For the current constitutional drama to have got as far as it has means that various ‘gatekeepers’ have either failed to perform their proper function or have been impotent.
By way of recap, the government of the United Kingdom is proposing to enact legislation that is deliberately intended to make it possible for ministers to make regulations that would break international and domestic law.
That the legislation is before Parliament means that the process is fairly well advanced – for presenting a Bill to Parliament is about stage seven of a process, not stage one.
The first gatekeeper would have been the head of the government legal service – the Treasury Solicitor – and we know that this is the issue over which the Treasury Solicitor has resigned.
But that resignation has made no difference: the process has continued anyway.
A second gatekeeper would have been the Cabinet Secretary, who is the guardian of the Ministerial and Civil Service Codes.
Yet, somewhat irrationally and inexplicably, the Cabinet Secretary has determined that what the Treasury Solicitor has described as breaches of law are permissible under the Codes.
So much for the civil servant gatekeepers.
Now for the politicians.
The Attorney General, who is nominally the government’s chief legal adviser, is enthusiastic about this law-breaking.
The Lord Chancellor, whose oath of office contains a commitment to the Rule of Law, has said that there are breaches of law that are ‘unacceptable’ over which he would resign, but this is not (yet) one of them.
And on the floor of the House of Commons, the Northern Ireland Secretary spoke of ‘limited and specific’ breaches of law being permissible.
So the gatekeepers of the Attorney General, the Lord Chancellor and the Cabinet generally have also permitted the the process to continue.
These gatekeepers are all checks and balances within the executive, and they usually should stand in the way of any attempt by ministers to abuse or misuse the law.
And all have failed.
So we now move on to the formal legislative process of Parliament and, if the provisions are enacted, the Courts.
And it may well be that the legislature and the judiciary are able to restrain this rogue legislation making it possible for ministers to break the law by regulations (that is, by decree).
If so, that would be an example of a working constitution.
But for this proposal to have even got to this stage, parts of the constitution have not worked.
The constitution of the United Kingdom is not codified and is reliant on checks and balances in practice that have little force other than by convention.
Only at the margins should constitutional tensions be resolved by litigation.
But what happens when the conventions do not work or are flouted?
The current constitutional drama may ultimately show, through Parliament or the courts, how the constitution works – but so far it has also show how the constitution does not work.
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In that post, there were two extraordinary facts stated that went to the current constitutional drama being serious and also novel.
The first was that a cabinet minister said to the House of Commons that the deliberate intention of the government was to break the law.
The second was that the government’s senior legal official – the Treasury Solicitor – had resigned on this issue.
These two facts indicated – perhaps demonstrated – that the current situation was significantly different from previous threats from the government to disregard the law, which have often only been briefed to the weekend media.
There were third and fourth facts which also should have been listed.
The third fact is that the government has published a Bill with the explicit power of making regulations that would break international and domestic law.
And today there is a fifth fact: the Lord Chancellor suggesting on television that a distinction can be made between ‘acceptable’ and ‘unacceptable’ breaches of the law.
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None of this – yet – constitutes a constitutional crisis.
The crisis would occur if such intended law-breaking survived parliamentary scrutiny and judicial supervision.
If such intended law-breaking did not survive parliamentary scrutiny and judicial supervision that would be checks and balances working as they should in a constitution.
But that said, this is a very different type of constitutional drama to what has gone before in Brexit, and one perhaps has to go back to the unionist threats to disregard the law before 1914 to find a historical parallel.
Of course, all this may just be politics – and there is some planned (or hoped for) political manoeuvre that the government is to execute under cover of this drama.
Such a political game does not, however, justify direct threats by the government to break the law.
Perhaps this is just a passing row, and the government u-turns this week on this proposal.
But that the government risked a constitutional crisis (as well as self-trashing its reputation as a reliable party to international agreements) will linger.
There will be an impact.
And so even if this extraordinary situation is now brought quickly to a halt, what this has created cannot end well.
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This has been an eventful week for law and policy – and for breaches of law and for a lack of a policy.
The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.
This was not a slip of the tongue.
Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.
No: law-breaking was now a considered government policy.
It was a quite remarkable moment.
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That this was now a formal government position was then demonstrated by two other events.
First, the government’s senior legal official – the Treasury Solicitor – resigned on this issue (and my Financial Times post on this significant resignation is here).
Second, the government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.
These two events show that the government’s proposal for law-breaking is not a sudden or improvised development.
A lot of time, effort and resources has gone into this.
The resignation of the Treasury Solicitor appears to have been after a number of Whitehall exchanges involving ministers, officials and government lawyers, as well as external counsel.
Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.
