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 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).
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).
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)).
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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