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IDLP BLOG -20 April 2020


One of the challenges of a democratic government is making sure that even in the midst of emergencies and passions the rule of law and the basic precepts of justice and liberty prevail.”
Barak Obama

We are now all (too) familiar with the daily coronavirus briefings from Downing Street, usually with a senior government minister flanked, at a safe distance, by public health and medical boffins. The consistent message is “stay at home” and if you have to go out, then maintain the conventional social distancing rule of two metres from others who are not part of your own household. We now know that there is to be no relaxation of the applicable restrictions for another three weeks after 16 April. What happens after that is anyone’s guess, but it must be pretty plain that a sudden and complete lifting of the restrictions after that is out of the question.

At least we have a Brexit strategy. But we do not appear to have an “exit” strategy!

The daily briefings offer opportunities for representatives of the media to ask awkward questions in an apparent effort to catch out any unguarded remark or comment. These briefings are, of course, replicated by similar briefings by the Scottish Government. One of the most striking aspects of these exchanges is that UK government representatives were, initially at least, astute to avoid using the expression “lock-down” to describe the effects of what it has been recommending and which it now has powers to enforce. Regrettably, that has not been true of statements made by Scotland’s First Minister, Nicola Sturgeon, who has, from the outset, employed the expression almost as freely as in the news media. It is regrettable, because the word is replete with journalistic connotations and serves to convey a wrong impression of the restrictions on daily life that are in some way affecting every person and business in this country.

But that is only the tip of the misinformation iceberg.

Complaints have been raised in a number of quarters about uncertainties and inconsistencies in the official messages. Precisely what can and what can we not do? Once again Ms Sturgeon comes to the fore. At the same time (on Monday 23 March) as Matt Hancock was answering a press question saying that if you cannot work from home you should go to work, Ms Sturgeon was making a statement to the Holyrood Parliament to the effect that you must stay at home unless you are engaged in essential work, which she then defined as meaning work in the health sector or food chain field.

One of the most frequently-asked questions has come to be whether a business or organisation is engaged in “essential work” because if it is not then it is expected to close. It is believed that this view – which permeates our news media – has resulted in the closure of a large number of businesses and indeed public services, with immense and unforeseen damage to the economy and to the continuity of important public services. Worse, it has apparently filtered through to the actions of the police who are now enthusiastically, it would appear, enforcing the new restrictions.

What may not be fully appreciated is that the restrictions which constitute the greatest restraints on personal freedom this country has even seen, had not even been passed into law at the time – 23 March – when these statements were being made, though ordinary members of the public would be forgiven for thinking that they had been made with full legal authority. Nothing could be further from the truth.

It was only on Wednesday 25 March that the UK Parliament enacted the Coronavirus Act 2020. Save for certain provisions, it came into effect immediately. It was by virtue of provisions contained in this Act that ministers in UK departments of state and in the devolved administrations in Scotland, Wales and Northern Ireland, derived extensive power to deal with public health issues arising as a consequence of the coronavirus outbreak including, in particular, powers having as their object the slowing down of the rate at which the virus was spreading throughout the community.

Following the passage of the Act, emergency regulations were published in England and were brought into force on Thursday 26 March. Likewise, in Scotland virtually identical regulations contained in the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020, came into force at 7.15 pm on Thursday 26 March – one day before the regulations were laid before the Scottish Parliament. It is by virtue – and only by virtue – of these regulations that the certain freedoms habitually enjoyed by the people of Scotland have been substantially curtailed. Importantly, it is also by virtue of these regulations that Police Scotland has powers of enforcement in relation to infringements of the regulations. There is no power for the police to “enforce” for example the social distancing rules that lie at the heart of government guidelines.

This last is a point worth repeating, because of the rather worrying reports that have been coming in from different parts of the UK about the use of police powers. We continue to live under the rule of law and, in principle, there is freedom to do and to act only unless and to the extent that that freedom has been curtailed by a legally enforceable enactment. In particular, no crime is committed unless the criminal act is specifically prohibited by law. Nulla poena sine lege.

Government ministers do not have the power to make law by announcement, whether in Parliament or otherwise. Nor do they have to power to interpret the law – for under our constitution that is a matter for the courts. Equally, the police are constrained by the law and heaven forbid that they should seek to arrogate to themselves any powers to act in any way that is contrary to or is not specifically authorised by the law.

In order to discover what the law says, one must have regard to and only to what is contained in an Act of Parliament or in subordinate legislation properly made under parliamentary authority.

For further comment please read Part II of this Blog.