Category: Criminal Law

“Law & Order!” and law and order

1st September 2020

Here is a tweet from Donald Trump.

And now look at the date of this tweet: it is from the run-up to the 2016 presidential election.

In recent days, Trump has tweeted a number of times about ‘Law & Order!”.

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One obvious reaction would be to say that his recent demands for “Law & Order!” show that he failed to keep the commitment in his 2016 tweet.

Another obvious point is that Trump’s misuse of pardons and commutations, his non-compliance with legal requirements and so on are a negation of law, just as his stoking of violence for political ends is the negation of order.

But such ‘reply guy’ points do not really matter.

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The potency of “Law & Order!” does not depend on Trump’s record or his consistency.

What is significant about the 2016 tweet is this was how he approached the last election, with the same message as now, and it was effective.

And it may be effective again.

The fact that, in substance and in practice, Trump is not interested in either law or order is irrelevant.

“Law and Order!” has nothing to do with law and order.

It is about coercive power and about those who that power should be inflicted upon.

It is about control and it is about supremacy.

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Of course, it is easy to mock Trump, and it is easy to point out the inconsistencies and the lies.

But he has worked out a way to get power, and his opponents so far have not.

Do not underestimate him.

(Johnson and Cummings have also worked out how to get power, and their opponents also so far have not.)

Waiting for the mass of lies, absurdities and inconstancies to somehow self-implode, and thereby eject Trump (or Johnson), is not going to work.

The thing (for want of a better word) is self-sustaining: it feeds off the simple opposition that it creates.

And there is not point ‘matching’ it, as those promoting this thing are better at lies, inconsistencies and absurdities than their opponents.

The thing would have to be defeated some other way.

And that defeat must be political and electoral.

For example, looking to the courts or to special counsel investigations is wishful thinking.

Lawyers and judges are many things but they are not fairy godmothers.

(And “activist lawyers” also feed the thing.)

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Pointing out lies does not work when a sufficient number of voters do not mind being lied to.

And so the daunting task for the opponents of Trump (and Johnson) is to get enough voters to care that they are being lied to.

To care about law and order, and not “Law and Order!”.

And that ain’t going to be easy.

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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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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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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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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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How to improve the Coronavirus Regulations – some practical suggestions

6th April 2020

These are strange times, and one indication of the strangeness of these times is that a liberal and independent blog like this is posting something about how to make illiberal laws more workable.

The illiberal laws are, of course, the Coronavirus Regulations (which this blog has discussed here, here and here).

These laws, made without any parliamentary approval or debate, restrict fundamental freedoms and create wide-ranging criminal offences.

There are grounds for serious concern about the legality and constitutional validity of such legislation being made and used in this way – but, as it stands, these Regulations are the laws of the land and they should be complied with.

Putting general concerns aside, and given one should try and improve things when one can, below are some practical suggestions for improving the laws.

And this is the right moment to be making improvement suggestions, as under regulation 3(2), the government will be reviewing the regulations on 16th April 2020.

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The first suggestion is to cast regulation 6(1) as a general prohibition (and not as a direct criminal offence under regulation 9(1)(b)).

This would mean that a simple or bare breach of regulation 6(1) would not itself be a criminal offence.

There should be a seriousness requirement.

Breaching the prohibition in circumstances where one causes unreasonable risk to others (that is by breaching social distancing guidance) should be the relevant offence.

(And a breach of a reasonable direction by a police officer to return to where one lives would remain a criminal offence.)

These changes would reflect best police practice and so should not be operationally disruptive.

And the changes would reflect also that the statutory purpose of the regulations is not public order or social control, but the protection of public health.

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As well as a seriousness requirement, the Regulations should be amended so that the fixed penalty scheme under regulation 10 (which does not mean a criminal record or conviction) is not merely an option (“may’) but is instead the presumption, unless there is a compelling reason for a criminal prosecution.

And the decision to prosecute should, as these are emergency regulations, be made by the Director of Public Prosecutions, as this would ensure proper consideration of the public interest.

Criminal liability – convictions and records – can destroy peoples lives, and these further changes will ensure that criminal liability is not imposed (or threatened) lightly and casually during this emergency.

And again, the statutory purpose of the Regulations is public health, and so there should not be any criminalisation more than that is strictly necessary.

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Further highly useful changes should also be made to the “to avoid injury or illness or to escape a risk of harm” exception under regulation 6(2)(m).

It is implicit that this exception includes mental illness (and not just physical illness) and that “escape a risk of harm” would include harm from domestic violence.

But these crucial protections should be made explicit, so that vulnerable people can see that the letter of the law protects them and gives them the comfort and security that they can leave the house when required – as long as they comply with social distancing guidance.

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If there has to be emergency law (and this is an emergency) then it is important that it is as good as it can be.

Please make any further constructive suggestions below, as I understand they may be seen by those who are reviewing the law.

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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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Coronavirus laws and anxious scrutiny

1st April 2020

The Coronavirus Regulations are extraordinary in at least four ways.

First, the Regulations remove from everyone in England the fundamental rights of freedom of movement, freedom of assembly and freedom of worship, as well as severely limiting their right to conduct any business.

Second, the Regulations create under Regulation 6 a criminal offence for anyone to leave where they live without a “reasonable excuse”, and exposes anyone who breaches this prohibition to criminal liability – a criminal conviction and criminal record – as well as to the use by the police of coercive force.

