Eight ways to reinforce and revise the lockdown law

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and the counterpart regulations in Wales, Northern Ireland and Scotland, impose the most drastic restrictions on liberty ever seen in the United Kingdom.  On 16 April 2020 they reach their first review point and it is a clear that they will be continued, probably initially for a further period of three weeks and thereafter quite likely for a much longer period either in their current form or in modified form.

There can be no doubt that the core measures imposed remain justified. It is therefore imperative, especially given the length of time that they are likely to govern life in this country, that the measures meet certain minimum standards. It is helpful to identify three such standards. First, it is vital that the measures are clear so that people know what the law requires of them and so that enforcement authorities know what their powers are. Secondly, the measures must be legally sound and robust to minimise legal risks associated with individual measures, which could affect the legitimacy and effective enforcement of the measures. Third, the measures should be adequately tailored to ensure that they meet their objectives without creating unnecessary tensions with individual liberty and autonomy.

In a paper that I co-authored with Emma Dixon and Rachel Jones we analyse aspects of the regulations in some detail. Drawing in part on that analysis, the purpose of this blog is to suggest eight improvements that could be made to the regulations to better meet these three standards. These are by no means exhaustive suggestions and I do not descend into detailed discussion of each issue.

1: The core restrictions on liberty and the associated powers for people to be returned home, using force if necessary, should be put on a clear and explicit statutory basis.

There is, to say the least, a significant question mark over whether the chosen statutory basis for the regulations in the Public Health (Control of Disease) Act 1984 is legally adequate for the home confinement provisions, as has been pointed out by Lord David Anderson KBE QC, by Robert Craig,  by Lord Sandhurst QC and Anthony Speaight QC and by myself and my co-authors, at paras 31-45. Professor Jeff King has defended the legal basis of the regulations. Whilst there is broad agreement that there is a plausible textual basis for the restrictions on liberty contained in the regulations, it is undesirable that there is no express basis for the unprecedented restrictions on individual liberty set out in primary legislation. Subtle and sophisticated legal analysis should not be necessary to identify the statutory basis for the rules. It appears that Parliament will soon be operating remotely (the challenges are superbly addressed by Hannah White) and it would be highly desirable for an Act of Parliament to provide a bespoke framework for the regulations going forward.

2: Require regular renewal by Parliament.

Any Act of Parliament should also require regular approval for such measures to ensure they continue to have the strongest democratic legitimacy. The regulations currently have a shelf life of six months but it would be desirable to obtain Parliamentary approval more regularly. Had the Government used the Civil Contingencies Act 2004, fresh regulations requiring parliamentary approval would have had to have been laid every 30 days. Regular parliamentary renewal is especially important as circumstances change over time. The restrictions might be tightened or relaxed, either generally or in relation to certain groups and categories of persons. It is also possible that the social distancing restrictions might, once relaxed, have to be re-imposed to prevent a second wave of the virus. A mechanism for ensuring that Parliament has a prominent role in scrutinising and approving the restrictions as they change over time should be built in to the legal regime. One way of overcoming logistical issues associated with parliamentarians working remotely, as well as to address what is likely to remain a rapidly changing situation, might be for a bespoke parliamentary committee to be established to make recommendations to Parliament. 

3: Remove the subjective nature of the powers.

If we now descend a little into the detail of the regulations, we find a number of enforcement powers that are very broadly framed. The regulations confer enforcement powers on “relevant persons”; for example in England, police constables, community support officers or other persons designated by the Secretary of State (r. 8(12)). In several instances, the powers conferred on such relevant persons are framed in broad subjective terms without any requirement of “reasonable belief” or an objective requirement of necessity and proportionality.

Thus, the power for a relevant person to remove a person to their home arises when a relevant person “considers” that the person is in breach of the home confinement requirement or the prohibition on assemblies. The power can be exercised if the relevant person “considers that it is a necessary and proportionate means of ensuring compliance…” (r. 8(8)). Yet by contrast, the power to impose a prohibition notice to enforce closure of businesses can be exercised only “if the relevant person reasonably believes that” a person is contravening a requirement (r. 8(2)). There is no obvious reason for this important difference in the legal protections on the use of these powers.

