This week, amendments to the Health Protection Regulations (the laws that have created the ‘lockdown’) were made in England, Wales and Scotland. No recent amendments have been made to the Northern Irish Regulations – they were already relaxed before the rest of the UK, possibly due to its lower infection and death rate.
These laws represent some of the greatest infringements on our basic freedoms the country has ever seen, and yet have been characterised by confusion, a lack of scrutiny and shocking enforcement. Once again, the amendments were passed with no Parliamentary debate.
Clarity is essential to the rule of law. Without it, it’s impossible for the public to know which actions are unlawful. Never has it been more essential, both for public health and for our fundamental rights, to know exactly what we are permitted to do, with who, and where. The UK Government and devolved administrations in Wales, Scotland and Northern Ireland have all failed to provide this much needed clarity, as restrictions on our fundamental liberties seem to change with the wind.
We have previously detailed the differences between lockdowns across the four nations of the UK, in our monthly Emergency Powers and Civil Liberties Reports. Despite insistence from the UK Government that it’s pursuing a “coherent, coordinated and comprehensive” approach to easing lockdown measures with the Scottish, Welsh and Northern Irish governments, it’s increasingly clear that there are four different lockdowns across the four nations, each with its own confusing variations between what is law and what is government guidance. These new amendments further muddy the waters.
In England, the new amendment to the Regulations means that the requirement to ‘stay at home’ is officially scrapped – weeks after the government slogan changed to ‘stay alert.’ Instead, it’s now an offence to stay overnight anywhere other than your own home (without a ‘reasonable excuse’). Is there an extra risk associated with overnight rather than daytime social interactions? At what point does the “overnight” curfew start? Sundown? Dusk?
The new lockdown even encroaches upon our most personal space – the home. The amendment creates a new offence, making indoor gatherings of two or more people from different homes illegal.
The combination of the prohibition of both indoor ‘gatherings’ of two people and overnight stays effectively led to a ‘ban on sex’ between non-cohabiting couples.1 Since a person’s work is an exception to this new offence, an individual could have cleaner or builder enter their home, but illogically, not their partner or family member who might live at a separate address. It’s quite extraordinary for Regulations to restrict not only movements in public spaces but inside our homes.
Legal expert David Allen Green called the amendments “barely comprehensible” and “practically unenforceable.”2 The fact that these substantial changes to our private lives has been dictated by a Minister – not approved by parliament – should be of serious concern to us all.
What is ‘local’?
In Wales, the requirement to remain at home has also been scrapped but replaced with a requirement to “stay local.” However, ‘local’ isn’t a precise term. The Welsh Government’s guidance previously defined local as “not a significant distance from home” although admitted that “what is ‘local’ in Cardiff on the one hand, and in mid Wales on the other, could be quite different” and asked people to use “good judgement.”3
Welsh residents now face uncertainty about just how far they can travel. Where there’s uncertainty, there’s scope for arbitrary and unfair policing, with people from different parts of Wales facing different limitations on their movements.
Obey the Regulations… or your boss?
This amendment does mean that people residing in Wales no longer need a justification to be outside of their home, but puts individuals in an unusual position – as of 1st June, the only reason you cannot leave your home is for work or volunteering (if it is “reasonably practical” to work from home).4
It’s unnecessary to put this into law – for many companies, working from home where practical has already been implemented. Moreover, it’s unfair to threaten employees with legal sanctions rather than employers. If a person has been instructed to work outside of their home by their employer, they should not be forced to either refuse to work, potentially risking their job and livelihood, or face criminal sanctions.
