An Englishman’s home is usually said to be his castle, not his prison. But the extraordinary times in which we live have called for and resulted in extraordinary measures. Under these we leave our homes at risk of fines or worse. We do indeed face a grave public health emergency and there is a need for drastic curtailments of our accustomed freedoms. But the legal route adopted to curtail the rights and liberties of the citizens of this country is profoundly unsatisfactory.
The government announced in late afternoon of Thursday 16th April that the current lockdown is to continue for another three weeks at least. It is plain that when steps are taken to relax things this will only be in stages. A state of emergency is likely to continue for some months. So it must be managed properly. With Anthony Speaight we have identified failings which can and should be rectified without delay.
Our conclusions are that
- the present powers and obligations are not grounded on a sound legal basis;
- the government must take steps to put this right;
- modifications and clarifications must be made to the formulation of the powers and obligations imposed upon us;
- official published guidance as to the scope and effect of the legislation is inaccurate and must be clarified;
- there is a clear way forward, namely by amendments to the Coronavirus Act 2020, redrafted regulations and revised guidance.
In our paper of 16th April, “Pardonable in the Heat of Crisis – Building a Solid Foundation for Action,” we addressed those five points in detail. What follows is a synthesis of that paper and its predecessor in which we explain where we are and why it is too unsatisfactory to continue.
The regulations which purport to control what we may or may not do in England and Wales, in particular, are made under the Public Health Act 1984. We believe (a view shared by other legal authors such as David Anderson, Robert Craig and Tom Hickman) that that Act did not provide a statutory basis for the making of regulation six—which provides that we may not leave without reasonable excuse the place where we reside. That is especially so when taken with the enforcement provisions in regulation eight. In short, we say, the 1984 Act is intended to address the need to “quarantine” individuals on a case-by-case basis, providing a right of appeal to a magistrates’ court. It is not drafted in terms to enable the minister to make regulations to detain the entire population in their homes backed by the use of force. The better way forward now is to amend the Coronavirus Act 2020 and make new regulations thereunder.
Further, the regulations lack clarity and certainty as to what will constitute “reasonable excuse.” The non-exhaustive list of examples given in regulation six refers, for example, to shopping for “basic necessities.” It might be thought that those would not include alcohol. But under schedule two to the regulations, off-licences and supermarkets (which sell many items not “basic necessities”) have been exempted from closure. This has caused issues—was an Easter egg a permitted purchase? May we drive to the countryside for exercise?
Importantly, regulation eight gives power to a “relevant person” [“RP”] to enforce: directing an individual to return home or physically removing that person to their home, and even to use “reasonable force, if necessary.” There is no requirement that the RP must have a reasonable belief that the individual has no reasonable excuse. There are no criteria to assess when reasonable force is necessary. Is it simply to be lack of compliance with a direction or is it to be because there is some threat to public health? Confusingly, elsewhere in regulation eight an RP is given a statutory power of arrest. Sections 24 and 24 A of the Police and Criminal Evidence Act 1984, with suitable modification, provide a model for reform of these enforcement aspects.
The uncertainty as to what constitutes “reasonable excuse” for being not at home, together with unorthodox powers to take people home by force founded on “say-so” is not how we should proceed in this country with its proud traditions.
In short, the government must amend the Coronavirus Act 2020 to authorise regulations if it wishes to restrict our movements and empower those in authority to enforce by force if necessary. Fresh regulations must be properly and clearly redrafted. In our paper we describe how this might be done.
Finally, the official guidance is inaccurate and misleading. Mistaken assertions include that an individual should only leave the house to shop for basic necessities, for example food and medicine. That is incorrect, once out of the house one may enter any shop permitted to open. So too, they wrongly assert that one may leave one’s house for only one form of exercise a day. There is no such restriction in regulation six as to frequency (save in Wales, and the unexplained differences between the nations is another cause of confusion and concern). People with children, particularly those without gardens, may well need to take them out more than once during a day.
The guidance should make it plain that what matters is social distancing and the avoidance of proximity to others and of exposing oneself to any risk of injury, eg by driving long distances or too fast. But to drive a few miles to open countryside for a walk in solitude, is not prohibited by the regulations nor should it be. What written guidance the government might give will depend on the content of the new regulations. But it must summarise the law accurately. Where it is desired to explain the need for care about how often and in what circumstances we may leave home, such (mere) guidance should not be put in mandatory terms.
So the current position as to the status and scope of the regulations is unsatisfactory and creates risk for the government and for those charged with enforcing the regulations. The guidance must be redrafted with clarity and precision. In this country we can and should do better.
Benet Brandreth QC is a former member of the Attorney General’s "A" Panel of Counsel and a specialist in intellectual property law
Lord Sandhurst QC is a past Chairman of the Bar of England and Wales (as Guy Mansfield QC) and a current member of the executive of the Society of Conservative Lawyers
Why the Coronavirus Act 2020 must be promptly and properly redrafted
The ambiguity over lockdown powers is alien to this country’s proud traditions
April 17, 2020
Cyclists ride across an empty Westminster Bridge in front of the Houses of Parliament in Westminster, London, the day after Prime Minister Boris Johnson put the UK in lockdown to help curb the spread of the coronavirus.
