“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.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: