This blog examines the problems that can arise when Parliament chooses to regulate conduct in an open-textured manner
2 June 2020
Author: Rudi Fortson QC, Visiting Professor of Law, Queen Mary University of London; Barrister at 25 Bedford Row, London
The heated public debate over whether or not a senior political adviser “broke the rules” under the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350)) is a powerful example of the problems that can arise when Parliament chooses to regulate conduct in an open-textured manner and creates offences the elements of which include expressions such as “reasonable excuse” where the boundaries of blame are not fixed by law or by generally accepted standards.
Without an appreciation of what the regulations actually provide, it is perhaps understandable that some people have complained of being “taken for mugs” when – as they see it – rules are being interpreted generously for some persons but narrowly and prescriptively for everyone else. However, allegations and opinions that someone has “broken the rules” need to be voiced with care. Other than in cases where a person admits their guilt, it is the court that will be the ultimate arbiter of whether or not an offence has been committed under the 2020 regulations.
The regulations came into force on 26 March, revoking SI 2020/327 which had required specified businesses to close on 21 March. The latter came into force at speed: two days before the Instrument was laid before Parliament.
Between 26 March and 1 June, regulation 6(1) provided that “no person may leave or be outside of the place where they are living without reasonable excuse”. A contravention of that requirement was an offence (reg. 9). The words “or be outside of” had been inserted by reg. 2(4)(a), SI 2020/447 (in force from 22 April) as a clarifying provision.
Most members of the public knew that they were legally ‘permitted’ to seek medical assistance, or to go to work when it was not possible to work from home (reg.6). But few people probably realised that the category of “reasonable excuse[s]” (in reg.6(2)) is not closed. Accordingly, it was open to anyone to establish a reasonable excuse for needing to leave their home notwithstanding that their circumstances were not specifically described in the regulations.
But there is a twist. The regulations made it an offence for a person to fail to comply with a constable’s direction to return home if the direction was a necessary and proportionate means of ensuring compliance with regulation 6(1) (regs.9, 8(3), (8)). In this situation, the constable had to consider whether the person’s circumstances constituted a “reasonable excuse” or not.
The regulations were amended on 12 May 2020 (in force on the 13th) adding further reasonable excuses to regulation 6, including visiting a public open space for the purposes of open-air recreation in order to promote a person's physical or mental health or emotional well-being. The person had to be, (i) alone, (ii) with one or more members of their household, or (iii) with one member of another household. Visiting private land, for the same reasons, was not specified to be a “reasonable excuse” (reg.6(2)(ba), as it then existed). But, even in this situation, much would surely depend on the circumstances of a given case. For example, in Alan Bennett’s play and film ‘Lady in the Van’, would it really have been a breach of regulation 6(1) had the lady rushed into the house at Gloucester Crescent to use the lavatory, or had popped into the garden to improve her mental health and emotional well-being? Only a court could answer such questions definitively: different courts might reach different answers. The householder could not be a principal offender in the first degree because he or she did not leave the house. Liability would therefore depend on whether or not the householder aided, abetted, counselled or procured the commission of an offence by the lady. But if the lady had a "reasonable excuse" then neither she nor the householder would have breached regulation 6(1).
The regulations were further amended on 31 May (in force 1 June) replacing regulation 6 and changing the prohibition to staying overnight in a place other than where a person lives, without reasonable excuse. Regulation 6(2) again specifies a list of reasonable excuses. Regulation 7 (restriction on gatherings) has also been replaced. Particular businesses are added to Part 2 to schedule 2, requiring them to remain closed, including social clubs (23A), model villages (23B), aquariums, zoos, and safari parks (23C). But, other activities are now permitted, for example, water sports, stables, shooting and archery venues, golf courses and driving ranges, and outdoor markets (Sch.2, Part 3).
Legal rules need to be clear and certain if they are to be for the benefit of all, apply to all, and be enforced correctly and consistently. As for legal certainty, this has been described as “a foundation stone of the administration of justice and the rule of law” (per the Lord Chief Justice, R v Barton and Anor  EWCA Crim 575, at ; and noting art.7, ECHR). However, in practice, legal certainty is rarely stable. Given the speed at which the Coronavirus Act 2020 and the Regulations were introduced (as well as regulations applicable in the other jurisdictions of the UK) it was perhaps inevitable that errors of interpretation and enforcement would occur – especially as the English regulations have been amended three times in nine weeks (at the time of writing). Such errors are not all due to statutory drafting. In the media and in the public consciousness, the expressions ‘essential travel’, ‘social distancing’, and ‘two metres’ have been dominant - even though none of those expressions exist in the regulations. Media reporting and casual discussions have conflated “guidelines” with “rules” – erroneously treating both as if they had the force of law. Although ‘sound-bites’, such as “you must not”, may be effective in reinforcing policy messages, they may also distort or go beyond the statutory language that is actually employed.
Little wonder the public are confused.