Can we take the Tube, or not? Credit: Isabel Infantes / AFP via Getty

Itâs hard not to feel a degree of sympathy for the parliamentary draftsman whose desk the Coronavirus Regulations job landed on. The Explanatory Memorandum to Wednesdayâs amending Statutory Instrument naturally offers more by way of obfuscation than explanation. But there, slipped in on page four after some guff about how âthese amendments respond to new issues, including around ensuring key services remain openâŚâ,  is that a subtle attempt at exculpation?
âThe new measuresâ, the author continues, âalso include a number of small relaxations of the restrictions, whilst encouraging continued compliance, aligned with the Prime Ministerâs plan, set out on Sunday 10th Mayâ. In other words, âBoris blathered on about sunbathing the other day and Muggins here has had to do his best.â
Because many of the promised changes arenât changes at all, and others have been left to languish in the âguidanceâ, unenacted. This time round, having had six weeks to think about it, theyâve really put the sham into the shambles. Indeed, as part of this much-heralded ârelaxationâ of the lockdown, not only has the cost of a fixed penalty notice nearly doubled but, for reasons Iâll explain, the way the list of reasonable excuses has been altered could have the effect of tightening the restrictions rather than loosening them.
First though, does the new version of the Regulations allow us to meet up with friends and family? Not really. Little more than we could last week, is the truth of it. Regulation 6(2)(b) has been amended to say that we can now be outside our homes if we have a âneedâ to take exercise with one member of another household. But thatâs always been the position. The unaltered Regulation 7 only prohibits gatherings of more than two people of different households. So if last week you and your friend from another household each had a need to take exercise, and arranged to do so at the same time, and in each otherâs company, you would have committed no offence.
There has also been a lot of chatter about âgetting people back to workâ of course. But what changes have been made to the âreasonable excuseâ exception that says you can leave home to work, if you canât work at home? Not a comma.
What about driving long distances? The Governmentâs 60-page âOur Plan to Rebuildâ guidance, released on Monday, informs us that âPeople may drive to outdoor spaces irrespective of distanceâ. But thereâs nothing about driving in any of the Regulations, amended or unamended. If rural police look askance at your claim to âneedâ to drive a hundred miles to a National Park you wonât be able to point to any law that corrects them. Boris said so did he, sir? Boris says a lot of things, sir.
Yes, thereâs a new provision, at Regulation 6(2)(ba), that says we have a reasonable excuse if we need to (still âneed toâ, note) âvisit a public open space for the purposes of open-air recreation to promote physical or mental health or emotional wellbeingâ. So we can now sit down outdoors for longer periods than would have been justifiable as a mere break during exercise. As long as we need to, for recreation, to promote health or âemotional wellbeingâ.
What is ârecreationâ anyway? Most dictionaries, and the one or two appeal reports where judges have considered the term, suggest it requires some sort of enjoyable activity. Does getting smashed and shouting at someone down the phone count? Maybe. Maybe not. It remains a fairly popular activity in these unprecedented times but weâll just to have to rely on the police and PCSOs to deploy their new powers of force against those they âconsiderâ â rightly or wrongly â to be in breach of these rules with the same even-handedness and sense of proportion theyâve all demonstrated over the last six weeks.
The amendment could have just said that, subject to the rules against gathering in groups, itâs a reasonable excuse to visit an open space, and left it at that. But vagueness and ambiguity tend to operate to the advantage of those who set and enforce the rules. So vagueness and ambiguity it is.
And itâs a similar story with the other minor amendments to the list of prescribed âreasonable excusesâ: using a rubbish dump, collecting goods youâve ordered, visiting a cemetry to pay respects (these three are all new), doing various things in connection with moving house, and dealing with money (these last two were already on the list but are now more carefully circumscribed).
Adding things to this non-exhaustive list of reasonable excuses might appear to be helpful and expansive, but it has the effect of making the list look more like itâs exhaustive. It was said in 1970, in the nicely named House of Lords case of Sweet v Parsley, âIt is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adoptedâ. There really is no doubt that thereâs room for other, off-list reasonable excuses. But you can bet your last gigabyte that many a police officer or Magistrate wonât see it that way. And the longer the list, and the more detailed the items on it, the more likely the ambiguity will be resolved to our disadvantage. They could have said, âincludes but is not limited toâ of course, like so many other laws do. But instead they kept it vague.
So yes, we can shuffle round Garden Centres again, and even have a game of tennis on one of the âoutdoor sports courtsâ that have been allowed to re-open. These gifts will be welcomed by many, of course. But the restrictions on our liberty have changed much less than recent press conferences have sought to imply, and ambiguities still abound. Proper parliamentary scrutiny of the lockdown laws â which these Statutory Instruments have not had â would be a welcome development next time round.
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