Hello, I am David Allen Green and I am a legal commentator
for the Financial Times.
I have been asked to talk about the quarantine regulations
in particular, but also statutory instruments
in general.
What prompts this talk is that the government has introduced
quarantine regulations which provide
for strict obligations on what to do if you arrive in England.
Those regulations are in the form of a statutory instrument.
A statutory instrument has the same effect
as an act of parliament.
It is equally the law of the land as anything
which is contained within a bill passed by parliament,
but there are a couple of differences.
One is that a statutory instrument
has to be authorised by an act of parliament.
You can't just have an SI, as it's
abbreviated, free standing.
You always have to track it back to which act of parliament
the SI has come under.
The second is that, at least in theory,
SIs are challengeable in court on the basis
that they don't actually fit in with what the act of parliament
provides for.
But subject to those two points a statutory instrument
is as much of the law of the land as an act of parliament.
But in practice they are used in a slightly different way
to an act of parliament.
An act of parliament has to go through both houses
of parliament and be voted on before it
becomes part of the law.
SIs, on the other hand, are issued effectively
by government departments subject to usually only
nominal parliamentary supervision and scrutiny,
and become part of the law of the land fairly swiftly.
SIs can also be seriously consequential in that they
can create criminal offences, powers of arrest,
and detention.
They are also, in inverted commas, 'flexible'
and they are increasingly being used by governments
to legislate almost by department
without the inconvenience and slowness of going
through parliament.
In particular, the current government
is in the habit of issuing statutory instruments
during this coronavirus pandemic.
And although there was a need for emergency legislation
at the beginning of this pandemic
there is certainly no need now.
And for government's use of SIs for coronavirus
and other things is actually a worrying trend.
Government is, in effect, bypassing parliament.
Traditional constitutional theory
has it that it is parliament which
is the legislature and the government
is merely the executive.
But with the use of SIs it is more
meaningful to say that it is government legislating.
I am now going to give a guided tour
of the quarantine regulations.
And at this point I would like to acknowledge
the work of Professor Tom Hickman
on these, on whose work I draw in this guided tour.
The Health Protection, brackets, Coronavirus, International
Travel, close brackets, brackets, England,
close brackets, Regulations 2020.
A bit of a mouthful, but that is not
unusual for statutory instruments
because a number of them can be made under one parent
provision.
And so they all have to have detailed titles.
You will see from the title, however,
that this only applies to England
and this is because Wales, Northern Ireland, and Scotland
have her own coronavirus legislation.
You will see that the regulations were
made on the 2nd of June, laid before parliament the day
after, which was just before a weekend,
and then came into force on the 8th of June, which
was a Monday.
This was quite swift legislation.
You will also see that the secretary of state
is making the regulations under the same 1984 Public Health Act
that all of the other regulations on coronavirus
have come under.
The statutory instrument is quite a dense piece
of legal work.
It goes for 22 pages in a PDF, but it
does have shape and structure.
The essence of the regulations is
a creation of two obligations.
The first is an obligation under regulation 3
to provide information when you enter England.
But the core of this SI is regulation 4
which you will see is the requirement to self-isolate.
And within regulation 4 the crucial provision
is sub-regulation 2, where you will
see that a person must remain in isolation from others
in accordance with this regulation.
Everything else in regulation 4 is
to put meat on the bones of the provision
in sub-regulation 4-2.
You will see just above that it applies
to somebody who arrives in England
from outside the common travel area, which is essentially
the British Isles.
But if they were already in the British Isles and travelled
to England these regulations apply for 14 days.
And if you move down regulation 4
you're seeing sub-regulation 7, that a person, on their arrival
in England, must go straight to where they are
to self-isolate for 14 days.
So that is the key obligation.
You must self-isolate, and you must do that for 14 days.
Then under sub-regulation 9, you have some exceptions.
You will see that this is an exhaustive list, by which I
mean sometimes you can have the word "including,"
which means that there can be some other basis
for an exception.
So for example, in the restrictions
on movement under the old coronavirus regulations
there were a list of exceptions.
But there was a more general provision
saying that you could have a reasonable excuse.
