The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and the similar (but not identical) regulations made in the other 3 nations of the UK (together, “the ‘Lockdown’ Regulations”) have been suggested by some to be unlawful (being ultra vires their parent statute) insofar as they purport to criminalise all those leaving the places where they are living, as opposed to merely those who may be infected. This blog examines the main arguments and explains the legal consequences if those arguments are right.
Note: The ‘lockdown’ and linked social distancing are vital for pressing public health reasons and nothing in this blog should be taken to endorse anyone doing anything whatsoever to damage the national effort to reduce the spread of the Coronavirus. It merely looks at recent arguments about the lawfulness of Regulations made very swiftly indeed by Minsters dealing with a national emergency, which regulations have not been scrutinised by Parliament.
There is a clear moral obligation on each of us to stay home in order to assist in the fight against the pandemic and to observe strict social distancing when we must be outdoors. But is there anything in the recent legal commentary suggesting that they may not be a valid and enforceable legal obligation, the breach of which can result in criminal penalties and the use of force by police?
Why might the ‘Lockdown’ Regulations be unlawful?
A good starting point is this interesting blog by Lord (David) Anderson of Ipswich KBE QC. The Regulations do something quite extraordinary: they criminalise the mere act of leaving your home (or, in England, being outside it – see below), unless you have reasonable excuse (as to which, in Scotland, the burden of proof lies with you).
Note that the opening words of the Regulations state that the s.45Q(4) requirement, that a statutory instrument may not be made under the Act unless a draft has been laid before, and approved by a resolution of, each House of Parliament (for the English Regulations) has not been complied with because of the urgency exception in s.45R. That has prevented scrutiny (and improvement) by parliamentarians like Lord Anderson QC.
Such scrutiny might have identified the flaw, noticed by many, in Reg 6 that it only required reasonable excuse for leaving the place where one is living rather than also for remaining away.
I pointed out this flaw on 31st March in my blog post entitled “The quickly mutating Coronavirus legislation – drafting anomalies and police powers”. I said that, “If the Secretary of State had wished to criminalise being outside the place where you are living without reasonable excuse, as opposed to criminalising the act of leaving without reasonable excuse, then he could easily done so.” At 11 am on 22ndApril, he did indeed do so – he introduced a further mutation by means of the Reg 2 of the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 which amended Reg 6(1) to read as follows:-
“During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse.”
Paragraph 6.6 of the Explanatory Memorandum describes its effect on Reg 6 thus:-
“The instrument also makes a number of changes to the Restrictions Regulations to clarify and better enable the public health measures in those Regulations to achieve the intended purpose of reducing public health risks posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).
…
Regulation 6(1) is amended to put beyond doubt that a person commits an offence if they remain outside of the place where they are living without reasonable excuse, having left it for a permitted reason.”
With great respect to the Secretary of State (and to his advisers), this is no mere clarification simply “to put beyond doubt” that one commits an offence by remaining outside, even if one left home with a reasonable excuse. If anything, the amendment clarifies that, had the Minister wished to criminalise remaining outside, he could easily have done so – and eventually did.
No similar amendment appears (yet) to have been made to the Scottish or Northern Irish Regulations. On 24 April 2020 at 11.45 am, the Welsh Ministers made the Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 2) Regulations 2020 which now amends the lockdown provision in Regulation 8 of the original Welsh Regulations to include “or remain away from that place” after “place where they are living” in Reg 8 of the original Regs with effect from 12.01 am (i.e. the very beginning of) 25 April 2020. This is also described (in the Explanatory Note) as being in order to “clarify” the original requirement. In fact, it widens it.
The English ‘Lockdown’ Regulations were stated to have been made under – and so authorised by – ss.45C(1), (3)(c), (4)(d), 45F(2) and 45P of the Public Health (Control of Disease) Act 1984, each of which is dealt with below.
The Regulations can only do what the 1984 Act authorises be done under it.
S.45P simply provides for the power to make regulations under the Act to be exercisable by statutory instrument.
S.45F(2) provides that:-
“Health protection regulations may—
(a) confer functions on local authorities and other persons;
(b) create offences;
(c) enable a court to order a person convicted of any such offence to take or pay for remedial action in appropriate circumstances;
(d) provide for the execution and enforcement of restrictions and requirements imposed by or under the regulations;
(e) provide for appeals from and reviews of decisions taken under the regulations;
(f) permit or prohibit the levy of charges;
(g) permit or require the payment of incentive payments, compensation and expenses;
(h) provide for the resolution of disputes.”
So far, so good.
S.45C(1), (3)(c), (4)(d) provide, respectively:-
“(1) The appropriate Minister may by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere).
(3) Regulations under subsection (1) may in particular include provision—
…
(c) imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health.
