A “whiteout” is meteorological condition in which snow falling from the sky and snow whipped up from the ground is whirled by a gale into a disorientating blanket of whiteness in which there are no visual bearings and it is all but impossible to navigate. It is an apt metaphor for the blizzard of coronavirus regulations which have cascaded out of Whitehall (and of course Cardiff and Holyrood too) since March. A search of the www.legislation.gov.uk website reveals a mind-boggling 133 (albeit each Welsh regulation is counted twice in English and Welsh versions) separate pieces of UK legislation, nearly all of them statutory instruments. Thus we have such delights as the Health Protection (Coronavirus, International Travel) (Amendment No. 7) Regulations, The Health Protection (Coronavirus, Restrictions) (Leicester) (Amendment) (No. 2) Regulations 2020, The Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) Regulations 2020 and so on. And on and on. It is enormously difficult to find ones bearings amidst all these constantly changing rules and regulations. As David Allen Green put it on August 14th:
“There is not a lawyer or police officer in the land who any longer knows what is legal and not legal under coronavirus regulations. An absolute mess of a legal regime.”
Since August 14th matters have only got worse.
It is not often that I have much sympathy with Jeremy Corbyn’s weather-forecaster brother Piers (or to give him his own rather baffling description “LongRange WorldLeading weather+climate forecaster BIEuUsa. SolarLunar Method NotCO2! AmericanThinker Climate Predictor2010. Bro #JC4PM”), or with any of the anti-vaxx, Qanon, and 5G conspiracists who participated in a rally against masks and coronavirus restrictions in Trafalgar Square on Saturday 29th August. As well as Mr Corbyn, they included the antisemitic conspiracy theorist David Icke and a small group who deployed a flag remarkably similar if not identical to that of the British Union of Fascists. These are not easy people to like, although no doubt there were some more reasonable folk amongst them as well.
Nevertheless the £10,000 Fixed Penalty Notice issued to Piers Corbyn as someone “involved in” the demonstration is disturbing. Mr Corbyn’s “FPN” requires him – strictly speaking one could argue it “invites him” but it is an invitation backed by a threat – to pay £10,000 for breaching Regulation 5B of The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020, as amended.
Regulation 5B was hastily made law last Friday 28th August, the day before the demonstration was held. It was introduced under an emergency procedure and was neither debated nor given even the most cursory scrutiny by any Parliamentary process. It permits the most junior Community Support Officer in the country to issue a Fixed Penalty Notice to the suspected organiser of a political event, demanding £10,000 to avoid prosecution and consequent financial ruin. Given its timing, even if it was not introduced with the purpose of targetting the organisers of a political protest against government policy, it very much has that appearance.
All the relevant coronavirus criminal laws – the lock-downs national and local, the closure of businesses, the requirements to wear masks, to quarantine and so on – have been created by statutory instrument. (The Coronavirus Act 2020, though the target of much misdirected criticism, is largely irrelevant). For readers with legal knowledge I apologise for stating the obvious, but a “statutory instrument” is a law made not by Parliament, like an Act, but by a Minister under a delegated authority given by an Act of Parliament, the “parent Act.” In this case the parent Act is the Public Health (Control of Diseases) Act 1984, S.45C of which, gives the Minister of Health powers to make regulations:
“for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere).”
These powers include [S.45C (3) (c)]:
“imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health.”
Particularly relevant to Mr Corbyn’s fixed penalty, these restrictions can include [see S.45C (4) (b)]:
“a prohibition or restriction relating to the holding of an event or gathering.”
There are limits to the regulations that can be made. Under S.45D:
“Regulations under S.45C may not include provision imposing a restriction or requirement by virtue of subsection (3)(c) of that section unless the appropriate Minister considers, when making the regulations, that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.”
The “appropriate Minister” is Mr Hancock, and he has dealt with that somewhat fatuous requirement by including within the preamble to the regulations the statement that he considers that they are indeed proportionate to what he seeks to achieve (“a public health response … to the threat of SARS-CoV-2 in England”).