The “reasonable excuses” are, in turn, so vague and ill-drafted that it is impossible for any person (or any police officer) to be certain as to whether the offence is being committed or not.

And fourth, and most remarkably, the Regulations have not yet been approved by any parliamentary vote, and nor did they have any parliamentary scrutiny.

In essence, the most illiberal laws since at least the second world war were imposed without any formal democratic sanction.

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The Regulations are in place under the Public Health Act and are for the express statutory purpose of “preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination” (section 45C(1) of the Public Health Act 1984).

As such they are emergency laws and, as there is an emergency, it is appropriate that emergency laws should be used – and nothing should gainsay that.

Yet what the laws actually say is one thing, and what police (and police social media accounts) and ministers are saying the laws say can sometimes another.

Police and ministers, of course, can and should provide guidance to people during this emergency.

The guidance and the law are, however, becoming confused – and this has the unhappy consequence that people are fearing that there will be legal sanctions for what would be lawful activity.

Every sensible person wants public health guidance to be followed.

But the suggestion has been made that it is somehow unhelpful to point out that law does not actually say what ministers and police say it says.

That we should “know what the laws are meant to mean” and give effect to the supposed “purpose”.

That we should see deficiencies in the applicable law and look the other way and not say anything critical.

(This is not caricature or exaggeration – these things have been said.)

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The correct response to such suggestions is to say “no”.

Indeed, at a time of national emergency there is a greater public interest in emergency laws being subjected to anxious scrutiny.

The discussion of the difficulties of the law is not some professional parlour game of interest only for lawyers.

To discuss law in this context is as far away from being “academic” as it can be.

If the emergency laws are deficient, or come to lack credibility, people will die.

If the emergency laws are misapplied and wrongly prosecuted, people will spend the rest of their lives blighted by a criminal conviction and a criminal record.

Lawyers and legal commentators should not thereby shy away from public discussion of emergency laws but, if they can, contribute constructively to that discussion.

And the remarkable fact that these laws have not yet had any formal democratic or parliamentary approval makes such discussions more important, not less.

**

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What the police are getting wrong about the coronavirus regulations

31st March 2020

There appears to be two things the police are getting wrong about the new Coronavirus regulations.

One of these is a broad point about the purpose of the Regulations, and the other is a legal point about the “reasonable excuses” to the restrictions on movement under Regulation 6.

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The Regulations are made under public health legislation, and not public order legislation, and this distinction is important.

The Regulations are for the statutory purpose of “preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination” (section 45C(1) of the Public Health Act 1984).

The Regulations are thereby not rules on public order as ends in themselves, but as means to an end – with that end being dealing with a contagious disease.

The current coronavirus emergency justifies emergency legislation, but the ultimate job of the legislation is to protect public health.

If the conduct of police – or of their social media accounts – discredits the emergency public health legislation, then the statutory purpose of the legislation will be frustrated.

So it is appropriate for some police actions under the Regulations, and some of their public statements, to be challenged, and even derided.

Such excesses need to be firmly checked, so as to ensure that the overall police response remains credible.

To do this is not to place civil liberties above public health – indeed, almost every civil liberty can be qualified and limited at a time of a genuine national emergency.

It is instead to ensure that public health legislation achieves its purpose.

Just as it takes one idiot to pass on the virus, it can take just one idiot police officer (or police social media manager) to discredit the laws necessary to combat the spread of the virus.

There needs to be self-restraint by both those being policed and those policing them.

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The other thing the police seem to misapprehending is the scope of the offence created under Regulation 6.

The offence expressly applies when “one leave[s] the place” where they are living, without reasonable excuse.

The offence does not expressly apply if, once you have left that place with a reasonable excuse, the reasonable excuse somehow is no longer in place.

Consider two plausible scenarios:

Person A leaves to obtain basic necessities but the shop is bare of basic necessities, and the person buys a non-essential item instead, or buys nothing at all.

Person B leaves the house to exercise but, having exercised, that person decides to relax alone in an empty field to enjoy sunlight.

On the letter of Regulation 6, neither person is committing an offence under Regulation 6(1), as both left the place where they are living with a reasonable excuse.

It may well be that, in the event a police officer directs them to go home then non-compliance with that direction would become an offence under under Regulation 8(3) and 9(3).

But at least that person has an opportunity of escaping criminal liability by either providing a reasonable excuse or (simply) complying with the direction.

What is not the case is that a person outside of where they live without a reasonable excuse is committing an offence, if they left that place with a reasonable excuse.

Some may say that it is somehow implicit in the Regulation 6(1) offence that if a person ceases to have a reasonable excuse whilst out then that person is committing an offence.

To this contention there are two responses.

First, criminal law has to be exact, so that a person potentially affected can regulate their conduct accordingly.

Second, the drafters of the Regulations could have (easily) made it an offence to be outside the home without a reasonable excuse, but they chose not to do so.

The criminal law is what the law says, not what one thinks the law should be.

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Overall the police have been placed into the position where they have wide discretion under vague law, and the police in turn are interpreting the law even more widely.

But consent and cooperation is essential, and public health law is not about imposing public order as an end in itself.

And as examples of policing in Northern Ireland and in the inner cities show, policing needs to be credible and fair to be effective.

This is because disrespect for the police and the law, like a virus, can quickly be contagious.

And at a time like this, such a contagion can be deadly.

**

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