X Close

Lockdown ‘relaxation’ is nothing of the sort Boris's latest regulations tighten restrictions rather than loosening them

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

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


May 15, 2020   4 mins

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.


Adam King is a criminal barrister at QEB Hollis Whiteman.

adamhpking

Join the discussion


Join like minded readers that support our journalism by becoming a paid subscriber


To join the discussion in the comments, become a paid subscriber.

Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.

Subscribe
Subscribe
Notify of
guest

18 Comments
Most Voted
Newest Oldest
Inline Feedbacks
View all comments
William MacDougall
William MacDougall
4 years ago

Plus you should also mention the biggest increase in restrictions of all: the 14 day quarantine on people entering the country, a restriction apparently planned to continue for months even a year. How can British restaurants and hotels ever recover with such a rule? How can British business compete internationally if businessmen can’t travel in or out? And why should my freedom to take a holiday in countries with less problems with Coronavirus than Britain by restricted at our end at all???

philip.davies31
philip.davies31
4 years ago

!?

Phil Carsley
Phil Carsley
4 years ago

How? You ask. The answer is simple. If the government (uses term loosely) persist with such ridiculous policies, businesses cannot and will not recover. The irony is that other European countries should be quarantining us, not the other way round, their infection rates apparently being so much better than ours.
Some European economies rely hugely on tourism, so much so that any curtailment would be catastrophic. They are likely fully aware and will welcome a u turn on the silly quarantine policy, which even the home office admit is pointless and unenforceable.

Johnny Norfolk
Johnny Norfolk
4 years ago

and still the intake continues at airports and the English Channel

Ray Hall
Ray Hall
4 years ago
Reply to  Johnny Norfolk

Look , are you suggesting that we copy more successful countries such as South Korea or Taiwan or New Zealand or Germany where they made unbritish attempts to to protect their own populations ???

William MacDougall
William MacDougall
4 years ago
Reply to  Johnny Norfolk

So what? 3-4 months ago quarantines on arrivals might have made a difference, but now the affect on the spread of the disease is trivial; it’s already spread too far among the domestic population.

Phil Carsley
Phil Carsley
4 years ago

Exactly, there is no point introducing quarantine when the virus is in serious decline, as it clears is. Growing scientific consensus says that the peak occurred some time in mid April. From the very beginning, people from all over the world, including Wuhan were arriving at Heathrow completely unchecked. More recently we have Border Force effectively providing a taxi service for illegal immigrants coming in from who knows where.
Utter insanity, at least it would be unless done deliberately.

Dave Smith
Dave Smith
4 years ago

Some say Boris is a libertarian at heart. Not as far as i can tell. Microchip the entire population and have done with it.
Imagine the future.
” Citizen365666PLO. You are 500 metres outside your daily limit of walk. Report for punishment squad. “
They have the technology all they lack is the excuse.

philip.davies31
philip.davies31
4 years ago
Reply to  Dave Smith

!? Why am I banned?

philip.davies31
philip.davies31
4 years ago
Reply to  Dave Smith

The radically precautionary principle adopted by the Government was consciously based on the ‘worst case scenario.’ This was emphatically not because they were risk-averse on behalf of the general population. For a start infection was running wild for months before any action was deemed necessary, and the best evidence by now is that the first wave was ending before lockdown was instigated. Furthermore, disregarding the obviously most vulnerable target of the coronavirus, which is people in care homes and the elderly and disabled or frail living alone and/or in need of regular clinical care, politics decreed that ‘the NHS must be protected’ – the government being obviously nervous of it’s collapse after years of unwise cost-cutting and misguided spending decisions. This extreme quarantining of the robust and healthy members of the population, rather than concentrating resources on the most vulnerable and simply allowing the general ‘herd’ to develop a healthy immunity, has profound negative consequences, not alone for the wider health of the nation, but also for this country’s ability to earn a decent living: Both medicine and economics dictate this.

The government’s only motivation, from the start of this epidemic in the UK, has been to save it’s own face under a medically dubious mask of urgent concern for our welfare. All the costs, which will be borne by us – both taxpayers and the newly jobless – , which are going to impoverish this nation for generations, will be expediently but speciously blamed on the Coronavirus. The reality is that under a deceiving mask our bandit government has robbed us of our future: More people will have lost a decent living from this government’s face-saving than would have died without a general house-arrest.

It was the moment this disease became political that it became fatal to our freedom; this Lockdown is to remain on the statutes until government decides it is expedient to lift it – and decides when thereafter at any time it may be equally expedient to shut the country down again. Medicine speaks of the coronavirus being with us forever like the common cold; But Politics warns us that public health will in future be a matter to be principally addressed by the law and policing, rather than by medical necessity and the now largely sidelined and under-resourced clinical personnel. The science will be selected to suit the political occasion; and it will always be the judgement of the scientist who is the proponent of the ‘worst case scenario’ who is cited.