A general challenge to the lawfulness of the regulations was rejected in Dolan v. Secretary of State for Health and Social Care  EWHC 1786, although the unsuccessful applicants in that case have since been given leave to appeal. Although I over-simplify, Mr Dolan argued that the regulations were outside (“ultra vires”) the powers delegated by the 1984 Act, and that they were incompatible with various rights under the European Convention on Human Rights, such as that to a private and family life and the right to associate.
The lawfulness of the 28th August amendments to the regulations which gave rise to Mr Corbyn’s FPN has of course not yet been tested in court.
Statutory Instruments: Parliamentary procedure
Generally a statutory instrument, though made by a minister and not Parliament, must go through some sort of parliamentary scrutiny process before it becomes or remains law. The exact procedure varies but however it is done there is no power to amend, and in practice it is almost unheard of for an instrument to be rejected or annulled. Between 1950 and 2015 only 17 out of over 170,000 statutory instruments were rejected by Parliament.
The last time the House of Commons exercised its power in this way was in 1979 when, probably as a result of some procedural confusion, it annulled The Paraffin (Maximum Retail Prices) Revocation Order. For reasons too technical to explain here (and which I don’t altogether follow myself) the effect was to cause the Privy Council to issue the The Paraffin (Maximum Retail Prices) Revocation (No. 2) Order which revoked the revocation. The rejoicing, if there was any, of those who objected to the removal of the cap on paraffin prices was short-lived. On the very same day the Energy Minister issued the The Paraffin (Maximum Retail Prices) Revocation (No. 3) Order, thus revoking the revocation of the revocation. Farcical is perhaps too kind a word for this sort of nonsense.
Parliamentary scrutiny of statutory instruments is in practice so minimal that it would be unfair on vestigia to call it vestigial.
(It is outside the scope of this blogpost, but one of the indirect effects of Brexit by virtue of the European Union (Withdrawal) Act 2019, has been to hand to Ministers the power to make statutory instruments on a hitherto undreamt of scale, including many powers to amend Acts of Parliament by ministerial decree, so-called “Henry VIII” clauses).
Coronavirus Regulations: Emergency Procedure
S.45Q of the 1984 Act provides that statutory instruments containing regulations under S.45C should not become law unless:
“a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
In theory, if not in practice, this should ensure a higher level of scrutiny than most statutory instruments receive. That is quite sensible given that the regulations capable of being made under S. 45C have been described by a Lord Justice of Appeal as “possibly the most restrictive regime on the public life of persons and businesses ever, certainly outside times of war.”
However, since Parliament was in recess, this procedure could not be followed.
How then could Mr Hancock create the law with which Mr Corbyn has been hit? The answer lies in Section 45R which allows for an emergency procedure – an emergency within an emergency if you like – where:
“The instrument may be made without a draft having been laid and approved … if the instrument contains a declaration that the person making it is of the opinion that, by reason of urgency, it is necessary to make the order without a draft being so laid and approved.”
The regulations themselves do indeed contain such a declaration:
“In accordance with section 45R of that Act the Secretary of State is of the opinion that, by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament.”
Some might question why there was such urgency to make a law targetting event organisers with a £10,000 fixed penalty on August 28th when the instrument could have been made in the usual way, laying it before Parliament at any time between March and July, when Parliament was sitting and the incidence of the disease was much higher; or why it could not wait three days until Parliament returned from its summer holiday on September 1st, but Mr Hancock’s bland statement that he thinks such urgency exists is all the law requires.
There are a few more general points.
The regulations do provide a “defence” of a sort to the organisers of political meetings. They do not apply to events organised by a “political body” if the organiser has carried out a risk assessment and taken “all reasonable measures to limit the risk of transmission of the coronavirus.” It is possible that the ad hoc alliance of lock-down sceptics of which Mr Corbyn is a supporter comes within the definition of a “political body” under the regulations, but it is very improbable, given the aims of the alliance, that it had taken any measures, let alone all reasonable measures, to limit the risk of transmission.
