“Pardonable in the heat of crisis- but we must urgently return to the rule of law.”

9 April 2020 by Rosalind English

UKHRB readers may be interested to see a paper co-authored by Guy Mansfield QC, formerly member of 1 Crown Office Row. Guy – Lord Sandhurst QC – is a past Chairman of the Bar of England and Wales, and a current member of the Executive of the Society of Conservative Lawyers. He has kindly given us permission to link to the paper here.

Anthony Speaight QC is Chair of Research of the Society of Conservative Lawyers, and was a member of the Government Commission on a UK Bill of Rights.

Here is a very short summary of the paper’s arguments.

The Coronavirus Act 2020 was published on Thursday 19th March. It had its second reading in the House of Commons on Monday 23rd March. By Wednesday 25th March it had completed all stages in both Houses and received royal assent.

It is a massive statute in every sense running to 348 pages in length. Perhaps curiously, however, it currently plays no part in the curtailments on shops, places of entertainment, churches and citizen movements. These have been achieved for England by a relatively short statutory instrument, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 350).

The Coronavirus Restrictions Regulations were made under the Public Health (Control of Disease) Act 1984. 

The authors point out that the orders to close specified premises and businesses including hotels etc. during the emergency have not, broadly speaking, been the subject of controversy. What has been causing considerable debate, and distress, is Regulation 6, ‘Restrictions on movement’.

We have all heard anecdotes about the unfair impact of these restrictions and their exceptions. The plant nursery that has to close down while the supermarket next door continues selling plants. Groups on social media are reporting on individuals going to the coast for a swim in the sea. But the “reasonable excuse” definition in Regulation 6, say the authors,

includes the need to take exercise either alone or with other members of their household. Nothing in the regulation, says that one may only take exercise once a day. 

The “mission creep” of unlawful restriction on liberty, argue the authors, comes from the government’s ‘Guidance’, published a full three days after the making of the regulations: Coronavirus outbreak FAQs: what you can and can’t do.

I urge anyone interested in the limitations of laws limiting our basic freedoms to read this paper in full and bear the authors’ caveats in mind when wondering whether to go for that second walk on a fine day:

a Government document which purports to set out the law should not assert a restriction which does not exist.

The authors are at pains to stress that they fully support the underlying aim of the regulations, and they do not criticise the substantive detail of the policies. However, they conclude that it will not be pardonable if Government does not take steps at an early date to return our country to the rule of law.

That will best be achieved by the Minister addressing these concerns, to the extent that he can prior to further primary legislation, in the review which must be held by 16th April; and by the Government as soon as Parliament reassembles bringing forward emergency primary legislation to place the curtailments of freedom on a surer legal footing, with such protections for the citizen as can be reconciled with the achievement of social distancing.