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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Comments are welcome but pre-moderated, and so comments will not be published if irksome. 

The extraordinary legal situation of the Coronavirus lock-down

30th March 2020

There is a public health emergency in England as there is in the rest of the world, and so it is essential that emergency public health laws be in place.

Nothing should gainsay that simple proposition, and nothing in this post should be taken as opposing the imposition of public health law in the current emergency.

That is why emergency public health laws exist.

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Yet, we should take a moment to reflect the extraordinary legal situation that we are now in.

Three fundamental freedoms – freedom of movement, freedom of association and freedom of worship – have all been abolished for six months by a statutory instrument which has been neither scrutinised nor voted on by members of parliament.

The freedom to conduct business or be self-employed also has been either severely curtailed or effectively removed by the same means.

Under Regulation 6(1), it is even now a criminal offence to leave your own home, unless (in effect) the police are satisfied you have a reasonable excuse.

The whole country is thereby (in effect) under house arrest.

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The police, in turn, have been given wide powers to enforce these regulations, including the use of coercive force.

And in turn, again, the police are interpreting these wide powers even more widely, with roadblocks, drones, and a made-up restriction on “essential travel”.

The police are also encouraging people to snitch on each other.

On social media there are accusation and counter-accusation, as neighbours turn on each other.

People are afraid of the police, and increasingly of each other.

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Those with mental health problems, and those in abusive households, are being made to feel that the law means that they have to stay inside.

This is actually not the case at law.

The Regulations provides scope for leaving the house for such important reasons.

One can hardly dare imagine what is now happening behind closed doors, with vulnerable people believing (wrongly) that the law prevents them escaping.

And one must dread the real consequences of this.

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And all this is on top of the fact that all electronic means of us communicating each other are – in principle – subject to interception and surveillance laws.

This means that everything being communicated between citizens – is in principle – open to the government to monitor.

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If it were not for this public health emergency, this situation would be the legal dream of the worst modern tyrant.

Everybody under control, every social movement or association prohibited, every electronic communication subject to surveillance.

This would be an unthinkable legal situation for any free society.

Of course, the public health emergency takes absolute priority.

But we also should not be blind to the costs.

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If you value this free-to-read and independent legal and policy commentary, including on the emergency coronavirus laws and on Brexit, you can support this blog and my Twitter account by becoming a Patreon subscriber.

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Comments are welcome but pre-moderated, and so comments will not be published if irksome. 

The Coronavirus restrictions on freedom of movement – a guided tour

27th March 2020

This post provides a guided tour of the restrictions on freedom of movement introduced yesterday under emergency coronavirus legislation.

The restrictions were introduced by Regulations, and the Regulations are published here (and in pdf form here).

The Regulations apply to England, and there will be similar provisions for Scotland, Wales and Northern Ireland – this guided tour is only of the English provisions.

This post first sets out a summary of the law and then a commentary – I have made this law/commentary distinction so that my comments are not mistaken for an exposition of the law.

And although I usually do not give a disclaimer, I will on this occasion: this post is not legal advice but general guidance.

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THE LAW

The Legal Framework

The new laws are officially called The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.

These Regulations are made under the Public Health (Control of Disease) Act 1984.  

This 1984 Act – which has been heavily amended in the years since its enactment – provides wide powers for the Secretary of State for Health in the event of, among other things, the control of contagious diseases, such as coronavirus.

That the Regulations are made under the 1984 Act is legally significant.

If the Regulations are outside the scope of the 1984 Act then, in principle, the High Court can quash the Regulations, in addition to quashing any direction made under the Regulations by the Health Secretary.

The Regulations also have not had any scrutiny or approval by parliament, and they have been made under the 1984 Act’s emergency procedure (section 45R) – this means that parliament has to now approve the Regulations within 28 days.

The Regulations had immediate effect, as of 1pm yesterday, 26th March 2020.

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 1984 Act).

(The Regulations are also under those provisions of the 1984 Act that expressly allow the Health Secretary to make regulations by statutory instrument (section 45P of the 1984 Act) and to create criminal offences and to make and enforce restrictions and to impose requirements (sections 45C(3)(c) and (d) and 45F(2) of the 1984 Act).)

The 1984 Act allows – and is intended to allow – the Health Secretary wide powers to deal with a public health emergency – but the powers must only be used in respect of that emergency.

(And please note the Regulations are made by the Health Secretary under public health legislation – and not by the Home Secretary, despite her claim yesterday).

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Duration

On the assumption that the Regulations get parliamentary approval within 28 days, the long-stop date for their expiry is in six months’ time (Regulation 12).

The Regulations are intended to last as long as the “emergency period” (Regulation 3(1)) that is deemed to have started yesterday (26th March 2020) and it is the Health Secretary who decides when that ends .

The Health Secretary, however, is obliged to keep the need for the restrictions and requirements under review at least every 21 days, with the first review being carried out on 16 April (Regulation 3(2)).