The Human Rights Act 1998 would probably require the regulations to be read subject to objective requirements to ensure that they are compatible with the European Convention on Human Rights, so that the powers are exercised in a way that is objectively necessary and proportionate. However, it would be desirable for such protections to be spelt out in the regulations themselves to ensure clarity and to make sure the powers are legally robust.

4: Clarify or limit when force can be used.

The regulations also permit a relevant person to return a person to their home, using reasonable force if necessary. A person can also be removed to their home when found to be participating in a gathering. The removal power is in addition to the police power of arrest and the power for relevant persons to issue a fixed penalty notice. As noted above, in England (and Wales) a “relevant person” can be a community support officer or other (unspecified) person designated by the Secretary of State. Arguably the power of removal could be either restricted to police officers or subject to a requirement that, in the case of community support officers and other persons who are not police officers, it cannot be used unless it is not reasonably practicable to await the attendance of the police. In Scotland the power is limited to police officers, suggesting its wider availability elsewhere may not be justified and could be more closely tailored to the circumstances. Moreover, the UK Government Coronavirus Guidance refers only to police officers exercising these (and indeed other) powers. Thus, the guidance states: “[t]he police have powers to disperse gatherings and issue fines  if necessary” and “the police may … take you home – or arrest you – if you do not follow their instructions or where they deem necessary”. Such guidance is likely to mean that people do not realise that community support officers and others also have powers to use force in enforcing the regulations. This lack of clarity is unfortunate.

5: Prescribe or limit the power for a “relevant person” to give mandatory instructions to any person they consider to be infringing the measures. 

Several of the powers conferred on relevant persons are exceptionally broadly described. One example of this is the power for a “relevant person” who is enforcing the requirement that people remain at home or the requirement that people not gather outside, to “give the person[s] concerned any reasonable instruction they consider to be necessary” (r.8(11)). This is a very broad power, being objectively limited only to what is “reasonable”. The consequence of not complying with a reasonable instruction is, absent reasonable excuse, that a person commits an offence (r. 9(3)). The power essentially allows relevant persons to write the criminal law on the streets by giving reasonable instructions that it is a crime for people to ignore. It is unclear whether such instructions could, for example, require a person to provide their reason for being outside their home, giving rise to a serious issue of self-incrimination, or to disclose personal or medical information. It would be far preferable if the instructions that can be given were specified in the regulations and/or that such instructions were not backed by criminal sanctions. After all, a person who is outside their home without reasonable excuse, or who was part of a gathering, would already be committing an offence and they would commit another offence if they refused to return home if directed by a relevant person to do so.

6: Put beyond doubt that normal shopping for food and drink is not an offence and that persons are not limited to, or even required to shop for, “essential” or “basic” food items.

There has been much reported in the news media and much discussion on social media about whether people can shop normally for food and drink items or whether they are restricted to purchasing essential items. The Chief Constable of Northamptonshire Police even stated publicly that police might in the future search shopping trollies. The confusion arises from regulation 6(2)(a) which provides that it is a reasonable excuse to leave one’s home “to obtain basic necessities, including food …”. What this provision means is that food (and drink), is to be regarded as a basic necessity and therefore people can leave their home to go and buy it. It does not mean that one can only buy food and drink that constitutes a basic necessity or even that one can only leave home if one sets out to purchase at least one “basic necessity” food or drink item. Not only is that not what the regulation states, it would be utterly unclear what fell within the category of a “basic necessity” food or drink item if it were read in such a way. Indeed, this might depend on what other food or drink one had at home: even a loaf of bread or a packet of butter might be a luxury one day and a necessity another. The only sensible reading is the one set out above. It is for this reason that supermarkets, convenience stores and corner shops, as well as off-licences, are permitted to remain open (regulation 5(1), Schedule 2 Part 3). Whilst it is strongly advisable for people to limit leaving home to shop as far as they can, they are not committing an offence if they leave home to shop normally for food and drink. The regulations as currently drafted have unfortunately sowed the seeds of confusion rather than provided clarity on this issue.

