We are hearing lots about the Health Protection (Coronavirus, Restrictions (England) Regulations 2020 and the restrictions being enforced on the public and business. It is fair to ask are regulations the same as legislation (law)? The media are playing a key role in advancing the regulations, the police are encouraging communities to ‘grass’ on their neighbours under the regulations.
But how lawful are they regulations?
Are working class communities acquiescing our hard fought, civil and human rights, to easily? To understand how the ‘regulations’ have been given enforceable actions, we must look to the parent statue, The Public Health (Control of Disease) Act 1984 and how they interact.
Restrictions on movement are located at Regulation 6, that sets out a number of reasons that a person may leave there home. There is a focus on the term ‘reasonable excuse’
(1) During the emergency period, no person may leave the place where they are living without ‘reasonable excuse’.
The regulations seek to assist by proving a list of non exhaustive list at 6 (2)(1)
(2) For the purposes of paragraph.
(1), a reasonable excuse includes the need (a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money…
What if a person is held to be in breach of the above.
To see what sanctions are being enforced we must look to Regulation 8, which empowers the police and others to forcibly remove people to their homes if they consider them to be in breach.
(3) Where a relevant person considers that a person is outside the place
where they are living in contravention of regulation 6(1), the relevant person may –
(a) direct that person to return to the place where they are living, or (b) remove that person to the place where they are living.
Regulation 10 set out the power to issue a fixed penalty
10.(1) An authorised person may issue a fixed penalty notice to anyone that the authorised person reasonably believes –
(a) has committed an offence under these Regulations; (b) is over the age of
18. There are clearly powers that bring a criminal and financial sanctions. These powers are located at s.45C(4)(d) of the Public Health (Control of Disease) Act 1984, s.45C(4)(d)
(4)The restrictions or requirements mentioned in subsection (3)(c) include in particular—
(d) a special restriction or requirement.
This section permits the Secretary of State to impose a “special restriction or requirement” in response to a public health threat.
The permitted restrictions and requirements are those listed in s.45G(2), which may be imposed by a Justice of the Peace.
45G(2) The order may impose on or in relation to P one or more of the following restrictions or requirements;
(a) that P submit to medical examination;
(b) that P be removed to a hospital or other suitable establishment;
(c) that P be detained in a hospital or other suitable establishment;
(d) that P be kept in isolation or quarantine;
(e) that P be disinfected or decontaminated;
(f) that P wear protective clothing;
(g) that P provide information or answer questions about P’s health or other circumstances;
(h) that P’s health be monitored and the results reported;
(i) that P attend training or advice sessions on how to reduce the risk of infecting or contaminating others;
(j) that P be subject to restrictions on where P goes or with whom P has contact;
(k) that P abstain from working or trading.
(NOTE: P means person)
The above appears to apply to a person not a group of people as set out in the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
It appears essential therefore that we look further at the parent legislation The Public Health (Control of Disease) Act 1984. It appears the closest we can get is section 45J, it states;
Orders in respect of groups
(1) The powers in sections 45G, 45H and 45I include power to make an order in relation to a group of persons, things or premises.
This appears to be if a person encounters a person or a group, therefore creates doubt as to if this can be extended to fit with Regulation 6 of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
There are two pressing issues that appears to create a significant mischief.
1. To apply 45J it would require the population of England to be applied as an individual.
2. The Regulation 6 has been drafted to be much wider in scope as it prohibits ALL movement, except for extremely narrow circumstances.
The impact on personal liberty in Regulation 6 goes right up to the limit of what is permitted under its parent statute, and it is strongly suggested it goes significantly beyond.
Lets turn to consider Regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (see above). Is it clear as to what a ‘reasonable excuse’ so much so that it can be complied with so as not to be held in breach?
Is leaving your house/home to clap for the NHS/CARERS and or to gather in large groups outside hospitals or and at land marks clap for NHS/CARERS to clap on Thursday evening a reasonable excuse?
It maybe that the Regulations 6 and 8 as set out and the apparent inconsistency to the parent legislation, it may amount to imprisonment at common law.
It may be argued that the Regulation 6 and 8 amount to imprisonment at common law involves, as it appears to be an act of the defendant (Government and or police officer, and or PCSO and or Council official) which directly and intentionally (or possibly negligently) causes the confinement of the claimant within an area delimited by the defendant. (In the regulation the place for confinement is the home or house). Is it possible that Regulations 6 and 8 to remove a person to their home amount to false imprisonment and if so, would it also amount to a trespass to the person? The trespass requires a direct or an intentional interference with a person’s body or liberty. There are three main forms of trespass to a person, namely, assault, battery and false imprisonment and their common element is that the wrong must be committed by “direct means”.
It has been argued that for such intrusive and far reaching measures would usually require clear, expressed and unambiguous words within the statute.
A reasonable reading of both statues suggests there are no such words.
Further the Public Health (Control of Disease) Act 1984,at section 45(D)(3) expressly prohibits the Secretary of State from imposing certain restrictions all of which would amount to confinement or a trespass to the person, this vigorously suggest the Act does not sanction restricting the entire population to their homes.
If this is the case, it more than adequately raises the question as to the restriction engaging and being in breach of Article 5 and 7 European Convention on Human Rights, arising from an arbitrary depravation of liberty European Convention on Human Rights.
Article 5 – Right to liberty and security
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
Article 7– No punishment without law
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.
http://www.legislation.gov.uk/uksi/2020/350/pdfs/uksi_20200350_en.pdf