May 15, 2020

It’s hard not to feel a degree of sympathy for the parliamentary draftsman whose desk the Coronavirus Regulations job landed on. The Explanatory Memorandum to Wednesday’s amending Statutory Instrument naturally offers more by way of obfuscation than explanation. But there, slipped in on page four after some guff about how “these amendments respond to new issues, including around ensuring key services remain open…”,  is that a subtle attempt at exculpation?

“The new measures”, the author continues, “also include a number of small relaxations of the restrictions, whilst encouraging continued compliance, aligned with the Prime Minister’s plan, set out on Sunday 10th May”. In other words, “Boris blathered on about sunbathing the other day and Muggins here has had to do his best.”

Because many of the promised changes aren’t changes at all, and others have been left to languish in the “guidance”, unenacted. This time round, having had six weeks to think about it, they’ve really put the sham into the shambles. Indeed, as part of this much-heralded “relaxation” of the lockdown, not only has the cost of a fixed penalty notice nearly doubled but, for reasons I’ll 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 “need” to take exercise with one member of another household. But that’s 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 other’s company, you would have committed no offence.

There has also been a lot of chatter about “getting people back to work” of course. But what changes have been made to the “reasonable excuse” exception that says you can leave home to work, if you can’t work at home? Not a comma.

What about driving long distances? The Government’s 60-page “Our Plan to Rebuild” guidance, released on Monday, informs us that “People may drive to outdoor spaces irrespective of distance”. But there’s nothing about driving in any of the Regulations, amended or unamended. If rural police look askance at your claim to “need” to drive a hundred miles to a National Park you won’t be able to point to any law that corrects them. Boris said so did he, sir? Boris says a lot of things, sir.

Yes, there’s a new provision, at Regulation 6(2)(ba), that says we have a reasonable excuse if we need to (still “need to”, note) “visit a public open space for the purposes of open-air recreation to promote physical or mental health or emotional wellbeing”. 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 “emotional wellbeing”.

What is “recreation” 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 we’ll just to have to rely on the police and PCSOs to deploy their new powers of force against those they “consider” — rightly or wrongly — to be in breach of these rules with the same even-handedness and sense of proportion they’ve all demonstrated over the last six weeks.

The amendment could have just said that, subject to the rules against gathering in groups, it’s 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 it’s a similar story with the other minor amendments to the list of prescribed “reasonable excuses”: using a rubbish dump, collecting goods you’ve 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 it’s exhaustive. It was said in 1970, in the nicely named House of Lords case of Sweet v Parsley, “It 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 adopted”. There really is no doubt that there’s room for other, off-list reasonable excuses. But you can bet your last gigabyte that many a police officer or Magistrate won’t 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, “includes but is not limited to” 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 “outdoor sports courts” 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 — which these Statutory Instruments have not had — would be a welcome development next time round.