaws and concerns were.

There is a report that there are confidentiality and non-disclosure terms in place between Virgin Care and Surrey National Health Service, as part of the settlement of this claim.

But such agreements should not prevent the publication of information in the public interest.

There can be (in my opinion) no good reason for the alleged flaws and concerns not to be published.

After all: what about the happy and smiling children?

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Surrey National Health Service proceeded to execute the contract with the current provider.

Perhaps it was wrong for Surrey National Health Service to do this, and that the procurement exercise should have been suspended or re-run.

(If a procurement exercise is suspended, the incumbent provider often obtains an extension on its current contract.)

We do not know whether it was right or wrong for Surrey National Health Service to execute the contract, and so we should give Virgin Care the benefit of the doubt and assume that Surrey National Health Service should not have done this.

What then?

There is no question that Virgin Care could sue, like any disappointed tenderer where there has been a breach of the public procurement rules.

And the possibility of such legal claims is important for ensuring that public bodies abide with the rules.

And it may be that it was in the commercial self interest of Virgin Care to sue, despite the claim that it is not a profit making entity.

And there was probably a duty on the directors of Virgin Care to consider all their options.

But what followed was a choice.

Virgin Care chose to sue the National Health Service and to obtain a money remedy.

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Now, let us go back to the Virgin Care statement, and to two paragraphs in particular:

“The commissioners refused to discuss our concerns with us and signed a contract with their new provider. Although our ideal outcome was that the process was redone properly, and everyone had a fair opportunity to win, signing the contract meant the CCG had turned this into a claim which could only be settled with the payment of damages.

“In other words, it was the NHS commissioners who made this dispute about money.”

Insofar that once a contract had been executed with the new provider, these paragraphs set out that the only legal remedy available to Virgin Care was to sue for damages.

This is probably true (though other remedies may also have been available depending on information we do not know).

But these sentences give a false impression that Virgin Care was compelled to sue.

The National Health Service commissioners “turned this into a claim which could only be settled with the payment of damages” and “it was the NHS commissioners who made this dispute about money”.

These statements are ugly, and convey an unfortunate impression of victim-blaming: it was the National Health Service that made Virgin Care bring a legal claim, Virgin Care did not want to do it, really it did not, genuinely.

Virgin Care did not have to bring a claim, and Virgin Care could have chosen not to do so.

Virgin Care, aware of “flaws” could have brought these flaws to public attention, or made a complaint, or requested an investigation.

Virgin Care could have taken the view that any litigation would be costly for the National Health Service and that it would not be a good use of the National Health Service’s scarce resources.

Virgin Care, of course, may have had the right to sue – just as McDonald’s once had the right to sue the McLibel Two.

Virgin Care may have even had a strong case, though we do not know what the alleged flaws were.

But it was entirely a decision for Virgin Care.

And as Branson now seems to admit, an “unwise” decision was taken.

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Once the claim was brought, it appears there was a quick settlement of the legal claim, with payments reportedly totalling £2million being paid to Virgin Care.

That there was a swift settlement tells us nothing about the merits of the claim.

A public body can prudently seek to settle quickly when it faces a strong claim.

And a public body can prudently seek to settle quickly a claim with little or no merit, instead of enduring costly litigation.

We do not know the merits of the claim, despite the alleged “flaws”.

What we do know is that the reported £2million had to be found from somewhere, as it would be an amount additional to what would be paid for the contract that had been awarded.

Surrey National Heath Service would have to pay for both the services and a settlement amount on top.

Logically, the amount had to come from elsewhere in the budget (and thereby from other services.

Perhaps even services for happy smiling children.

Or it had to come form further borrowing, presumably at interest.

You may think that the National Health Service needed that money more than Virgin Care.

The defence offered by Virgin Care – and indeed by Branson – is that the £2million was given “straight back” to the National Health Service – presumably by the provision of other contracted services.

If so, this does not necessarily mean the money was given “straight back” to those same parts of the National Health Service that now had a £2million gap because of the settlement.

And you may think that the National Health Service itself was in a better position to know what to do with £2million than any external service provider exercising its selfless discretion.

You may be impressed by this defence of Branson and Virgin Care.

Or you may not be.

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What seems to have happened here is that Virgin Care “unwisely” sued Surrey National Health Service and that Branson and Virgin more widely are embarrassed by this inconvenient fact.

The adverse publicity from this legal claim certainly offsets the £2million obtained.

But what Branson and Virgin should do, in my view, is openly admit that Virgin Care cocked up by suing the National Health Service, even though it was entitled to do so.

Instead, as set out above, there has been a doubling-down.

Things are confidential which should not be confidential.

