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At 11am today, new Regulations came into force that amend the “lockdown” law in England: the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 (SI 2020/447).

These Amending Regulations make various changes to SI. 2020/350, the law giving effect to the lockdown in England.  Some of the amendments are of a technical nature and seek to clarify ambiguity in the wording of the Regulations (for example, Amending Regulation 2(5)(a)).

However, without much fanfare and with no Parliamentary scrutiny, Amending Regulation 2(4)(a) has introduced a potentially significant change to Regulation 6, which now reads:

6. – Restrictions on movement

(1)  During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse…”

[Emphasis added]

Previously, Regulation 6(1) prohibited any person in England from leaving their home without a “reasonable excuse”.  The Amending Regulations have created a new offence: being outside one’s home without a reasonable excuse may break the law, even if you had a perfectly good reason to go out in the first place.  This follows from the disjunctive “or”.

This amendment to Regulation 6(1) meaningfully expands policing powers at a time when confusion about the extent of those powers has already led to increasingly coercive action.  For example, one police force was criticised by the Home Secretary for threatening to perform checks of people’s shopping baskets. Reportedly, police in England issued more than 3000 fines in just a few weeks of lockdown. 

According to the Explanatory Note to the Amending Regulations:

“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.”

However, the new wording of Regulation 6 may increase ambiguity rather than reduce it.  For example:

(1)  Is a “reasonable excuse” now time-limited?  If a person leaves home because they need to exercise alone (Regulation 6(2)(b)), is that still a “reasonable” excuse to be outside hours later?  If not, how can that individual determine the point at which their original purpose ceases to protect them from sanctions?     

(2)  How might a “reasonable” excuse to leave home differ from a “reasonable” excuse to “be outside”?  Formerly, Regulation 6(1) required a focus on the reason for leaving home, which was arguably narrower and more precise. After the Amending Regulations, there are now 14 illustrative examples of “reasonable excuse” in either case, including new subparagraph (ga) of Regulation 6(2):  “the need … to visit a burial ground or garden of remembrance, to pay respects to a member of the person’s household, a family member or friend”.

Inevitably, these are highly fact-sensitive questions. However, they illustrate the considerable subjectivity inherent in enforcing the lockdown.  Regulation 6 leaves much discretion to relevant officials; not only police officers but also persons designated by a local authority or the Secretary of State (Regulation 8(12)).  In addition, the vague term “reasonable” excuse may lead to confusion between the law, and guidance.

It is very important that individuals respect the public health guidance – it is designed to save lives.  However, both the rule of law and respect for civil liberties require that we maintain the distinction between what is guidance and what is the criminal law. A perceived breach of Regulation 6 may lead to forcible removal to one’s home, Fixed Penalty Notices, and fines upon summary conviction (Regulations 8-10).

In sum, as previously discussed in more detail by Tom Hickman QC, Emma Dixon and myself, such draconian powers warrant careful scrutiny and ought ideally to be placed on a statutory footing.  Concerns about the extent and clarity of coercive powers may be amplified in light of the new prohibition in Amended Regulation 6.

This article was written by Rachel Jones.

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