If the Health Secretary considers any restrictions or requirements are no longer needed, then that restriction or requirement can be terminated (Regulation 3(3)).

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The Prohibition on Freedom of Movement

The primary prohibition on freedom of movement is under Regulation 6.

Regulation 6(1) provides the general prohibition that during the emergency period “no person may leave the place where they are living without reasonable excuse”.

The only exception to this general prohibition is, in any circumstances, that you have a “reasonable excuse”.

The term “reasonable excuse” is not defined, but there is a non-exhaustive list of thirteen examples.

Each of these listed examples is subject to a test of necessity (because of the word “need” at the head of the regulation) – and this probably means that any other reasonable excuse would also have to be necessary.

There is no express limit on how often any of these excuses may be used on any day (contrary to the Prime Minister’s earlier statement that exercise or essential shops will be limited to once a day) – though frequency would be part of the twin tests of reasonableness and necessity.

Some of the excuses are vague.

For example, the excuse of “exercise” (Regulation 6(2)(b)) does not define what this general term means.

The excuse of obtaining necessities (Regulation 6(2)(a)) does not explain what is meant by “basic necessities” as opposed to “necessities” (and perhaps the person drafting this provision had the Jungle Book song in their head).

The same excuse also uses the tautology of “need…to obtain…necessities” which perhaps indicates the rushed speed of the drafting process.

There are however some welcome provisions.

Regulation 6(2)(m) provides that it is a reasonable excuse to “avoid injury or illness or to escape the risk of harm”.

This is a low threshold – you do not need to show you are escaping harm, just the risk of it.

And there is no reason why Regulation 6(2)(m) should not apply to mental illness or risk of harm, which means it can be relied on by those needing to leave where they live for mental health reasons.

It will be for you, however, to show that you have a reasonable excuse and a failure to do so will mean you are committing a criminal offence.

(Note this general prohibition expressly does not apply to the “homeless” (Regulation 6(4)), although homeless is not a defined term.)

 

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The Criminal Offences

If you breach the prohibition then you will be committing a criminal offence (Regulation 9(1)).  

There are also offences of obstruction and of contravening directions Regulation 9(2) and (3).

The punishment for these offences will be a fine at the magistrates’ court Regulation 9(4).

In essence: if you breach the prohibition – either without any excuse or if your excuse fails the twin tests of necessity and reasonableness – then, in principle, you will receive a criminal conviction and a criminal record.

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The severity of the potential criminal sanctions is mitigated to an extent by a regime of Fixed Penalty Notices under Regulation 10.

It is important to note that these Notices only “may” be issued – there is no obligation that you would be offered the opportunity of a Notice instead of a prosecution.

If a Notice is issued then you can avoid any potential criminal liability by payment of a fine of £60 (or £30 if paid in 14 days).

If you are accused by a police officer of breaching the prohibition and you believe this accusation is unfair then you face the dilemma of either paying the fine or, as the police like to put it, “having your day in court”.

It is not yet clear whether payment of these fines, or the issue of Notices, would be on any extended criminal records check.

These Notices thereby place considerable practical discretion and power in the hands of police officers (which also include here community support police officers).

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Coercion

The prohibition can also be enforced by the police by directing or removing a person to the place where they live (Regulation 8(3)).

In removing a person, the police are expressly allowed to use “reasonable force” (Regulation 8(4)).

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COMMENTARY

These provisions – which are alongside prohibitions on freedom of assembly, freedom of worship and freedom to conduct business – are the most illiberal laws imposed in England since at least the second world war.

The laws have not had any parliamentary debate or approval, they impose a form of (in effect) house arrest, create wide offences, and they hand immense power to police officers.

All this is justified – there is a public health emergency, and the powers under the 1984 Act exist for just this sort of emergency.

The main problem is that the illiberal provisions are subject to vague exceptions, and this is a worrying combination at a time of an emergency.

This problem is mitigated but not eliminated by the Fixed Penalty Regime, when the police choose to use it.

And it is a relief that the Regulations as a whole (and ministerial directions made under them) are subject to potential challenge at the High Court.

But in practical terms, there is considerable scope for these provisions to be misused by police officers, with almost no practical safeguards.

Measures like this, in addition to being tough, need to be credible.

Misuse of these emergency powers will make the regime less credible, thereby undermining the very public health purpose that the Regulations are there to achieve.

Just as it takes one person being idiotic to spread this disease, it takes only one police officer being idiotic to discredit this emergency public health regime.

There needs to be self-restraint on all sides

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Thank you for visiting this independent law and policy blog.

If you value this free-to-read and independent constitutional, legal and policy commentary, including on the emergency coronavirus laws and on Brexit, you can follow and support this blog and my Twitter account by becoming a Patreon subscriber.

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Comments are welcome but pre-moderated, and so comments will not be published if irksome.