(4) The restrictions or requirements mentioned in subsection (3)(c) include in particular—
(a) a requirement that a child is to be kept away from school,
(b) a prohibition or restriction relating to the holding of an event or gathering,
(c) a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies or the handling, transport or disposal of human remains, and
(d) a special restriction or requirement.” [emphasis added]
As David Anderson QC points out, the words “include in particular” in s.45C(4) tell you that, while the list (a) – (d) is not exhaustive, the restrictions or requirements imposed by the Regulations must be eiusdem generis (Latin to English translation: “of the same kind”). A statute which provided that the things which a statutory instrument may regulate the use of “include in particular, planes, trains and automobiles”, would authorise the regulation of the use of buses and probably motorcycles, but probably not bicycles or boats and certainly not remote controlled cars or rollerblades. They would also probably not (depending on the wider context) authorise the regulation under that statute of the use of combine harvesters, which cannot be driven on public roads and are not a means of transportation. Those things are not of the same kind as planes, trains and automobiles.
In fact, the introductory text of the English Regulations (and of the Northern Irish Regulations, but not the Scottish Regulations – which are non-specific in this respect – nor the Welsh Regulations, which specifically omit reference to s.45C(4)(d)) make clear that the prohibition on leaving or being outside of the place where one is living without reasonable excuse, contained in Reg 6 – which are the most draconian peacetime restrictions imposed on citizens in the modern democratic era – is intended to be a s.45C(4)(d) “special restriction or requirement”. If the Minister had intended to impose restrictions that were of the same kind as a “special restriction or requirement”, then he would surely have referred to s.45C(4) rather than specifically to s.45C(4)(d).
What is a “special restriction or requirement”? Well it is defined in this way at s.45C(6):-
“For the purposes of this Part—
(a) a “special restriction or requirement” means a restriction or requirement which can be imposed by a justice of the peace by virtue of section 45G(2), 45H(2) or 45I(2), but
(b) a restriction or requirement mentioned in subsection (4)(a), (b) or (c) is not to be regarded as a special restriction or requirement.”
So it is something different from a requirement that a child be kept away from school or a restriction on gatherings and burials etc. It is a requirement that could be imposed by a justice of the peace under ss.45G(2), 45H(2) or 45I(2). They are powers, respectively, to order health measures in relation to persons, things or premises.
Reg 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 concerns the imposition of restrictions on persons and so the relevant provision is s.45G(2), which provides:-
“The order may impose on or in relation to P one or more of the following restrictions or requirements—
(a) that P submit to medical examination;
(b) that P be removed to a hospital or other suitable establishment;
(c) that P be detained in a hospital or other suitable establishment;
(d) that P be kept in isolation or quarantine;
(e) that P be disinfected or decontaminated;
(f) that P wear protective clothing;
(g) that P provide information or answer questions about P’s health or other circumstances;
(h) that P’s health be monitored and the results reported;
(i) that P attend training or advice sessions on how to reduce the risk of infecting or contaminating others;
(j) that P be subject to restrictions on where P goes or with whom P has contact;
(k) that P abstain from working or trading.” [emphasis added]
But who is ‘P’? You find that out from s.45G(1), without which (2) cannot properly be understood:-
“(1) A justice of the peace may make an order under subsection (2) in relation to a person (“P”) if the justice is satisfied that—
(a) P is or may be infected or contaminated,
(b) the infection or contamination is one which presents or could present significant harm to human health,
(c) there is a risk that P might infect or contaminate others, and
(d) it is necessary to make the order in order to remove or reduce that risk.”
Remember: per s.45C(6) “a ‘special restriction or requirement’ means a restriction or requirement which can be imposed by a justice of the peace by virtue of section 45G(2)…”.
A justice of the peace may only impose a restriction on a person, P, who may be infected or contaminated, where there is a risk that s/he might infect or contaminate others and where it is necessary to do so in order to remove or reduce that risk.
Are now all P?
Those arguing that the Regulations are invalid would raise the example of the many highly vulnerable people who have been following Government advice effectively to avoid all in-person human contact (‘shielding’), for more than 3 weeks. They would argue that, in relation to those who have assiduously followed that advice, it is scientifically impossible for them to be infected or contaminated by the Coronavirus. So – the argument goes – a justice of the peace could never make an order restricting where such a person went etc. because they could never be satisfied that such a person may be infected by, or contaminated with, the Coronavirus.
Indeed, it could not sensibly be said collectively of the vast majority of people in England (and elsewhere in the UK) that we “may be infected or contaminated”. The same is likely to be true of the many people who live in relatively isolated communities.