This proposal has been a long time in the making.
We all only got to know about it this week.
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Any constitutional crisis – potential or otherwise – exists on two planes.
The first is the plane of high constitutional principle.
Here the most relevant constitutional principle is that of the Rule of Law.
Put simply the principle here can be articulated as: the government is not above or beyond the law.
The government’s proposal may also raise (or will soon raise) constitutional issues such as the relationship between the two Houses of Parliament (if it is voted down by the Lords), the Irish border and the position of Northern Ireland, and the situation of the devolved administrations.
These constitutional matters are broad and could be relevant regardless of the detail of the proposals – whether the policy in question was about terrorism or agriculture.
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The second plane is that of policy.
What is the policy objective that the government is seeking to achieve that, in turn, raises such constitutional concerns?
Here something does not make a great deal of obvious sense.
The purported concern is about the state aid regime on the island of Ireland after the end of the Brexit transition period on 31st December 2020.
I explain some of the detail of this purported concern on this video for the Financial Times.
There are two reasons why this being the cause of this potential constitutional crisis does not add up.
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First, there are other ways the government could address their apparent concerns about state aid and Ireland following Brexit.
For example, the government could have a post-Brexit state aid policy that it could discuss with the European Union in a sensible and mature manner, and both sides could then agree how to deal with any conflicts with the withdrawal agreement and the Irish Protocol it contains.
So whatever the ultimate cause of this potential constitutional crisis, it is not (and cannot be) any concrete policy differences on state aid and Ireland – because the United Kingdom government does not (yet) have a concrete policy on state aid and Ireland.
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Second, the provision in the withdrawal agreement which the government asserts is the problem – Article 10 of the Irish Protocol – is something this very government negotiated and agreed to itself.
The government would have known the effect of what it was agreeing to – before signature the government legal service would have explained to ministers all the provisions in the withdrawal agreement.
And not only did the current government agree the withdrawal agreement, it campaigned at the December 2019 general election on the basis of putting this ‘oven-ready’ agreement into effect.
And the withdrawal agreement was indeed swiftly passed into law by an Act in the days before the United Kingdom formally left the European Union on 31 January 2020.
In essence: the withdrawal agreement was something this government negotiated, signed, boasted of, campaigned on, received a mandate for, and passed into domestic law.
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And now the same government wants to break that same withdrawal agreement, less than a year after it was agreed and signed.
The problems with this are, for anyone other than the most partisan supporters of the government, stark and serious.
No other country will take the United Kingdom seriously in any international agreements again.
No other country will care if the United Kingdom ever avers that international laws are breached.
It is a stunning self-trashing of the United Kingdom’s place in the world.
And domestically the predicament is much the same.
Who will take seriously the government’s insistence on abiding by the law if the government itself openly has law-breaking as public policy?
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I love and enjoy watching and commenting on any constitutional drama
But usually the constitutional drama makes some sort of sense.
Here there seems a deep mismatch – a disconnect – between the potential constitutional crisis and the underlying policy problem.
The United Kingdom does not (yet) have a post-Brexit state aid policy, and with open eyes it agreed to the Irish Protocol less than a year ago.
The problems, if any, with state aid in Ireland after 1 January 2021 do not require the United Kingdom government to propose and legislate for, in September 2020, a deliberate policy of law-breaking.
There is no rational explanation for what the government is doing.
And if there is no rational explanation then that leaves fanaticism, cynicism, conspiracy and/or idiocy.
Each of these are possible – either alone or in combination – but the lack of any genuine policy basis for risking a constitutional crisis, let alone forcing one, makes this a very strange constitutional drama.
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This, however, is not yet a constitutional crisis.
There is every likelihood that the tensions here will be resolved by the government u-turning or being defeated during the Bill’s passage through Parliament.
If enacted, then the Courts may find a legal basis for limiting the use of the regulations made under the Act.
That would be the constitution working.
We are not at the ugly stage where a government minister is actually making a regulation that would break the law and there was no way of stopping this.
That would certainly be a crisis, by which I mean as serious and unpredictable situation where there is no obvious resolution – a constitutional contradiction rather than a tension.
A government deliberately breaking the law would create such a situation – and nobody can know what would happen next.
So this is still a potential constitutional crisis, not an actual one.
But it is an extraordinary and spectacular potential constitutional crisis.
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ps Title amended to add ‘Part I’ on 13 September 2020
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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.
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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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 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.)
“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.
“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 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.
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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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.
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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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.
“[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).
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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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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Thank you for visiting this independent law and policy blog.
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.
You can subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
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Comments are welcome but pre-moderated, and so comments will not be published if irksome.