By far the most threatening sickness that besets us is a degenerate Politics of profound suspicion and contempt and fear of the populace. The insecurity of a governing class aware of their now all-too-obvious technical incompetence at running our national affairs has mortgaged the country’s wealth and well-being to their own survival and personal prosperity.

And they think their criminal duplicity can be covered by the home-made mask that only identifies their dishonesty! And God knows what noxious drugs they’ll force us to be shot-up with to keep us scared enough and grateful enough to let them get away with what is probably the greatest theft of our lives since the days of feudal slavery.

The ‘New Normal’ has been planned out for us in detail as an impoverished, overworked and despised Helotry, powerless and miserable unless we agree to collaborate with the new ‘Health Dictatorship,’ who will demand our absolute obedience, in body and soul, and all for our own good of course. Lockdown is being enforced arbitrarily by a State Police let off the leash, to persecute us, by the deliberately vague terms of the legislation (as detailed in the article). These are all the signs of Dictatorship. The new slogan of this odious regime might well be a version of the absurd bullying nonsense lately being shouted by State Police: ‘Go home – you’re killing people!’

Something like, ‘You are a social disease: ISOLATE!.’ But it’s no laughing matter.

The appalling outcome of this virus, so strangely opportune for a governing class increasingly disconnected from the demos, which it represents less and less, is the most deadly serious crisis in modern history. I fear most of us can’t even imagine how horrible life in this country is going to be from now on.

philip.davies31
philip.davies31
4 years ago

Why am I banned?

Phil Carsley
Phil Carsley
4 years ago

I don’t want to appear conspiratorial but there may be some truth in the plan for global government, new world order, whatever you choose to call it. They’ve tried Islamic terrorism, global warming and financial crises, all have failed.
Perhaps this new medical dictatorship is the vehicle that will bring this about? We are already encouraged to use an app to “track and trace”, it’s not much of a stretch to imagine progression to an implanted chip, coupled with the obvious attempt to make cash obsolete provide the state with the perfect tool for control.

Phil Carsley
Phil Carsley
4 years ago
Reply to  Dave Smith

I’m inclined to agree. The irony here is that the more ignorant of the population will ask, nay demand such removal of liberty to protect them from the bogeyman they’ve been convinced they need to be protected from. The same narrative has been repeated throughout history – the creation of The Federal Reserve, Hitler’s Enabling Act and Reichstag Decree, Al Qaeda, global warming, all pretexts to convince us to surrender more liberty and permit greater control by the state. “Power corrupts, absolute power corrupts absolutely”

Stan Lester
Stan Lester
4 years ago

This should also be read in conjunction with the updated guidance on the College of Policing web site. I would have thought that the ‘drive… irrespective of distance’ paragraph is as clear as it can reasonably be expected to be.

Adamsson
Adamsson
4 years ago

Just give them a nice smart roman salute and shout “Janwohl Mein Furher!”

Peter White
Peter White
4 years ago

“cemetery”.
Otherwise thank you for this.

Michael Baldwin
Michael Baldwin
4 years ago

Yes, I definitely think that as mentioned above exculpation (evasion of blame, guilt) is what this is all about, and I don’t just mean the law changes, I mean absolutely everything that Boris Johnson has been doing since he and we first heard of the tragic word/phrase covid-19.

Whereas in my view the main statement he should be making is a mea culpa – as I’ll now explain…

(a mea culpa incidentally is a confession/admission of guilt for those who “don’t have the Latin” to do judging, like Peter Cook’s 1960s satirical character in the famous sketch).

Because though I do concur that obfuscation is what the government is up to at present in its legal outpourings, and yes, most definitely in its own best interests, it goes far beyond just its legal output.

I would quickly point out incidentally that this deliberate vagueness that the government has been using – deliberately blurring the distinction between what it is law, so can be enforced, and what is merely what the government would like us to do, but chooses (for exculpation motives again, I would suggest) not to make law, but lets the police enforce anyway as if it was law, and leaves the public afraid, so mostly compliant, as they don’t know what the law is either – may actually be starting to backfire on them.

https://www.standard.co.uk/

As according to the Evening Standard since the new measures were announced, the Police College (whether rightly or wrongly) has issued a statement to its officer members saying they have no legal powers to enforce the 2 metre distance rule, which of course is at the heart of the lockdown.

So this suggests the police are starting to rebel against the government for this vagueness, which puts them on the front line, and risks serious problems for them in policing what they are not sure they are justified in doing, so are more or less threatening it appears to refuse to police this matter at all, unless they get much clearer guidance, backed by clearer laws.

