Thursday, 23rd April 2020

Ignorantia juris non excusat is the legal principle that ignorance of the law excuses not. In relation to the coronavirus lockdown the law appears to be uncertain in the minds of both the public and members of the enforcement agencies. Why?

We have, since early March 2020, been bombarded by a public information broadcast featuring Chief Medical Officer Chris Whitty.

Within this broadcast he says, “To help save lives stay at home. Anyone may spread coronavirus. You should only go out when absolutely necessary for food, medicine, work or exercise. Always try to stay two metres apart. Do not meet others outside your household — even friends and family.”

The public has been repeatedly told to heed official advice and policy guidelines. These policy guidelines (Coronavirus (COVID-19): what you need to do) were first published on 23 March and updated on 29 March 2020.

The guidance closes certain businesses and public venues, instructs citizens to stay at home except for limited purposes, introduces guidance for the social isolation for those exhibiting coronavirus symptoms, introduces social distancing of two metres and prevents public gatherings. Every citizen is instructed to comply with the guidelines which were not law at the time they were first published.

As of today these public broadcasts have not been modified to advise viewers that many, but not all, of the measures contained within the original guidelines have since crystallised into legislation. But is the legislation itself consistent across the four countries of the United Kingdom?

The Legal Basis for the lockdown in England

The relevant legislation may be found within the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. These regulations were made without a draft having been laid before, and approved by a resolution of, each House of Parliament by virtue of Section 45R of the Public Health (Control of Disease) Act (1985).

The Regulations contain a declaration that the person making them is of the opinion that, by reason of urgency, it is necessary to make the order without a draft being so laid and approved, thereby triggering the Section 45R exemption.

The restrictions contained within these Regulations came into force at 1:00pm on 26 March 2020 and expire at the end of the period of six months later.

Regulation 3 (2) places a duty on the Secretary of State for Health to review the ongoing need for any restrictions or requirements imposed by the Regulations at least once every 21 days with the first such review taking place by 16 April 2020.

It was subsequently announced that the regulations would remain in force for at least another 21 days.

Regulation 3 (3) & (4) grants power to the Secretary of State for Health to “publish a direction terminating the restriction or requirement if he is satisfied that any restrictions are no longer necessary to 'prevent, protect against' control or provide a public health response to the incidence of spread of infection in England with the coronavirus.” The Regulations have the following effects:

The Closure of Certain Businesses

Regulations 4 and 5 contain measures concerning the closure and restriction of businesses in the tourism, leisure and hospitality sectors. For example, Part 1 of Schedule 2 requires the closure of restaurants, cafes, bars and public houses selling food or drink except for consumption off the premises.

Part 2 of Schedule 2 lists businesses such as cinemas, nightclubs, leisure centers and swimming pools.

Part 3 of Schedule 2 allows a limited number of specified businesses such as food retailers; pharmacies; homeware, building supplies and hardware stores; funeral directors and banks to continue trading. It also contains provisions for other businesses which offer goods for sale through a website or mail order to continue fulfilling their orders.

Restrictions on Movement of the Individual

The restrictions on individual movement are contained within Regulation 6(1), which says "During the emergency period, no person may leave the place where they are living without reasonable excuse."

Regulation 6 (2) (a-m) provides a list of reasonable excuses which includes:

a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2;

b) to take exercise either alone or with other members of their household;

c) to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of Schedule 2;

Other reasonable excuses include, but are not limited to, donating blood; to fulfil a legal obligation; banking; to attend a funeral and to access critical public services.

The regulations are silent as to the length of time you can leave the place where you are living or how far you can travel before commencing your daily exercise. It does seem bizarre to us that some enforcement agencies are even claiming that the purchase of materials to repair a garden fence is lawful whilst the purchase of paint to decorate your home is a 'non-essential' purchase.

Regulation 7 introduces a restriction on gatherings of more than two people in a public place except under limited circumstances.

Non-compliance with Regulations

In cases of non-compliance it has been suggested by some that the police could issue a fine. This is incorrect. Enforcement mechanisms are specified in Regulation 8, where persons breaching regulations restricting movement from the place where they are living, or attending gatherings without reasonable excuse, could find themselves served with a Fixed Penalty Notice of £60, reducing to £30 if paid within 14 days, the penalty charge doubling for each repeat offence, up to a maximum of £960. If a penalty charge is paid within the time limits there is no need for an appearance in court where, a fine could be imposed.

