Legislation and Law-Making – Page 19 – The Law and Policy Blog

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.

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.

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.

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.

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.

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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.

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.

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.

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.

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.

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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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.

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 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).

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)).

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.)

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.

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).

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)).

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

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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Thinking about emergency legislation

22nd March 2020

The current coronavirus pandemic is a public health emergency and, as with any emergency, there can be the need for emergency legislation.

By definition, there is not often the need for emergency legislation (or, at least, there should not be), and so emergency legislation is not something that often needs to be considered.

Now in the United Kingdom the government is bringing forward emergency legislation.

There is a bill before parliament that will be enacted in days.

And yesterday there was a statutory instrument issued under public health legislation.

Both instruments raise particular issues, but rather than dealing with the detail of the provisions, this post asks what can be usefully said about emergency legislation generally.

Emergency legislation is, of itself, a good thing.

This may seem trite and obvious, but the existence of emergency legislation means that those responsible for dealing with an emergency are doing so in accordance with the rule of law.

Emergency legislation means that even though there are exceptional and dangerous challenges, the government is still wanting to place their actions on a lawful basis.

And by doing so, it means in turn that in principle those adversely affected by the legislation have (or should have) the ability to challenge decisions made under it – though in practice this may well be difficult.

There may be an emergency, but (at least in theory) the rule of law is still in place.

Emergency legislation, however, should be exceptional.

This means that once the emergency is over then the legislation should lapse.

It also means that the legislation should not be used for purposes other than dealing with the emergency.

A genuine fear is that emergency legislation, once enacted, is too convenient for a government to then let go.

And for the executive-minded, any emergency – whether regarding terrorism, public health or anything else – can be the pretext for an executive power grab.

Never let a good crisis go to waste, as the saying goes.

But the prospect that the emergency powers can be abused is not a reason for the powers not to granted for their proper purpose.

(The “thin end of the wedge” argument is often a substitute for thought.)

Emergency powers need to be time-limited and subject to judicial review and democratic supervision.

Most importantly, emergency legislation also has to be useful.

All because there is an emergency, it does not necessarily follow there is a need for emergency legislation.

The executive already has wide legal powers.

There are already many public health and related statutes.

There is always the risk of a “something must be done” sentiment meaning that emergency legislation is enacted just because something needs to be seen to be done – like an assertion of political virility.

Every piece of emergency legislation should make a difference and be relevant to the emergency faced, as well as going no further than required or lasting longer than is needed.

In other words: emergency legislation should always be necessary and proportionate.

In technical terms, much emergency legislation falls into two categories:

– first, to provide a legal basis for the government to do a particular thing that it would otherwise not be able to do at law; and

– second, to remove a legal restriction that would otherwise mean the government cannot do a particular thing at law.

In both situations, the legal status quo may be there for a reason – that parliament and the courts have provided for settled legal arrangements for what can and cannot happen in usual, happier, non-emergency times.

Emergency legislation is thereby a sudden interruption to these settled legal arrangements, for a specific urgent reason.

So when you look at a piece of legislation, you can see clauses that suspend some legal powers and clauses that create other legal powers.

But in both cases the three questions to be asked are the same:

– is that change necessary for the purpose of the particular emergency?

– does that change go further (and last longer) than necessary for this particular emergency?

– what are the safeguards against abuse?

That the government is bringing forward emergency legislation to deal with an emergency is to be welcomed – for that is why emergency laws exist or should exist.

And a government seeking to enact such legislation should have nothing to fear from anxious scrutiny.

But if there are genuine concerns that the laws are not necessary, or go further or last longer than required, or do not have safeguards against abuse, then those concerns should not be shouted down with “don’t you know there is a virus (or a war) on”.

Emergency legislation is for emergencies only – and proper scrutiny, like the rule of law, should never be suspended.

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Brexit: the end of the beginning

2nd March 2020

If Brexit were a boxset, we are now about the start of season two.

The first season, of course, had a story of its own: a referendum that did not need to be held, leading to a result that was not expected (or anticipated), resulting in a departure on withdrawal terms few positively wanted.

(It is difficult to think that we are still within what would have been the five-year term of the 2015 parliament, where David Cameron had a good Commons majority elected on a manifesto that included a commitment that the United Kingdom be at the heart of the European Union single market.)

Now the United Kingdom is outside the European Union (let alone the single market) as a matter of law, even if the terms of the withdrawal agreement will make it a Brexit in name only until (at least) the end of this year.

Certain elements of the withdrawal agreement – on citizenship, financial contributions, and on a range of technical matters – will endure beyond the transition period.

Accordingly the threat of “no deal” at the end of this transition period is not as drastic as it would have been had there been no deal for the departure itself.

The scope of issues to be agreed (or at least capable of being agreed) is narrower than before the withdrawal agreement.

What is now to be negotiated (or not) is the future relationship beyond the end of the transition agreement.

One way of following this is by the heady heated excitement of political commentary, where one can form two different views a day (or an hour, if you are on Twitter) on any relevant issue.

And the politics of Brexit are crucial – it is only by understanding the politics of Brexit that you will understand why otherwise incomprehensible decisions are taken and daft unsustainable positions adopted.

But politics is not the only way of understanding Brexit – and a politics-only approach is itself limited and will miss many things.

For along with the pomp and propaganda, there is process.

And the process is about arriving (if possible) at an agreed text.

And a process which is intended to end with an agreed text tends, if the parties are taking it seriously, with a number of preliminary texts.

And it is by having regard to the texts and the process that one can (often) understand where Brexit is going and not going.

Again – form and structure are not everything – but they can provide the situations against which politicians and the media then react.

The two key texts for this negotiation are the negotiation guidelines of the European Union and the United Kingdom’s Command Paper on the those negotiations.

Of course, these are opening positions – but this does not mean they are trivial and can be dismissed.

On the European Union side especially, thought will have gone into what they want to achieve in the final text, and the guidelines will have been compiled by thinking backwards from what they want to achieve with that final text.

And in respect of the withdrawal agreement, early texts of the European Union can be seen as leading directly to final positions.

Remember: this is not the European Union’s first rodeo: they have the valuable experience of negotiations over Grexit, and of association agreements and free trade agreements.

This does not mean they are always right, or that that they will prevail, but to the extent that experience provides an advantage, the European Union will have the benefit.

Against this process-minded approach, there will be the temptation for those supporting the United Kingdom government to adopt again the bluster and silliness that was a feature of the exit negotiations.

Given the membership of the cabinet, that is a real risk.

So it is a relief that the United Kingdom’s Command Paper on the upcoming negotiations is a serious and not a silly document.

And with the two parties prepared (if unevenly) for the negotiations, and as both parties want an agreement (if possible), the second season of the Brexit boxset can begin.

It may well be that the second season will be yet more exciting (and scary) then the first season – but at least we (and the parties) will be ware of how the first season went.

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