There is also force in this point: suppose a person – let us call him Matt – living in a rural location leaves his home in order to go for a run and then stops on a deserted hillside to sit and enjoy complete solitude for a few hours. Whom could Matt possibly infect, or be infected by? The only candidate, during all those hours, would be the police officer who came to give him a fixed penalty notice or directed or removed him to his home. In the Explanatory Memorandum to the Regulations, their raison d’être is as follows (see paragraph 7.6:-
“There are two main reasons to introduce these new Regulations. Firstly, that it is critical for the UK Government to take all reasonable steps to prevent the community transmission of disease, where possible. Severe acute respiratory coronavirus 2 (SARS-CoV-2) was recently declared by World Health Organisation a Public Health Emergency of International Concern. It is also essential that the Government retains public trust in its public health protection measures. This level of trust will be critical to ensuring that the public continues to engage and comply with interventions designed to protect individuals and communities if transmission of the virus within the UK increases in the coming weeks.”
Matt’s argument would be that community transmission of the Coronavirus is entirely unaffected by him. But remember that s.45C(1) of the 1984 Act provides that another potential purpose for making regulations is “providing a public health response to the incidence or spread of infection“. That would include reducing the demands on the NHS and emergency service by greatly reducing the need for admissions for accidents or other mishaps. The ‘lockdown’ has had a dramatic impact on this.
The commentators who argue that the ‘Lockdown’ Regulations are ultra vires the 1984 Act point out that s.45G of the Act is directed toward individuals who may be infected and infectious etc., not those who may create a (contingent) danger of virus transmission by catching it from someone else and thereby (subsequently) spreading it onwards. For the great majority of the population, they must not unnecessarily leave or be outside of the place where they are living (and be somewhere where there are other people) because they may become (as opposed to “be”) infected by the Coronavirus. Indeed, the Government’s key message, frequently repeated by Ministers, is “stay at home, protect the NHS, save lives” [emphasis added]. That is because one of the main dangers is that uninfected people will leave their homes, become infected by contact with infected persons, require precious and scarce hospital treatment and then lead to the overwhelming of the NHS and of its devoted and committed staff. Another is the danger of non-Covid-19 admissions hampering the public health response.
It is undoubtedly true that what Reg 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 could have done, without attracting these criticisms, is to impose special restrictions on persons who may be infected or contaminated with the Coronavirus, being the special restrictions which a justice of the peace could have imposed by order under s.45G(2) on such persons. Reg 6 would not have attracted the above criticisms had it gone no further than to say the following (with the highlighted limiting words added):-
“Restrictions on movement
(1) During the emergency period, no person who is or may be infected or contaminated by the coronavirus may leave or be outside of the place where they are living without reasonable excuse, where there is a risk that they might infect or contaminate others.
(2) For the purposes of paragraph (1), a reasonable excuse includes the need—
(a) to obtain basic necessities … [etc.]”
That would amount to an enactment of the self-isolation guidance (namely, that you self-isolate if (a) you develop a fever or new continuous cough – for 7 days or until asymptomatic or (b) for 14 days if you live with someone who develops those symptoms). It would plainly have been authorised by the 1984 Act. But it would arguably be of very limited effect, as well as being very hard to enforce in practice. Scientists think that the most infectious people are those who are (as yet) actually asymptomatic.
Are the ‘lockdown’ restrictions of the same kind as a special restriction on an infected, infectious person?
The consequences – legal and, much more importantly, public health – of the Regulations being found to be ultra vires the 1984 Act would be extremely damaging for society (notwithstanding that it might remedy some high profile, but happily relatively infrequent, injustices).
The use of the phrase “may be infected”, as opposed to “is likely to be infected”, in s.45G(1), is highly significant. It is surely at least as low as the ‘reasonable suspicion’ threshold, e.g., for arrest. But is it a single, unvarying, standard, or might it be flexible enough to meet the challenges of a once in a century plague? The same applies to the requirement there that there be a “risk that P might infect or contaminate others” – as opposed to it being likely that he will infect others. This suggests that the risk threshold is merely something more than fanciful.
The public health response purpose in s.45C(1) of the 1984 Act is also highly significant as explained above.
It seems likely that the Court will ‘save’ the ‘lockdown’ provisions in some way. Perhaps it will hold that the criminalising of leaving or being outside of one’s home without reasonable excuse contained in Reg 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (and the restrictions on leaving in its sister legislation), as well as the associated provisions, are “of the same kind” as those which could be imposed on P with such a low threshold of proof, lowered further by the context in which the Regulations were made.
Perhaps the Court will take a more nuanced approach and hold that (1) the above highlighted – limiting – words are to be read into Reg 6 but (2) that almost everyone (save, perhaps for those shielding, who have been the most compliant subpopulation and who have the most to lose from their own non-compliance) “may be infected or contaminated by the Coronavirus”.