Headlines, sentences and paragraphs misdirect and misrepresent the law and the facts.

The National Health Service is made out to be to blame for a decision of Virgin Care.

All these were also decisions.

They are decisions just as “unwise” – if not more so.

Virgin Care sued the National Health Service when it did not need to do so, and since then Virgin has not been plain about what happened.

And this perhaps is “the most important thing”.

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A blunder in the amended Coronavirus regulations – how the Home Office inadvertently made the work “reasonable excuse” unclear

27th April 2020

Consider this post as something fun and instructive: an amusing example of how not to legislate, and of why rushed legislation without scrutiny is a bad thing.

Last week, as this blog set out, the government silently amended the coronavirus regulations under the pretence of “clarifying them”.

The substantial amendment to Regulation 6, which restricts freedom of movement, was such that the scope of the offence significantly widened.

The purpose of the amendment was to deal with the problem caused by the original version, where the offence was committed at the point a person left the place they were living, unless they had a “reasonable excuse”.

This had the ease of legal certainty – but it meant that if a person left a house with a “reasonable excuse” but then ceased to have such an excuse, there would be no offence directly committed.

(Such a person could be directed home and commit an offence if in breach of such a direction, but that would be indirect not direct.)

In practice, this created an evidential problem: to bring a prosecution – or to even levy a fixed penalty – there would be a requirement that it could be shown that there was no “reasonable excuse” for that person at the point of departure from where they are living.

And so to cure this problem, the lawyers at the Home Office (who are responsible for the police powers aspects of the Regulations, even though the Health Secretary is nominally the Secretary of State) had the clever idea of amending Regulation 6 with the insertion of “or be outside of” in to the offence.

The relevant offence now reads:

“During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse.”

This meant the legal and evidential difficulties of showing or otherwise being satisfied that the offence had been committed would be lessened.

But.

Oh dear.

Any lawyer can amend a single clause in a legal instrument – the experience and expertise is in being able to make the consequential changes to the rest of that instrument (and other instruments) that may be also required by that change.

This is an analogous to computer programmer knowing that a change to the code in one place necessitates changing code elsewhere.

And so, in the Regulations, the listed examples of “Reasonable Excuse” were predicated on them applying at the point of departure.

For example, the “Reasonable Excuse” at Regulation 6(2)(f) begins:

“to travel for the purposes of work or to provide voluntary or charitable services…”

The effect of the amendment is that is that while it is expressly a “Reasonable Excuse” to travel for the purposes of work, it is not expressly a “Reasonable Excuse” to actually be at work.

If the listed “Reasonable Excuses” were an exhaustive list then, taken literally and strictly, no offence would be committed while travelling for the purpose of work but it would be on arrival.

Of course, this is manifestly absurd.

And a sensible court could address this in one of two ways.

First, a court could imply into  Regulation 6(2)(f) that actually being at work would be part of the the already existing “Reasonable Excuse” regarding work.

Or, second, a court would imply that the list of “Reasonable Excuses” was non-exhaustive (and this is a safe implication, because of the word “includes” at the head of the clause) and would establish this as a new and separate “Reasonable Excuse”.

But in either case, the Court (or the officer deciding whether to impose a penalty) is having to fill the consequential gap created by the amendment.

And in both cases, the gap is being filled by necessary implication, because the express provision is now unclear.

You would think that the purpose of a “clarification” would be to clarify – to make explicit something which was otherwise implicit.

But in this case the Home Office, by seeking to “clarify” (ie, correct and change) one thing has caused a lack of clarification elsewhere.

In practice, this should not make any difference, and the implications will (one hopes) be made as necessary.

(As this post says above: treat this post as a fun instruction.) 

This is an example of what happens where legislation, such as the Regulations are rushed out and then amended covertly.

This legislation should be scrutinised and approved by parliament, not slipped out into force without such scrutiny and approval.

And then we would not need “clarifications” of unclear legislation that in turn need further clarification in turn.

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The significant extension of the Coronavirus restriction on movement – and why it is concerning

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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The extraordinary Sir Simon McDonald “clarification” – a guided tour

22nd April 2020

Yesterday a senior civil servant gave evidence to a select committee.

In that evidence was a fascinating exchange, and it is worth watching carefully.

Later that day, the civil servant sent an extraordinary “clarification”.

https://twitter.com/TomTugendhat/status/1252679936768344070

This is a guided tour of that supposed clarification letter.

One theme of this tour is that the letter is not one would expect from a senior civil servant seeking to clarify something otherwise unclear, and that the letter instead makes the situation far less clear.

The letter also appears to have had more than one author, and it appears that it is a document negotiated between the civil servant and others.

