“Pardonable in the Heat of Crisis – building a solid foundation for action”

16 April 2020 by

In a paper published today Lord Sandhurst QC and Benet Brandret QC follow up on the previous paper co-authored by Lord Sandhurst QC by making concrete proposals for addressing the issues identified previously (see the previous paper here and our post on it here). It sets out a more concluded position on the doubts as to the vires for SI 2020/350 by explaining why the Statutory Instrument is, indeed, ultra vires, and the need for new legislation. It also sets out routes to put legislation and Guidance on a sound footing.

What follows is a very short summary of the authors’ questions and proposals.

Are the present powers and obligations, they ask, grounded on a sound legal basis? What is their standing? What issues have arisen?
To the extent that they are not well-grounded, how should the Government ensure they are given a sound legal basis? What is the best route forward?

What modifications should be made to the formulation of the powers and obligations to provide clarity as to their scope and effect both in the legislation and Guidance?

The paper argues for clarifying the current uncertainty created by the regulations by

  1. Reissuing (redrafted for clarity) regulations under the Civil Contingencies Act 2004;
  2. Proceeding by way of Amendment of the 1984 Act; and
  3. Amendment of the Coronavirus Act 2020, with redrafted regulations

The reason for proposal 1, say the authors, is that the CCA 2004 Act grants far more substantial powers to the executive but requires concomitantly more stringent safeguards. It is, in terms, intended for extraordinary crises such as this one. As was pointed out in the preceding paper, absent lawful authority, compelling people to remain in their homes and using force to ensure they do so would normally amount to imprisonment at common law and trespass to person.

Such requires that intrusions on fundamental common law rights, that is the authorisation of what would otherwise be tortious conduct, must be by express provision.

We need to remind ourselves, even in times of crisis, that public authorities are generally subject to the same liabilities in tort as private individuals and bodies: see, for example, Entick v Carrington (1765) 2 Wils KB 275. Regulation 8 is therefore outwith the powers of the 1984 by allowing the movement restrictions imposed by Regulation 6 to be imposed by “any ‘relevant person’, which includes for this purpose in England and Wales not only constables with their powers of arrest but also police community support officers and ‘a person designated by the Secretary of State for the purposes of this regulation’.

The enforcement provisions are brief in their terms, yet they grant enormous powers. The powers are given [at least outside of Scotland] to individuals without any statutory power of arrest and, in relation to the Police, appear to supplement the statutory powers of arrest without any of the accompanying safeguards.

The authors go on to point out that the enforcement powers granted to a “relevant person” to enforce the movement restrictions veer between a requirement of subjective belief vis a vis other people (such as those travelling to their second homes) as opposed to “reasonable belief” that a business should not be operating.

In short, reg 8 does not bear more than a cursory examination before descending into considerable confusion and uncertainty.

And that is the end of this summary: far better to click on the link above and read the full paper, and its excellent references. Let me just finish by quoting one of the concluding paragraphs.

The current position as to the status and scope of the regulations is unsatisfactory and creates risks for the Government and for those the Government has purported to empower to enforce the Regulations. It must be resolved as a matter of urgency.

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