It is possible that the Court will hold that the reasonable excuse for leaving or being outside of the place where one is living will take its colour from the circumstances, so that Matt on his own on a hillside will be able to say that his excuse, that he wishes to enjoy the calming effects of outdoor solitude without any risk of Coronavirus transmission, will be reasonable, whereas an inner city dweller, who is much more likely to come into contact with many others, would require a better excuse against which to balance the greater risk of Coronavirus transmission. The discriminatory impact of this distinction on individuals’ Article 8 right, differing with their racial origins and socioeconomic status might well be held to be justified, given the public health imperative. It would, however, be unattractive for people in different parts of the UK to have differing movement rights.
It is, however, unlikely that the Court will hold that the pre-11 am, 22nd April, English Regulations or the Scottish, Welsh or Northern Irish Regulations criminalise merely remaining away from home without reasonable excuse, having left with a reasonable excuse. It may, however, be legitimate to infer that a person who is outside without a reasonable excuse (e.g. to sunbathe in a very crowded park) left for the same reason.
Why was the Civil Contingencies Act 2004 not used to make emergency regulations?
On Thursday 19th March, Jacob Rees-Mogg MP, Leader of the House of Commons, gave this explanation:-
“Unfortunately, the Civil Contingencies Act would not have worked in these circumstances, because the problem was known about early enough for it not to qualify as an emergency under the terms of that Act. The legal experts say that if we can introduce emergency legislation, we should do so rather than using the Civil Contingencies Act, because if we have time to introduce emergency legislation, we obviously knew about it long enough in advance for the Act not to apply. That is why that Act could not be used.” [emphasis added]
There may, with great respect to the Minister, have been some loss of signal between the message conveyed to him by “the legal experts” and that relayed by him to the House. The deadly, once in a century, global Coronavirus pandemic most certainly does “qualify as an emergency under the Act”. The 2004 Act would have been the ideal vehicle through which to introduce a sudden, unforeshadowed, nationwide ‘lockdown’ (see s.20) and it would have avoided the above questions of legality. It would also have mandated Parliamentary scrutiny, even if Parliament were prorogued or adjourned (see s.27 and s.28). Indeed, emergency regulations could have created an offence punishable by up to 3 months’ imprisonment (see ss.21(4)(c) & 22(2)(i)(i)). The current restrictions are only punishable by a fine.
It is, however, highly doubtful that new emergency regulations under the 2004 Act could retrospectively criminalise that which was purportedly criminalised by Reg 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, if those Regulations were unlawful, and/or render lawful any restrictions imposed on movement, any penalties imposed for leaving one’s home, any removals by police officers of people to their homes, etc. The national and devolved administrations have thrown all of their eggs into one basket.
How may any uncertainty as to the validity of the ‘Lockdown’ Regulations be resolved?
There are a number of possibilities. A person affected by them may seek to bring a claim for judicial review, seeking to establish this.
A person seeking to rely on them (e.g. a police officer or the Secretary of State) may make a similar – but mirror image – claim.
In a clear case, one or other of the above might feel sure enough of his/her ground to proceed and to assert his rights/powers – see Boddington v British Transport Police [1999] 2 AC 143, HL, at 157H – 158B:-
“… in a flagrant case of invalidity a private citizen might feel sure enough of his ground to proceed and rely on his rights to assert the “defect in procedure” … as a defence in proceedings brought against him; … on the other hand, where a defect in procedure … would not render the public body’s act ultra vires …, the public body may feel safe to proceed without taking further steps to shore up the validity in law of what it had done … and … in the grey area between these clear examples, it might be necessary for the private citizen to safeguard his position by taking the prudent course of seeking a declaration of his rights, or for the public body to reconsider the matter.”
Mr. Boddington, charged with smoking on a train, had argued before the magistrate that the railway byelaw prohibiting smoking was ultra vires its parent statute. The magistrate and the Divisional Court held that this issue lay outside the jurisdiction of a criminal court. On his appeal to the House of Lords, Mr. Boddington won the battle (he was held to have been entitled to argue this issue) but lost the war (the byelaw was valid) and so he had to pay the £10 fine and costs.
Alternatively, a person may seek (like Mr. Boddington) to defend himself against charges of having committed an offence contrary to Reg 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 by arguing that the Regulations were ultra vires insofar as they imposed ‘lockdown’ on everyone in England, regardless of their infection status or geographical isolation. The presumption of validity of the Regulations would mean that it was for such a defendant to establish that they were ultra vires. In the event that the Courts (including the appellate courts) so held, those coercive and punitive acts founded upon Reg 6 would be on decidedly shaky ground.
For the reasons set out above, the author considers it more likely that modern day Boddingtons will end up with the same result that he did.
We are all P now.