COVID-19 and the law: navigating restrictions, regulations and guidance

In November last year, Baroness Hale gave the annual Romanes Lecture at the University of Oxford on the topic of "Law in a time of crisis". She spoke reassuringly of the United Kingdom's historic record of commitment to the Rule of Law and the valuable protection that UK courts provide individuals in helping to safeguard the balance of power between the executive, the legislature and the judiciary. Throughout periods of peace, war and financial collapse, the courts have consistently sought to protect the rights of individuals by ensuring that legislation is properly interpreted and preventing executive overreach.  

Unfortunately, recent press reports suggest a worrying trend towards an abuse of our individual rights. Numerous individuals and businesses have been receiving fines for alleged offences under the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (the Regulations). Often, the offences they are alleged to have committed are not, in fact, enshrined in law.

Police officers (and a relatively long list of other "relevant persons") ("Officers"), are at the front line when it comes to interpreting and applying the Regulations in the current crisis. This is an unenviable task given the frequency with which the Regulations have been amended (67 times since March 2020), and the complexity of the Regulations themselves. Not only have different rules applied in different areas but there is a long, detailed, and ever changing list of exceptions to the general principle that we should stay at home and limit contact with people outside our bubble.

Legislation is notoriously convoluted and so, in an effort to make the Regulations more accessible and less confusing to the public, the Government has issued detailed Guidance setting out the key dos and don’ts in the current national lockdown. However, whilst the Guidance stipulates that "you must not leave, or be outside of your home except where necessary", and that "you should not travel outside your local area", the restrictions set out in the Regulations are, in fact, far less stringent.

Under the law, there is no prohibition on eating (or drinking) whilst exercising in the Regulations and there is no limit on the number of miles you can travel whilst exercising, or for exercise. By way of example, a marathon runner is permitted to leave her home for a long run that might take her over ten miles from home.  There would be no legal basis for issuing a fine. In fact, Downing Street confirmed last week, after Boris Johnson was seen cycling in a park seven miles from his home, that "the PM has exercised within the Covid rules and any suggestion to the contrary is wrong".

It is clear that the disparity between the Guidance and the Regulations is causing real problems. Not only can it undermine the ability of Officers to minimise the spread of infection by enforcing what they may believe to be the law but, at a time when social cohesion is critical, it creates hostility and mistrust towards Officers and those in Government. The extent of the confusion has been highlighted by the repeated examples of Ministers misquoting the law on both the television and radio.

According to the National Police Chief's Counsel, by 21 December 2020 over 32,000 FPNs had been issued for breaches of the Regulations. There have been very few legal challenges to date. FPNs can be discharged without any further liability (i.e. without a criminal conviction) by payment of the sum within the designated period. Indeed, timely settlement of the FPN results in a half price discount (if you pay your fist Notice within 14 days the usual £200 fee is discounted to £100). There is no formal right to appeal as there is, for example, for a parking ticket. As a result, individuals issued with a FPN are given the impression that they must either pay the fine or be subject to a criminal conviction.  

This is a total misconception, it is possible to raise an objection and, when doing so, it is important to request an extension to the period of non-liability for conviction until the matter has been resolved.

Under the terms of the Regulations, Officers must only have a "reasonable belief" that someone is breaking the law. The rationale for granting Officers discretion when issuing FPNs is clear and this kind of objective test is a common legal concept. However, the power is premised on Officers' having an encyclopaedic knowledge of the Regulations and the numerous exceptions that currently allow individuals to be outside their homes. It also presupposes that Officers will not be distracted or confused by the voluminous Guidance. Understandably, reports suggest this is not the case and that Officers are referring to Guidance rather than the Regulations when issuing FPNs.  

Should any of these cases ultimately proceed to court, which we expect may happen in due course in relation to those issued with significant fines, it will be interesting to see how the courts judge a 'reasonable belief' to be held. Lord Atkins famously noted, in his dissenting judgment in Liversidge v Anderson [1941], UKHL 1 [1942] AC 206, that the words "reasonable cause" should be evaluated by an objective standard rather than what is reasonable in the mind of the decision maker. This objective test is now widely recognised to be correct. However, in the current circumstances, the courts will be hard-pressed to decide that an Officer's belief that someone acting in clear breach of the rules set out in the Guidance was also breaching the Regulations, was not reasonably held.

As Baroness Hale aptly noted, the role of law is absolute in a time of crisis, and there evidently needs to be "accessible courts, staffed by independent and impartial judges able to supply the answers, if need be, in double quick time".  

We strongly recommend that you take time to familiarise yourself with the Regulations and the Guidance. For example, the table below illustrates the difference between the Regulations (law) and Guidance (advice) on the key issue of "stay at home".