It was good to speak to @estwebber for this piece, and it made me think about three different criticisms of the coronavirus regulations which get unhelpfully conflated on Twitter. https://twitter.com/estwebber/status/1306158811393200128

There are, broadly, four criticisms: (1) they are being made in an inappropriate way, bypassing Parliamentary scrutiny; (2) they are bad policy, infringing excessively on individual liberty; (3) they are badly drafted; (4) they are being published too close to taking effect.

(Sorry, I decided a four-way division made more sense than a three-way one for the purposes of this thread. I promise I can actually count.)

(1) I think is clearly right - the lack of Parliamentary scrutiny, even after the fact scrutiny, has become by this stage rather odd, not just in Westminster. (2) is a respectable argument which I have time for but am unconvinced by.

(3) has become something of a sport on Twitter but is I think often misguided, for reasons I’ve set out earlier. https://twitter.com/profchalmers/status/1305784578339155968

In fact, some of (3) actually diminishes the clarity of the law. Minglegate led merely to widespread confusion, with journalists widely reporting that it was now a criminal offence to “mingle” (it isn’t), undermining the clarity of the “rule of six” message.

A lot of the discussion here fails to acknowledge the reality of how criminal laws are communicated to the public. The public communication is the “rule of six”; the regulations tease out exactly how that works. The fraction of the public who will read the regulations is tiny.

As I’ve said before, the correct question is not “what does mingle mean?” It is this: is someone who makes reasonable efforts to comply with the rule of six at risk of being criminalised?

Discussions about the wording of statutory instruments have to acknowledge that 99.99% of people affected by these regulations are never going to look at them and - here’s the key point - shouldn’t *have* to look at them.

This also means that criticism (4) is not quite as straightforward as it appears, because the rule of six itself was communicated clearly and in advance - although the last-minute publication is still undesirable, to say the least.

Criticisms 3-4 also play out differently (but I’ll say no more than that for now) insofar as the regulations are addressed to eg businesses, who are more likely to engage with them and have a role in advising customers and employees on what they can lawfully do. /end