What do Welsh MPs think about this? In recent weeks they were able to work from home, but after remote voting was prohibited by the Government many now have to return to work in Westminster – which is certainly not local by any definition. It has been “reasonably practical” for all MPs to work from home for the previous ten weeks. Virtual Parliament has worked well for the most part, with committee meetings and votes continuing as usual. Many MPs have made it clear that the return to Parliament is simply not necessary. Robert Halfon MP told Sky News that he had “done [his] job properly every day for the last ten weeks at home.”5
Unless an MP is ‘shielding’ for health reasons, they cannot vote by proxy or take part in any Chambers business virtually, not even if they have to travel a long distance to get to Parliament.6 This could place Welsh MPs in difficult position. If they were to travel to London for any business that could still be conducted virtually, this could be interpreted as unnecessary. If so, would they be violating the Welsh Regulations?
Law? Or just guidance?
In Scotland, the new amendment to the Regulations allows for two households to meet for recreation or exercise. There’s no limit in the Regulations as to how far people may travel, or how many people this two-household gathering may consist of. However, when announcing the new measures, the Scottish First Minister Nicola Sturgeon said travelling for exercise and recreation would be allowed “to a location near your local community (…) our strong advice is not to travel further than five miles.”7 She also stated in the press briefing that groups meeting “should be a maximum of eight.” These restrictions haven’t written into law, despite it being widely reported as such.
It must be made explicit to the public what is and what isn’t a legal requirement. It’s extremely apparent just how damaging the lack of clarity surrounding law and guidance can be. In a House of Lords debate on the Regulations, Lord Beith warned:
“(…) from Ministers to police constables, people exercising authority must distinguish clearly between what the law requires and what is simply guidance (…) Otherwise, habits that would be damaging to our freedom and liberty will persist beyond this dreadful epidemic.”
It’s the duty of administrations across the UK to it make it explicit what the public can and cannot do, especially as divergence between the four nations continues.
The new normal?
Even more concerning, the new amendment removes all reference to the “emergency period” limit on these powers. The Scottish Government must still review the powers in the Regulations every 21 days – but by removing all references to an “emergency period”, the Scottish Government risks normalising these extreme curtailments of liberty.
When challenged about this significant widening of the Regulations by Adam Tomkins MSP at Holyrood’s Covid-19 committee, Michael Russel MSP, whose name in which the amendments were made, admitted that he “unaware” of this change.8 It’s unacceptable for a Minister to not be aware of the content of his own legislation, even more so when the legislation represents a serious widening of Government powers.
These new amendments are filled with flaws and create bizarre offences – ones which have a very real impact on our daily lives. It’s hardly surprisingly that these new rules are so inconsistent when they have been passed without proper scrutiny. It’s not good enough for the Government to say that the current public health crisis gives them leave to rush through poorly drafted laws. It’s essential that all new amendments are debated by Parliament before they are passed – this is no time to suspend democracy.
By Madeleine Stone
1. Coronavirus: New lockdown laws in England make it illegal for couples living apart to have sex indoors – Lizzie Dearden, The Independent, 1st June 2020: https://www.independent.co.uk/news/uk/homenews/coronavirus-sex-lockdown-law-couples-indoors-england-a9542171.html
2. David Allen Green, Twitter, 2nd June 2020: https://twitter.com/davidallengreen/status/1267757626865192960?s=20
3. Coronavirus regulations: frequently asked questions – Welsh Government, 21st May 2020: https://gov.wales/coronavirus-regulations-guidance#content
4. The Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 5) Regulations 2020, para 4
5. Tamara Cohen, Sky News, Twitter, 2nd June 2020: https://twitter.com/tamcohen/status/1267767601230417922?s=20
6. Speaker letter on virtual proceedings– Sir Lindsay Hoyle, 5th June 2020: https://www.parliament.uk/business/news/2020/june/speaker-letter-on-virtual-proceedings/
7. First Scottish Minister Nicola Sturgeon, Daily press briefing, 28th May 2020: https://www.bbc.com/news/uk-scotland-52819189
8. SNP minister ‘unaware’ of content of regulations made in his name – Tom Gordon, The Herald, 3rd June 2020: https://www.heraldscotland.com/news/18492905.coronavirus-snp-minister-unware-content-regulations-made-name/