Last night (Thursday 30 July 2020), in a series of tweets, the Secretary of State for Health & Social Care, the Rt Hon Matt Hancock MP, said that an increase in coronavirus cases meant that the government would be imposing a series of restrictions across Greater Manchester, Blackburn with Darwen, Burnley, Hyndburn, Pendle, Rossendale, Bradford, Calderdale, Kirklees and the City of Leicester. The Secretary of State said that the new restrictions would take effect from midnight on Thursday 30 July 2020.
Although there are a variety of ways in which new laws can be introduced, the idea that it can be done via Twitter followed by a series of somewhat contradictory press briefings is nonsense.
It can be anticipated that the Secretary of State intends to exercise his emergency power to make regulations under section 45R of the Public Health (Control of Disease) Act 1984 (this is the statutory power which has been exercised for all of the previous ‘lockdown’ regulations, including most notably those which imposed a local lockdown for Leicester). The regulations must take the form of a statutory instrument (section 45P(1) of the 1984 Act). The statutory instrument must be “made”, which means that a formal legal document must be prepared and signed by the Secretary of State.
The Statutory Instruments Act 1946 provides that a statutory instrument must be sent to the Queen’s Printers immediately after it is made and copies printed and made available for sale as soon as possible (nowadays, the document can be published much more quickly online at www.legislation.gov.uk). Section 3 of the 1946 Act provides that it is a defence for anyone charged with an offence created by the statutory instrument to prove that the instrument had not been published at the date of the offence, unless it is proven that reasonable steps had been taken to bring the purport of the instrument to the public’s attention.
This is an important rule. As a matter of basic fairness, we citizens should not be penalised for breaking a law with which we could not possibly have acquainted ourselves. The need for laws to be properly promulgated (i.e. publicised) is both a facet of the common law concept of the rule of law and a requirement of the European Convention on Human Rights.
We do not consider that the government’s public statements on the new law are sufficient to bring the purport of the instrument to the public’s attention. It is especially important, in the context of criminal legislation, for the government to give a clear message about what will and will not amount to criminal conduct. The widespread confusion across the media today (both mainstream and social) amply demonstrates that the government has not done so.
In principle, it is possible for the Secretary of State to make a statutory instrument having retrospective effect. In other words, it would be possible for an instrument made on, say, 1 August 2020, to criminalise conduct occurring after midnight on 30 July 2020. This, however, would fly in the face of the principles outlined above and would make the statutory instrument highly vulnerable to legal challenge by way of judicial review.
As of midday on 31 July 2020, no statutory instrument has been published. Realistically, it is highly unlikely that any new law will come into force before midnight on 31 July 2020. We consider that anyone charged with an offence in relation to conduct on 31 July 2020 is likely to have a good defence.
As of 9am on 1 August 2020, no statutory instrument has yet been published for Greater Manchester, Burnley, Hyndburn, Pendle, Rossendale, Calderdale or Kirklees. This means that realistically, the earliest that any new restrictions can enter into force in these areas will be 2 August 2020.
Regulations have been published for Blackburn with Darwen, Bradford and Leicester. Remarkably, the regulations for Blackburn with Darwen and Bradford bear little resemblance to the laws that the government said it would introduce:
If you live in one of the affected areas, in order to help prevent the spread of coronavirus, you should not:
- meet people you do not live with inside a private home or garden, except where you have formed a support bubble (or for other limited exemptions to be specified in law)
- visit someone else’s home or garden even if they live outside of the affected areas
- socialise with people you do not live with in other indoor public venues – such as pubs, restaurants, cafes, shops, places of worship, community centres, leisure and entertainment venues, or visitor attractions. You may attend these venues with people you live with (or are in a support bubble with), but should avoid interaction with others. If you run such a business, you should take steps to ensure people do not interact with people they do not live with, in line with COVID-19 secure guidance
- visit friends or family in care homes, other than in exceptional circumstances. Care homes should restrict visits to these circumstances
The government will pass new laws to enforce the changes to meeting people in private homes and gardens. The police will be able to take action against those that break these rules, including asking people to disperse and issuing fixed penalty notices (starting at £100 – halving to £50 if paid in the first 14 days – and doubling for subsequent offences).
In contrast, the new regulations for Blackburn with Darwen and Bradford do not introduce any restrictions on movement. The principal restriction, which will be familiar to readers from the national ‘lockdown’ regime, is a prohibition on gatherings of more than 30 people, subject to various exceptions. The regulations do not contain any legal prohibition on meeting others in private homes and gardens, provided of course that no more than 30 people are present in total. It remains to be seen whether the government will introduce further statutory instruments to close this gap.
We do not mean to suggest that the government guidance should be ignored, but it is concerning that once again, the government has failed to communicate and explain the difference between guidance and law.