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“EU VENTILATOR PROCUREMENT SCHEME”

The letter has a title, and it is worth noting for what follows that it is about the ventilator scheme. 

“I wanted to clarify a point…”

You may think that the point that was made to the committee was clear, and that its clarity is what caused the political fuss.

(Here it is also worth considering whether the letter was entirely voluntary, or whether the civil servant had insisted on a ministerial direction to write the letter.)

“…the EU’s Ventilator procurement scheme – the Joint Procurement Agreement”

This is where the letter starts becoming (ahem) unclear.

From the title it would seem we are looking at just one of the recent procurement rounds under the joint procurement agreement.

But the addition of the text after the hyphen makes it less clear what is about to be denied in the next paragraph.

“Unfortunately, due to a misunderstanding, I inadvertently and wrongly…”

Anyone who knows about how careful senior civil servants are in drafting formal documents would at this stage affect an Alan Hansen-like face discussing some footballing defensive disaster.

Some would even say that the “due to” is a tell that someone other than the civil servant was involved in drafting this letter (more on this later).

The “misunderstanding” is not stated.

The word “inadvertently” adds nothing to the “misunderstanding” and is surplus.

The word “wrongly” is vague, because it is not clear which of the following propositions is wrong.

And we are not even half way through this sentence.

“…that Ministers were briefed by UKMIS on the EU’s Joint Procurement Agreement scheme and took a political decision not to participate in it”

Something inside this text is “wrong” but it is not clear whether it wrong in part or in full.

The insertion of “by UKMIS” is eye-catching, as it means ministers could have been briefed by others.

And the text does not say Ministers were not aware – and that would have been easier to write.

The reference to “the EU’s Joint Procurement Agreement scheme” is also not clear – the United Kingdom has been a signatory to the agreement since 2014 and is still a signatory following Brexit (now along with fellow non-members Iceland, Norway and Bosnia-Herzegovina) and so the United Kingdom was (and is) already participating in it.

And what does “political decision” mean?

Why not just “decision”?

The longer this letter goes on, the less clear it becomes.

And then the next two sentences are a cracker.

“This is incorrect.”

What is incorrect?

He has already stated something is “wrong” – but surely this is not some sly double-negative?

The preceding sentence is so jumbled and tortured it is not clear what is being negated by “This is incorrect”.

“Ministers were not briefed by our mission in Brussels…”

But could have been briefed by others.

“…about the scheme…”

Which scheme?

The ventilator procurement scheme by itself, or the joint procurement agreement scheme more generally?

“…and a political decision…”

As opposed to another sort of decision?

“…was not taken on whether or not to participate”

Why is this so specific?

Was some other decision taken?

And now we come to the third paragraph of the “clarification”, where things get even more unclear.

“The facts of the situation are as previously set out.”

Where and by whom?

“Owing to…”

So the supposed author does know better than to use “due to” earlier in the letter – hmmmmm.

“…an initial communications problem…”

This is vague in two ways – why “initial” and why no express mention of the supposed email?

A communication between whom?

Between the European Union and the United Kingdom?

Or within the United Kingdom?

“…the United Kingdom did not receive an invitation in time…”

But as part of the decision-making meetings before the procurement, the United Kingdom would have been aware of the procurements.

It would not have had to have waited until the invitation to know about them.

This would be like Mr Bean being surprised when sending himself a Christmas card.

“…to join in four joint COVID EU procurement schemes.”

Notice the subtle switch to the plural – “schemes”.

This letter starts off about the ventilator scheme, then it calls the joint procurement agreement a scheme, and now it is talking about four schemes.

Which scheme does the “political decision” in the proceeding paragraph now refer to?

“As those four initial schemes had already gone out to tender we were unable to take part.”

What does “we were unable to take part” mean here?

Is it limited to the past tense?

Can we take part now?

And how does this accord with other statements about the United Kingdom now taking part?

“The Health Secretary has set out the Government’s position on this going forward.”

The ugly “going forward” indicates that someone else was involved in the drafting of this statement – no senior civil servant would happily use such a phrase in formal correspondence.

But more generally, what does this statement mean – what is the “this” in that sentence?

“…this clarification…”

This letter is the opposite of a clarification.

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Senior civil servants are, like lawyers, wordsmiths.

A formal document, such as a letter to a select committee, should be a considered, structured and coherent composition.

But this letter is all over the place (Alan Hansen wince).

The letter is tortured and awkward, and this indicates that the letter was a negotiated document – and negotiated to the point of strangulation.

The particular sentences may be all correct, but there seems to be gaps between sentences, and other things seem cloaked (especially “scheme”/”schemes”).

The overall letter smacks of evasion and misdirection.