So the public are confused, the police are confused, the civil servants drafting the legal documents are probably confused, and so it goes on, and as actually the responsibility for all that is happening is Mr Johnson’s, as with honest and responsible government, the “buck” (or pound sterling, but not likely Euro we can now assume) stops with him, we would have to presume Mr Johnson is being deliberately confusing, or possibly is even very confused himself.

My money is on the latter.

But as I said, the obfuscation that is far more serious than these woolly rules and regulations is that the 50 page document issued this week telling us what’s going on and what we’re supposed to do, alleges that a survey has been carried out on 7,087 English citizens that claims only 0.24% tested positive for coronavirus, which when extrapolated to the roughly 56 million England population works out at about 136,000 infected (hence their figure).

We already had an official UK figure of 225,000 roughly infected, and at that point about 32,000 dead.

I do not believe the infected figure produced by this survey to be even remotely accurate, and it is interesting to note (this is all in Section 1 of the document) that this 136,000 figure has a very prominent disclaimer on it, muttering something about it being unreliable, as to it being “early days” in the testing process.

But this 136,000 figure has massive policy and indeed political consequences.

Because it says that hardly anybody has yet got infected, it’s only less than 1/4 % in England, which firstly says the lockdown has worked (hurray Mr Johnson!” you see, is the idea, he saved us all with the lockdown you see) and secondly, that as this claims hardly anybody has got it yet, it justifies a continued lockdown.

Whereas if the truth is as many suspect (largely as it is believed this virus was around for a long time before the lockdown) millions already have it, then it firstly renders the lockdown pointless and already failed.

And secondly it shows the virus is nowhere near as deadly as claimed, because if millions have it and only 32,000 or so are dead, that makes only a tiny percentage dying of it.

So once again, this does not justify the lockdown, nor the massive social, health and economic damage that has already resulted and is going to result from it.

And quite frankly the figures don’t make any sense any way you look at them.

e.g. as we are told up to 80% of those infected won’t have any or only mild symptoms that says the roughly 2.2 million tested in the UK before the alleged mass and thus near random testing (you know, the 100,000 a day being claimed) was rolled out, of which roughly 225,000 were found to be infected, only likely accounted for about 20% of those infected, as most of that only that 20% would have been tested as having had serious symptoms.

So that says there should/must be another 80% not tested, but either without symptoms or ones so mild they didn’t need to go to a hospital and so get tested.

So that would then be 4 x 225,000 (as 4 x 20% = 80%) which is about 900,000 infected.

So adding on the officially infected 225,000 (this is the UK, not England for which the 136,000 figure was given), so that would be at least 1.1 million infected in total for the whole UK.

Which is about 900,000 for England (where the survey was done only) which is about 7 times what the survey is suggesting.

So primary school arithmetic and simple logic suggests this 136,000 and 0.24% infected in England figure is either an outright lie or the result of seriously botched testing.

And as I’ve explained the political motivation for it is enormous, because if the truth is as I and many top world experts have claimed – then this lockdown is exposed as an enormous blunder and failure, and covid-19 as nowhere near dangerous as is claimed.

Which prima facie appears to be the case even officially, as we have long been told it is only a serious threat to those either in old age or with serious underlying health conditions or both.

So anyway you look at this, it is just madness, full of contradictions.

And so as I said, I believe the exculpation that is at the heart of this lockdown policy , is simply a political manoeuvre by Mr Johnson to save his own skin.

Because the world public and other governments had been convinced by the news (in my view propaganda) coming from China that there was a deadly disease on the loose, so demanded lockdowns like China.

And so Mr Johnson initially unwillingly complied with the demands, and now has to pretend this deadly contagion was real – though nobody is doubting it’s like a bad season of flu in its mortality rate, but there’s no proof that it is anything worse – and now he’s got the awful problem of trying to persuade a public which still falsely believes their lives are at risk, to go back to work and normality.

With unions breathing down his neck protesting their workers’ lives are in danger, etc, etc.

Maybe Mr Johnson even himself believed this was a deadly virus to begin with.

But let’s go back to the statistic he’s just put out that says only 0.24% – that’s less than 1 in 400 of the population have been infected.

And let’s remind ourselves that he himself claims to have been not only infected, but so badly affected he had to be hospitalised, which also defies probability, as he is well under 60 and in robust health.

So will the truth ever come out?

I am as yet uncertain, but if I am right (and far from alone in this belief, numerous scientists support it) then it is hard to believe a cover up this massive can be permanently covered up.

Hence the need I think for at some stage a mea culpa – for surely the time has come for leaders or governments to learn to say “sorry”, and admit they are, or were, simply not up to the job.

For the damage Mr Johnson has done by approving and indeed ordering this lockdown is almost certain to be far greater, by many orders of magnitude, than what would have happened had he not done it, as the Sweden example, who has less deaths per million than the UK, seems to clearly prove.

Nick Rogers
Nick Rogers
4 years ago

Tinfoil hat mate?