Examples of Over-Zealous Police Enforcement of these Regulations

For the purpose of this discussion we will look at just four examples. Our first example concerns a video which went viral on social media. It showed a South Yorkshire police officer telling a family that they should not play with their young children in their front garden. The officer is clearly heard saying 'You do not want your children getting the virus, it does not stop in front of your garden.' The obvious question to ask is: Does a front garden form part of a place where a person is living?

It clearly does: Regulation 6 (3) specifies that "the place where a person is living includes the premises where they live together with any garden, yard, passage, stair, garage, outhouse or other appurtenance of such premises." It is unfortunate that the police officer had obviously failed to read and understand the regulations that she was seeking to enforce.

We believe it to be both ironic and unacceptable to human decency that South Yorkshire Police, which sought to prevent an activity which is not unlawful under these regulations, is the very same force that failed to take action to stop the long-term grooming and sexual exploitation of young children in Rotherham.

Our second example relates to a video appeal by Chief Constable Nick Adderley of Northamptonshire Police in which he says, “We will not at this stage be starting to marshal supermarkets and checking the items in baskets and trolleys to see whether it is a legitimate and necessary item. But again, be under no illusion that if people do not heed the warnings and the pleas I am making today we will start to do that.”

We find it more than disappointing that this Chief Constable also failed to familiarise himself with the regulations. Had he done so, he would have recognised that this threat had absolutely no basis in law whatsoever.

In our third example, Peter Goodman, Chief Constable of Derbyshire Police, said his force did not go too far enforcing the lockdown after officers used drones to stalk hill walkers and dyed a lagoon black.

The drone unit had targeted dog walkers who drove to an isolated part of the Peak District prior to taking their exercise.

As we have already seen, the relevant regulations are silent as to the form of exercise taken and certainly do not ban travel to a countryside location.

Our final example is perhaps the most extreme. On Thursday 17 April a hospital doctor filmed a large gathering of people on Westminster Bridge during a 'clap for carers' publicity stunt.

Not only had the police organised the event, they, together with Metropolitan Police Commissioner Cressida Dick, attended in large numbers, with many police officers being seen standing shoulder to shoulder.

This attracted considerable public criticism on social media, with many questioning why the public were not obeying social distancing rules. Whilst the social distancing rules themselves are solely advisory, being found only in the Government published guidelines and not being included in the Regulations, the Regulations do contain a provision restricting public gatherings.

The limited exemptions mentioned in the Regulations do not cover mass public attendance at an event of this type and neither do they grant exemption to police or other Emergency services — unless they are providing 'emergency assistance'.

The Common Law, Civil Law and the Rule of Law

One of the characteristics of the Continental civil law system, often referred to as Roman law, is that it is founded on the ideology that human beings are best controlled under the guidance of a wise state run by experts.

Under this ideology, the rights of the individual become secondary to calculations about what is "best" for the "common good".

In contrast, in common law systems of governance the laws governing the actions of the individual are more usually formulated following input from elected representatives of the people.

Aren't we presently experiencing a taste of the alien civil-law system of governance, with government ministers insisting that, on the question of when to relax the present lockdown, they are guided by the scientific experts at SAGE (The Scientific Advisory Group for Emergencies)? What is Parliament's role?

Unlike the European continent where, under civil law, the accused is presumed guilty and must prove his own innocence, and everything is prohibited unless it is permitted by law, in England the common law default position is the exact opposite.

It has has long been recognised that the accused is innocent until proven guilty and “the state may do nothing except that which is permitted by law whilst the individual may do anything but that which is forbidden by law.” See the landmark case of Entick v Carrington [1765]. The Entick case is also famous for the dictum of Lord Camden, who stated “If it is law, it will be found in our books. If it not to be found there, it is not law.”

In common law jurisdictions, such as the United Kingdom, the rule of law is the long-standing principle of how the region is governed, which is consequential on the Magna Carta 1215 and the Bill of Rights 1689.

It was in 1885 that jurist and constitutional theorist AV Dicey gave us the classic definition of the rule of law in his book 'Introduction to the Study of the Law of the Constitution'.

According to Dicey, the rule of law meant that “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.”

He also said that when we speak of the "rule of law”, we mean not only that no man is above the law, but that every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

In 2020, are we all still equal under the law, or have the lockdown measures led to differing laws in the devolved regions of the United Kingdom?

In England, the Westminster Bridge 'clap for carers' event suggests to us that that the rule of law is being deliberately trodden underfoot.

The Legal Basis for the Lockdown in Wales

The relevant law in Wales can be found within the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020. Although these regulations have broadly the same effects as their English counterparts, we highlight below some obvious differences.

