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*No one should conclude from anything that follows that they may, or should, disregard the rules or guidance on staying at home.*
There is growing legal debate on whether the regulations which give effect to the lockdown are lawful. An attempt to explain that debate follows.
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There is growing legal debate on whether the regulations which give effect to the lockdown are lawful. An attempt to explain that debate follows.
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The regulations provide, among other things, that no person may leave home without reasonable excuse. They also restrict gatherings of more than two people from different households. Breaking these rules is an offence punishable by a fine.
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These rules were enacted by the government, not parliament, after MPs rose for Easter recess, under powers in the Public Health (Control of Disease) Act 1984.
The legal issue, in a nutshell, is whether that Act actually gives the government the power to do what it has done.
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The legal issue, in a nutshell, is whether that Act actually gives the government the power to do what it has done.
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First, some orientation. s45C gives the minister the power to make these regs, which can include any "special restriction or requirement" (SRR). An SRR is an order which can be imposed by magistrates under other bits of the Act.
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When a mag imposes an SRR, it can do any of the below to a person ("P") or "group of persons" who "may be infected".
When a minister imposes an SRR, it *cannot* do anything in (a)-(d). So no orders for isolation [(d)], but orders restricting movement/contact are OK [(j)].
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![When a mag imposes an SRR, it can do any of the below to a person ("P") or "group of persons" who "may be infected".When a minister imposes an SRR, it *cannot* do anything in (a)-(d). So no orders for isolation [(d)], but orders restricting movement/contact are OK [(j)].5/](https://pbs.twimg.com/media/EU_ZRspWsAEw_6a.png "When a mag imposes an SRR, it can do any of the below to a person (\"P\") or \"group of persons\" who \"may be infected\".When a minister imposes an SRR, it *cannot* do anything in (a)-(d). So no orders for isolation [(d)], but orders restricting movement/contact are OK [(j)].5/")
When a minister imposes an SRR, it *cannot* do anything in (a)-(d). So no orders for isolation [(d)], but orders restricting movement/contact are OK [(j)].
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In this blog, @RobertCraig3 argues the regs are unlawful.
I hope he doesn't mind me summarising his reasoning as follows.
6/ https://ukhumanrightsblog.com/2020/04/06/lockdown-a-response-to-professor-king-robert-craig/
I hope he doesn't mind me summarising his reasoning as follows.
6/ https://ukhumanrightsblog.com/2020/04/06/lockdown-a-response-to-professor-king-robert-craig/
Craig argues:
1) The powers are to place restrictions those who may be infected. But these regs restrict *everyone*.
2) Though there's a power to restrict movement of "groups" of persons who may be infected, the entire population can't realistically be described as such.
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1) The powers are to place restrictions those who may be infected. But these regs restrict *everyone*.
2) Though there's a power to restrict movement of "groups" of persons who may be infected, the entire population can't realistically be described as such.
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3) If there were any ambiguity in the reg, it would have to be resolved according to the principle laid down by the House of Lords in the case of R (Simms) v SSHD, that "fundamental rights [such as the right to liberty] cannot be overridden by general or ambiguous words".
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Lord Anderson ( @bricksilk) also poses 2 hard Qs for the gvt.
1) If the mags couldn't make an order over the whole population, why can the minister?
2) Isn't this, really, *more* than a mere restriction on where people go/whom they have contact with?
9/ https://www.daqc.co.uk/2020/03/26/can-we-be-forced-to-stay-at-home/
1) If the mags couldn't make an order over the whole population, why can the minister?
2) Isn't this, really, *more* than a mere restriction on where people go/whom they have contact with?
9/ https://www.daqc.co.uk/2020/03/26/can-we-be-forced-to-stay-at-home/
In this article, @TomRHickman et al also question the regs' legality.
In uber-summary, they argue:
1) the regs purport to authorise what would otherwise amount to false imprisonment/trespass to the person
2) Parlt can only do that with clear words
10/ https://coronavirus.blackstonechambers.com/coronavirus-and-civil-liberties-uk/#_edn4
In uber-summary, they argue:
1) the regs purport to authorise what would otherwise amount to false imprisonment/trespass to the person
2) Parlt can only do that with clear words
10/ https://coronavirus.blackstonechambers.com/coronavirus-and-civil-liberties-uk/#_edn4
3) The 1984 Act doesn't expressly, or by necessary implication, authorise confinement
4) Tho' courts may interpret law differently in times of crisis to enable confinement, the issue is that parlt doesn't seem to have contemplated the parent Act being used for this purpose.
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4) Tho' courts may interpret law differently in times of crisis to enable confinement, the issue is that parlt doesn't seem to have contemplated the parent Act being used for this purpose.
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The legality of the regs is defended by @jeff_a_king. He argues
(1) The Act empowers to ministers to make provision "generally"
(2) The power re movement/contact is enough...
12/ https://ukconstitutionallaw.org/2020/04/01/jeff-king-the-lockdown-is-lawful/
(1) The Act empowers to ministers to make provision "generally"
(2) The power re movement/contact is enough...
12/ https://ukconstitutionallaw.org/2020/04/01/jeff-king-the-lockdown-is-lawful/
(3) The whole point of giving ministers this power is so they can respond to problems for which mags proceedings are unsuited
(4) The gvt in 2008 said that the new powers would "enable a quick response to new/unknown diseases"and recognised that this could infringe liberties.
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(4) The gvt in 2008 said that the new powers would "enable a quick response to new/unknown diseases"and recognised that this could infringe liberties.
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Gvt has to review these regs in the coming days. Ministers ought to be thinking hard about (a) whether any changes to the regs are required to make them lawful, (b) in any event, getting parliament's backing for these measures.
In the meantime, *still follow the rules*.
/ends
In the meantime, *still follow the rules*.
/ends
