The lockdown law

Eight ways to reinforce and revise the coronavirus restrictions regulations. By Tom Hickman QC


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. They have passed two reviews and on 13 May were amended to alter some of the restrictions. It appears that these will be the centrepiece legal instrument of the government’s response to the Coronavirus pandemic.

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.

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. Second, 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.

The purpose of this article 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: Put the core restrictions on liberty 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. While there is broad agreement that there is a plausible textual basis for the restrictions on liberty contained in the regulations, the 1984 Act does not authorise regulations to impose confinement either expressly or by necessary implication, or use of force powers to return people to their homes (see Hickman, Dixon and Jones, Coronavirus and civil liberties in the UK, Blackstone Chambers). Such unprecedented restrictions on individual liberty should have a clear and firm basis in primary legislation. Subtle and sophisticated legal analysis should not be necessary to identify the statutory basis for the rules. 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 reimposed 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 into the legal regime. Indeed, the amendments made on 13 May 2020 underscore the unsuitability of the 1984 Act as the basis for the regulations. The amending regulations were brought in using the emergency procedure under that Act, although there was no evident urgency in relaxing the lockdown measures. Use of the emergency provisions meant that draft regulations did not have to be laid before, or approved by, Parliament before they took effect.

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. Intriguingly, amendments were made to the Welsh regulations to bring in ‘reasonable belief’ and ‘reasonable suspicion’ requirements, but these have not been replicated in England.

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

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 shopping for food and drink is not limited to ‘essential’ items

There have been many news reports and discussions 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 reg 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. The only sensible reading is the one set out above. It is for this reason that supermarkets, convenience stores and corner shops are permitted to remain open (reg 5(1), Sch 2, Pt 3). While 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.

7: Remove differences between parts of the UK unless there is a clear rationale for the differences

A number of differences between the regulations in different parts of the UK have been set out. 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. On 13 May the differences became more pronounced. In England, but not in the rest of the UK, people became entitled to leave or be outside their homes for ‘recreation’, and outdoor sports courts were opened. In Wales, libraries were opened but there was a prohibition on persons taking exercise outside their locality. Such differences in the legal regime are apt to cause confusion both to individuals and police.

8: Set out in law additional grounds for persons leaving home

One of the problems with the regulations is the lack of clarity as to what could constitute a ‘reasonable excuse’ for leaving home. While the regulations helpfully set out some reasonable excuses, they are not exhaustive. The use of non-binding guidance to overlay the regulations with a layer of gloss is not always helpful. 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’s guidance was amended to state that people with health needs could go outside for ‘exercise’ several times per day. However in reality this was not exercise at all, but recreation: the guidance sought to gloss the underlying legal rules.

On 13 May the regulations were amended to allow people to leave their home for ‘recreation’ in a public open space, where this is necessary to promote physical or mental health or wellbeing. However, what constitutes the promotion of physical or mental health or wellbeing is guesswork. The accompanying guidance states that people can go to the park simply to ‘enjoy the fresh air’ or have a picnic. It seems that the conditions that it must promote health or wellbeing are essentially redundant.

As the restrictions on liberty are relaxed and the rules become more permissive it is inevitable that the lines drawn will often appear – indeed are – arbitrary. For example, after 13 May the regulations allow persons to exercise or visit an open space with one person who is not of the household. But why one person only? Applied to a wider family unit the consequence appears bizarre: an adult can meet their parents in the park one at a time but not together. A grandchild can go for a walk with one grandparent but not both. People can have childminders or cleaners but cannot allow close friends to come to their house. An increasing burden is thrown on the concept of ‘reasonable excuse’. Thus, if it is permissible to meet a friend in the park is it also a ‘reasonable’ reason for being outside your house that you meet them in their garden?

Legal regulations require lines to be drawn and the lines will be harder to justify the less tightly they are framed. They are likely to come under great stress, with people increasingly relying on their own discretion as to what constitutes responsible conduct. Indeed, the UK government’s change of messaging from ‘stay at home’ to ‘stay alert’ (which has not been followed outside England) is designed to place greater emphasis on individual responsibility and choice. How comfortably that sits with an underlying regime of criminal prohibitions and sanctions only time will tell, but increasing tensions are predictable.

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, are subject to democratic scrutiny in Parliament and have the legitimacy that comes with such scrutiny.

This article is an edited and updated version of T Hickman, ‘Eight ways to reinforce and revise the lockdown law’, UK Const L Blog (15 April 2020). It draws on a paper Tom co-authored with Emma Dixon and Rachel Jones analysing aspects of the regulations in more detail: Coronavirus and civil liberties in the UK published by Blackstone Chambers.
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Tom Hickman QC

Tom Hickman QC is a Reader in Public Law at UCL and a barrister at Blackstone Chambers.