Regulation 6 (1) is directed to those businesses that are able to continue trading during the "emergency period", such as food retailers, pharmacies, off-licences etc. It states that the person responsible for carrying out the business must:

(a) take all reasonable measures to ensure that a distance of 2 metres is maintained between any persons on the business premises (except between two members of the same household, or a carer and the person assisted by the carer),

(b) take all reasonable measures to ensure that persons are only admitted to the business premises in sufficiently small numbers to make it possible to maintain that distance, and

(c) take all reasonable measures to ensure that a distance of 2 metres is maintained between persons waiting to enter the business premises (except between two members of the same household, or a carer and the person assisted by the carer)

Regulation 9 (1) places a duty on local authorities, the National Park Authority in Wales, National Resources Wales or the National Trust to close public paths or access land if it is considered that large numbers of people are likely to congregate in close proximity.

The closure of all such footpaths, bridleways and access land is to be publicised on the organisation’s website and warning notices are to be erected informing the public of the closures.

For example, the Vale of Glamorgan Council website reveals that Cosmeston Lakes Country Park and Porthkerry Country Park together with a number of public footpaths, are closed.

According to a Breitbart report published on 15 April 2020, “British police are calling for expanded powers to enforce the coronavirus lockdown rules, including the authority to forcefully enter private residences suspected of hosting forbidden gatherings.” Whilst under the previous law the police only enjoyed a right to enter a private residence with a court warrant, or with the permission of its occupant, or in active pursuit of a suspected criminal, the Police Federation of England and Wales has been agitating for increased powers of entry.

This has turned out to be the one area of significant difference between the Welsh and the English Regulations. For example, Regulation 11 of the Welsh Regulations describes the Power of Entry thus:

A relevant person may enter premises, if the relevant person (a) has reasonable grounds for suspecting that a requirement imposed by these Regulations is being, has been or is about to be contravened on the premises, and (b) considers it necessary to enter the premises for the purpose of ascertaining whether the requirement is being, has been or is about to be contravened.

In addition, Regulation 11 (2) (a) says, “A relevant person entering premises in accordance with Paragraph (1) may use reasonable force to enter the premises if necessary.” For the purposes of Regulation 11, a 'relevant person' includes persons such as a police constable and a PCSO.

Who Interprets the Law

Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 was a landmark decision of the House of Lords on the question of statutory interpretation. It established the principle that when primary legislation is ambiguous and unclear then, in certain circumstances, the court may take account of statements made in Parliament by Ministers or other promoters of a Bill in construing that legislation.

Unfortunately, this legal precedent is of no value in relation to the Coronavirus lockdown regulations, for two reasons. Firstly, they are secondary legislation, enacted under the powers of the Public Health (Control of Disease) Act (1985), and secondly, because the draft was never laid before Parliament and no ministerial statements were ever recorded in the parliamentary record of proceedings, the will of Parliament cannot further be discerned in this case.

The Legal Basis for the Lockdown in Northern Ireland and Scotland

These are broadly similar in scope to those published by the Secretary of State for Health in England and are the Health Protection Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 and the the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020. However, neither of these Statutory Instruments contains provisions similar to those in Wales granting powers to other public bodies to close public paths or access lands and neither do they contain a power of entry in respect of suspected breaches of the Regulations.

Variation or Termination of Restrictions Imposed by the Coronavirus Lockdown Regulations

In each nation of the United Kingdom, the relevant authority is required to review the ongoing need for any restrictions or requirements imposed by the Regulations at least once every 21 days; ‘relevant authorities’ being the Secretary of State for Health in England, the Welsh Ministers, the Department of Health for Northern Ireland and the Scottish Ministers.

This raises the prospect that at some future date, the four countries of the United Kingdom could be under different lockdown regimes. Once again, this conflicts with the rule-of-law principle that 'all are equal under the law.'

Conclusion

We believe that immediately the Coronavirus Emergency period is over, there should be a public Inquiry conducted into the policing of the lockdown regulations. This should not only scrutinise the behaviour and actions of individual officers but also critically examine the leadership role played by Chief Constables. Such an investigation should make reference to the Peelian principles of policing and more particularly, principle 2:

To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect.

A second strand of any inquiry should be an examination of the regionalisation process of the late 1990s, which was driven by the European Union. This has left us in the position where a UK resident can be subject to different laws depending on his geographical location. As we have now left the European Union, is it still necessary for us to have four separate legislatures, which has resulted in a divided Kingdom?