Opinion: a guided tour of UK quarantine law | FT

Effectively house arrest and impossible to enforce, according to David Allen Green the new quarantine statutory instrument is ludicrous, illiberal and full of loopholes

Hello i am david allen green and i am a legal commentator of the financial times i have been asked to talk about the quarantine regulations in particular but also static instruments in general what prompts fists 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 where a couple of differences one is that a such instrument has to be authorized by an act of parliament you can’t just have an si as its

Abbreviated freestanding you always have to track it back to which act of parliament the si is commander the second is that at least in fear li s eyes 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 – 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 s eyes on the other hand are issued effectively by government departments subject to usually only nominal parliamentary supervision and scrutiny and become

Part of 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 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 such instruments during avice coronavirus pandemic and although there was a need for emergency legislation at the beginning of this and m very certainly no need now and for governments use of essays 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’m 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

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Whose work i draw in this guided tour the health protection rackets coronavirus international travel clothes buckets bucketz england to close back its 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 rails northern ireland 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 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 regulations under the same 1984 public health act that all of you for regulations on coronavirus have come under the such 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 free to provide information when you enter england but the core of this sme is regulation for which you will see is the requirement to self isolate and within regulation for the crucial provision is sub regulation to where you will see that a person must remain in isolation from others in accordance with this regulation everything

Else in regulation for is to put meat on the bones of the provision in regulation for two you will see just above but it applies to somebody who lives in england from outside the common travel area which is essentially the british isles but if they will already in the british isles and travel to england these regulations apply for 14 days and if you move down

Regulation for your scenes of regulation seven at 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 your save up 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 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

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House for exercise and if you go down to g you will see that this is only in exceptional circumstances but you can leave for 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 from the old coronavirus regulations on the restricting movement this is an effect

House arrest if you were to legislate deliberately for house arrest in england using a statutory judgment or even an act of parliament this is how it would be set out you would have a prohibition and then you would have very very tight exceptions we now move on to the bottom of regulation for almost hidden away you will see regulation 13 d 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 shed or two you will see but it starts on page eleven of a 22 page pdf that means that half of this static instrument is devoted to further exceptions to the requirement it’s a 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 scheduled to become two

Very general exceptions such as paragraph 37 a person who’s 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 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 all 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

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Regulation 4 and you will see there’s no reasonable excuse exception where commits a criminal offence that means record it may mean here a fine but that doesn’t make for 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

S-i 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 a parliamentary approval when si

Is first we’re introduced they were seen as technical documents allowing government ministers to just fine-tune as in men necessary but now we can see that variety is possible criminal prohibitions and the sanctions of enforcing them can be done effectively by ministerial diktat these quarantine regulations are worrying they are a combination of being a liberal and

Being ludicrous they are liberal 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 maddest possible basis by stashing instruments 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 liberal legislation like this without express parliamentary votes in the 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 fought attic go ahead and legislate in

Such a way a 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

Transcribed from video
Opinion: a guided tour of UK quarantine law | FT By Financial Times

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