7: Remove differences between parts of the United Kingdom unless there is a clear rationale for the differences.

A number of differences between the regulations in different parts of the UK were set out by myself and my co-authors, at paragraph 29. These include the fact that, as mentioned above, only a police officer can remove persons to their home in Scotland but this is not the case elsewhere. It is also presumptively unlawful to leave your house for exercise for more than once a day in Wales, but not in the rest of the UK.  There is also an express power of entry to enforce the regulations in Wales. Such differences in the legal regime are apt to cause confusion and they suggest that either some parts of the regulations in some parts of the UK go beyond what is necessary, or that some parts of the regulations do not go far enough. There should be a clear rationale for all such differences.

8: Set out in law additional grounds for persons leaving home where these are accepted by Government.

One of the problems with the regulations is the lack of clarity as to what could constitute a “reasonable excuse” for leaving home. Whilst the regulations helpfully set out some reasonable excuses, others should be added where these are accepted by the Government to be compatible with combatting the health emergency. One example is  allowing persons with specific health needs, such as autism, to go outside because of those health needs. Following a legal challenge, the UK Government Guidance has been amended to state:

"15. Can I exercise more than once a day if I need to due to a significant health condition?
You can leave your home for medical need. If you (or a person in your care) have a specific health condition that requires you to leave the home to maintain your health – including if that involves travel beyond your local area – then you can do so. This could, for example, include where individuals with learning disabilities or autism require specific exercise in an open space two or three times each day – ideally in line with a care plan agreed with a medical professional."

The amendment to the Guidance remains unsatisfactory. In the first place the Guidance states that “[y]ou can leave your home for medical need”. However, the regulations do not state that people can leave their home for medical need, such as mental health needs. They state that you can leave your home to “seek medical assistance” or to “avoid injury or illness”. Avoiding illness is the closest that the regulations come to the exception now recognised in the guidance but it is not the same and would not be understood in the same way. 

Moreover, the Guidance appears to be invoking the “exercise” exception contained in the regulations and is provided in answer to a hypothetical question concerning exercise.  But the guidance is not really addressing exercise but the need for persons to be outdoors for health reasons, including mental health reasons. One wheelchair-user asked on a twitter exchange on this topic whether they could ever go outside other than to shop given that they cannot, they said, claim to be engaging in exercise. Such examples show that trying to shoehorn justified exceptions for persons with disabilities into the existing exercise exception introduces further problems and ambiguities. Exceptions should be explicitly set out in the regulations to ensure that they are clear, properly tailored and legally robust.

As time goes by, the Government will be considering additional exceptions and these too should be clearly reflected in the law (and not just the guidance). One relaxation which one can expect to be considered at an appropriate time would be to allow families with young children to go outside for recreation, maintaining social distancing. The current restrictions impose a particular toll on parents with young children, especially single parents, who do not have access to a garden.  An exception to allow families access to open spaces for children’s recreation (even if playgrounds remain closed) is the sort of change that should be clearly set out in the regulations themselves.

Conclusion

The Coronavirus regulations were introduced on an emergency basis to address an immediate crisis. It is now likely that the core restrictions, even if in some revised form, will continue for a considerable period of time. It is therefore especially important that the restrictions contained in the regulations have a clear and robust legal basis. This blog has made some suggestions for refining and reinforcing the regulations to ensure they (or some modified form of the regulations) are fit for a prolonged period of use.

Tom Hickman QC, UCL and Blackstone Chambers.

Thanks to Professor Gavin Phillipson for helpfully commenting on a draft.

This article was first published by the UK Constitutional Law Association (15th April 2020) (available at https://ukconstitutionallaw.org/2020/04/16/tom-hickman-eight-ways-to-reinforce-and-revise-the-lockdown-law/)