Payment of the fixed penalty is optional, in the sense that payment of a speeding ticket it optional. If Mr Corbyn pays the £10,000 no conviction is recorded against him.
If he chooses not to pay the fixed penalty he can be prosecuted in the magistrates court for the offence of breaching the regulation, and if convicted he would be liable to an unlimited fine. He cannot be imprisoned for the offence itself, but if he refuses to pay any fine imposed he can be imprisoned as an enforcement measure. For a fine of up to £10,000 the maximum period of imprisonment in default is 6 months. For a fine over £10,000 it is 12 months. No-one can predict what fine a Magistrates Court might impose, but there is no maximum fine. Presumably the £10,000 fixed penalty figure would be taken as some sort of guide.
The 28th August regulations fix the FPN for someone involved in an unlawful gathering at £10,000. There is no discretion given to set a lower amount.
You might assume perhaps that – as some government publicity seemed to imply – that it is only the “organisers” of such a gathering that are at risk. Your assumption would be incorrect. The S.5B (1) offence is not to “organise” but to:
“hold or be involved in the holding of a relevant gathering.”
“Involvement” is not defined except to make clear that:
“a person is not involved in the holding of a gathering if that person’s only involvement in the gathering is by attendance at the gathering.”
The implication is that without those words simply attending at a gathering would count as “involvement” in its holding. Thus, the regulations seem to catch anyone who, for example, publicises a demonstration (perhaps by posting a tweet or a link on Facebook). Even chanting slogans or carrying a banner goes beyond mere “attendance.” This means that in practice virtually anyone attending a “relevant gathering”, or encouraging others to attend, can be liable to a £10,000 FPN.
The penalties can be issued by an “authorised person,” which include a police constable or a community support officer (see Reg 9 (13) of the No. 2 Regulations, if you are still with me). Some might consider it remarkable that any police officer can now issue the organisers of political meetings with a demand for a sum of money so large that very few private individuals would have a hope of paying, and quite extraordinary that this is a power given even to Community Support Officers.
The quasi-criminal procedure of the FPN was originally devised to deal with minor parking and traffic offences. Over the years their use has expanded, to include minor public order incidents, litter, dog fouling and the like. Until the Coronavirus Regulations the maximum amount of any fixed penalty was £500 (for permitting noise from licensed premises). The procedure has now been deployed, with 2 days notice and no Parliamentary scrutiny of any sort, to target the organiser of a political meeting with a sum 20 times greater than any fixed penalty ever before created under English law. This is unprecedented and deeply disturbing and no less so because it is being used against a crank.
The fact that Mr Corbyn may be a crank, and that many of those at his meeting may have had disreputable or even disgusting political opinions is quite beside the point. As Sedley LJ put it in Redman-Bate v. DPP  EWHC 733:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. … From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power.”
I’m afraid Mr Corbyn will look to the European Convention on Human Rights in vain. The judges will say that the government was entitled to make the law that it did, and that even if his right to freedom of speech and assembly has been engaged, any restrictions were “necessary in a democratic society” for “the protection of health,” something specifically permitted under the Convention.
If Mr Hancock’s emergency law is upheld by the courts, as I expect it will be, so much the worse for the law. There may very occasionally be a place – in a true emergency – for significant changes to the criminal law to be made by ministerial proclamation, without warning, without debate and with no opportunity for Parliamentary scrutiny, but in a democracy those occasions should be kept to an absolute minimum. There are plenty of countries where decrees are routinely issued to prevent or deter political demonstrations. Why are we trying to emulate them?
(Since this blog was originally posted, a planned demonstration tomorrow on trans rights was cancelled, after the police warned the organisers that participants, stewards and even BSL interpreters might be arrested if it went ahead. I am grateful to the commenter Anne Coombes (below) who drew my attention to this).