The civil servant’s statement was clear, and this clarification is not.

Something is up here.

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Ultra Virus – the constitutionality and legality of the Coronavirus Regulations

8th April 2020

The Coronavirus Regulations are the law of the land, and as they are the law of the land they must be obeyed, and the reason we have emergency laws is because of emergencies, and this is an emergency.

That sentence is there because there is a sense among some legal commentators that they cannot either comment critically on these regulations or even comment at all, lest some idiot takes the criticism to mean that the laws should not be obeyed.

In my view, however, such quietism and self-censorship may be more irresponsible than any constructive criticism.

At a time of emergency, the scrutiny of emergency laws is vital.

The law still needs to be obeyed when it is in force, even if there are processes for challenging it.

And so it is on this basis that this post sets out the constitutional and legal issues of the Regulations, further to previous posts on this blog (for example here and here).

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One way of critically approaching the Regulations is to look carefully at whether they accord with the parent legislation.

This is because the Regulations are secondary legislation – in this case, a statutory instrument – that only have legal effect (“vires”) to the extent that they are within the scope of the primary legislation, in this case, the Public Health Act 1984.

(Note that although the Act itself was passed in 1984, it has been heavily amended since, and so the relevant provisions for this discussion do not necessarily date back to 1984.)

At the august and influential UK Constitutional Law Blog, the outstanding legal scholar Jeff King has in two posts (here and here) setting out why he sees the Regulations as within the scope of the law.

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Others looking at the detail of the parent legislation take a different view, and they aver that the Regulations may be outside the scope of the parent Act (see here and here).

And Lord Anderson QC, the former independent reviewer of terrorism legislation and an authority on emergency legislation, has also set out his doubts, and concludes (with elegant and careful wording):

“In summary, the impact on personal liberty in Regulation 6 goes right up to the limit of what is permitted under its parent statute, and arguably beyond. An ultra vires challenge would attract strong arguments in both directions. Ultimately, however, a court which is minded to uphold it as valid has, as it seems to me, a plausible legal argument for doing so.”

In other words: there are plausible grounds that a court may quash parts of the Regulations.

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As the head of this post sets out, the Regulations are the law of the land and must be obeyed.

The Regulations (or any part of them) would, however, cease to be the law of the land if a court of competent jurisdiction quashed the Regulations (or any part of them).

The possibility of this does not mean that, in the meantime, the laws cease to have effect – it means that there is a possibility that a court may one day take a different view.

And this is the case with any secondary legislation (and with any government action or inaction).

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So if there is scope for questioning the legality of the Regulations, what can be usefully said about the constitutionality of the Regulations?

In a sense this is a difficult area, as there is no codified constitution in the United Kingdom and to say something is “unconstitutional” is often not to say anything meaningful at all.

But there is a worrying constitutional feature about the Regulations which the approaches set out above, which focus on statutory construction and interpretation, to an extent overlook.

The Regulations have not had any parliamentary scrutiny or sanction.

They were given effect after Parliament was in recess.

The Regulations restrict or remove fundamental rights, including freedom of movement and freedom of association.

The Regulations create wide-ranging criminal offences.

In the two Miller cases, the Supreme Court ruled against two attempts by the United Kingdom government to do drastic things by ministerial fiat – to take the United Kingdom out of the European Union and to close down parliament for five weeks without any reasonable basis.

In both cases the Supreme Court, rightly, decided that something that fundamental should be decided and endorsed by parliament.

In the case of the Regulations, the government could have included the provisions in the Coronavirus Act, but chose not to do so.

And the government could (and, in my view, should) have used the Civil Contingencies Act, which has several built in safeguards and a supervision regime, but again chose not to do so.

Instead, the government chose to use the Public Health Act which even commentators who say that the Regulations are lawful accept is a bit of a shoehorn.

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My view is that they very decision to use the Public Health Act, rather than primary legislation (which parliament would vote on) or the Civil Contingencies Act (which gives parliament a defined supervisory role) is a decision which can be questioned both in terms of its constitutional propriety and indeed its accordance with public law principles.

The Regulations are to be reviewed shortly, and this blog yesterday put forward some modest proposals for taking the illiberal edge off from the provisions.

But there is a more fundamental question of ensuring that legislation that removes or restricts fundamental freedoms has parliamentary (and thereby democratic) approval.

Law not only should have authority – but ultimately also legitimacy.

The Regulations convert almost all normal social behaviour into anti-social behaviour, punishable as criminal offences.

Such upheavals should have democratic sanction, just as any other upheaval like leaving the European Union or closing down parliament.

And it is not “irresponsible” to point this out – indeed, it seems to me irresponsible to pretend this is not of any urgent concern.

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