Here, there is no reasonable excuse exception.
There is no exception for leaving the house for exercise.
And if you go down to G you will see
that it is only in exceptional circumstances
that you can leave the house for basic necessities such as food,
and only when it is not possible to obtain these provisions
in any other manner.
This is a very tight regime, tighter
than the old coronavirus regulations
on the restricting movement.
This is, in effect, house arrest.
If you were to legislate deliberately
for house arrest in England using a statutory instrument
or even an act of parliament this is how it would be set up.
You would have a prohibition, and then you
would have very, very tight exceptions.
We now move on to the bottom of regulation 4.
Almost hidden away, you will see regulation 13D, if a person is
as described in schedule 2.
Not a great deal is made of schedule 2
on the face of the regulation, which is odd,
because if you do now turn to schedule 2,
you will see that it starts on page 11 of a 22-page PDF.
That means that half of this statutory instrument
is devoted to further exceptions to the requirement
to self-isolate, not just the exceptions
under sub-regulation 9, but as you
will see as you scroll down, page after page
after page of exceptions.
Some of them seem quite sensible and distinct,
and then we get increasingly esoteric ones.
For example, under paragraph 21 there
is an exception for a person carrying out
a critical function at a space site or a spacecraft
controller.
And then as we get towards the end of schedule 2
we come to very general exceptions,
such as paragraph 37, a person who
is pursuing an activity as an employed or self-employed
person in the UK and resides in another country
to which they go back once a week or vice versa.
So anybody who commutes from England to
outside the common travel area or vice versa
is completely free of these regulations,
such as the other people in all 38 paragraphs of the schedule.
This is a concerning combination.
We have, on one hand, a very strict obligation,
which on first glance looks as tight as can be,
and is as much of a control on freedom of movement
as could ever be imagined in English law.
And then is subject to what at first glance
again looks like tight exceptions.
But if you look carefully you will
see that the exceptions become more and more
wide to the point where it could almost
be said that the exceptions to the rule
are more numerous than the cases that
would be covered by the law.
But if you don't come within one of these exceptions
you are then caught by the offence under regulation 6.
So if we go back up to regulation 6
you will see that a person who contravenes regulation
4, and you will see there's no reasonable excuse
exception there, commits a criminal offence.
That means a criminal record.
It may mean here a fine, but that
doesn't make the criminal liability any less.
Somebody will be blighted for life with a criminal record
just because they walk outside their own home
without being able to point to any
of the exceptions in this SI.
The ease with which a government can legislate
wide criminal prohibitions which go to the very core of what you
can do, including whether you can leave
your own house, without any real parliamentary scrutiny
is worrying.
Governments like SIs.
Governments like being able to legislate without the bother
and inconvenience of getting parliamentary approval.
When SIs first were introduced they
were seen as technical documents,
allowing government ministers to just fine tune as and when
necessary.
But now we can see that the widest
possible criminal prohibitions and the sanctions
for enforcing them can be done effectively
by ministerial diktat.
These quarantine regulations are worrying.
They are a combination of being illiberal and being ludicrous.
They are illiberal in respect of the core crucial provision
of self-isolation, which is effectively house arrest,
but also ludicrous in just how wide the exceptions go.
It is indicative of a botched policy
because often laws which don't read well
are because of policies which have not been thought through.
What we have here is worrying for wider reasons.
The current government is getting
a taste for legislating, even on the widest possible basis
by statutory instrument, creating
criminal offences which interfere
with fundamental rights.
There is no good reason for the government to be doing this.
These regulations have only come out in June
in respect of a pandemic which has been going on in the United
Kingdom since at least March.
A government should not be doing illiberal legislation like this
without express parliamentary votes in primary legislation.
And so it may well be that these quarantine regulations are not
enforced or are not enforceable.
It may well be that they are revoked quite quickly.
But the very fact that the government
thought that it could go ahead and legislate
in such a way with very little parliamentary scrutiny
or control, and in doing so interfere
with fundamental rights, is something
which is greatly concerning.
This is not what a government should be doing
with statutory instruments.