Category: Courts and Politics

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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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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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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What is the Bindmans challenge to the Coronavirus government guidance about?

3rd April 2020

The law firm Bindmans are bringing a challenge to the government guidance that a person can only leave where they live once a day for exercise and that exercise should be local.

If just reading of such a challenge means you have already formed A Strong Opinion that you now want to type, then this really is not the blogpost for you: other websites are available, and your comment below the line here will not be published.

This post instead sets out the problem and the applicable law, so that you can form a view based on the available information and the applicable law.

As a preliminary point, please note that this is a legal challenge to government guidance – and not to the Coronavirus Regulations themselves.

Formal government guidance – in effect, policy – can be challenged (in general terms) at the High Court if it is contrary to the law, or is unfair, or is disproportionate in its impact.

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According to Bindmans, the relevant facts are as follows:

“[There are] two families with children with autistic spectrum disorder whose conditions necessitate them leaving the house more than once day for their own well-being.

“One child in particular is deliberately taken to a quiet location that is not local to them, because of their particular needs and where there is a far more limited risk of infection than if he were to remain in an urban environment.”

Bindmans then explain the problem:

“The requirement that everyone is now only able to leave once a day (and can only travel locally) makes it very difficult for these families to be able to manage their children’s high needs and promote their well-being, during a time when lots of disabled people are simultaneously struggling with reduced support from external agencies.  

“Keeping them in urban environments also increases the risk of infection of them and others given they are unable to understand social distancing rules.”

Any sensible person reading this would accept that this is a practical problem and, in such circumstances, the parents should be able to take their child to a quiet location.

There would be no direct public health problems in doing so, and the families would comply with the guidance on social distancing – indeed the child is less likely to infect or be infected.

But a sensible view is one thing, what is the legal case?

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Again, the legal challenge is to the guidance not the Regulations.

The guidance is being challenged because, if interpreted and applied by the police to the Regulations, it could lead to the parents facing criminal liability under the Coronavirus Regulations.

What the parents seek to do is, on the face of it, permitted under the letter of the Coronavirus Regulations – but if the police construe the Regulations in accordance with the government guidance then fixed penalty notices, prosecutions, fines, criminal convictions and criminal records could follow.

The solicitors aver that the guidance disproportionately affect fundamental rights :

“The social distancing measures being put in place by Government are clearly important, but they cannot be used to disproportionately interfere in the rights of those with protected characteristics, particularly those with mental illness, autism or similar conditions that necessitate leaving the house more than once per day. 

“Such rights can clearly co-exist with the health measures being put in place and Parliament clearly did not think it necessary to impose the once per day restriction arbitrarily introduced by the Government. 

“It is essential the Government needs to rethink this restrictive policy and allow appropriate flexibility where it is necessary and justified.”

The main legal basis of the challenge seems to be that the guidance contradicts the protections of the Equality Act 2010 (as well as under the Human Rights Act 1998).

Relevant here is that the mental health is a protected characteristic under the Equality Act.

A person protected characteristic has legal protection against direct and indirect discrimination (and the discrimination here would be indirect).

Any such discrimination then is subject to the four stage test under section 19(2) of the Equality Act.  

In particular, are those who are disabled (the term in the statute) placed at a  disadvantage?

There can be no doubt of this.

And so does the guidance go further than is necessary to protect the relevant public policy goal, that here would be the protection of public health in the current coronavirus emergency?

In my view, the guidance is disproportionate in two ways.

First, as long as the affected families comply with social distancing measures, then the public policy goal is unaffected.

And second, there does not need a complete change to the guidance to address this problem, just a further exception for those with relevant physical and mental health issues so they are able to take more exercise and to be travel further than their locality, when necessary.

Such a modified approach would still comply with the Coronavirus Regulations, and it would not affect the position of the greater number of people.

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The government is expected to respond today or tomorrow, and it may be that the government modifies its guidance to address these concerns.

But if the government does not shift its position then the next step would be a formal legal challenge.

The current emergency does not mean that the law of the land has been jettisoned – the EqualityAct and other laws are still in force – and there is certainly nothing wrong with the government being held to account by the courts at this time.

And if those protected by the Equality Act are facing practical discrimination that goes further than the goal of dealing with the current public health emergency, then it is right that their legal rights be protected and enforced.

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