Who can resist being provided with a soapbox? The Property Chronicle asked whether, as a partner in a reasonably sized London law firm, I would reveal some of the black arts of solicitors, the most famously egregious being hourly billing and my favourite being using Latin phrases. But first, a rather more pressing and important subject.
Albeit a long time ago, at law school I was taught that making things generally demanding or inconvenient for police was generally the mark of a healthy society and that a society that made life too easy for the police tended to become a ‘police state’. I write this article on 5 November, only a few hours after the new 28-day covid lockdown restrictions came into force in England. Perhaps by the time you read this piece 2 December will have arrived and the restrictions will have faded away.
As a lawyer with more than 30 years’ experience, I thought it would be a good test of my skills to see how long it might take me to find, read and understand that relevant legislation. It might also be in my economic self-interest to do so… of which more later. Instinct suggested that popping down to a local branch of HMSO to buy a paper version might, of itself, involve a breach of the law. Therefore, like many others, I suspect, I turned to my good friend, Mr Google.
At law school I was taught that a society
that made life too easy for the police
tended to become a ‘police state’
As so often with matters of the law, Mr Google is very good at finding hundreds of websites that proffer guidance, advice and/or commentary, but is not terribly helpful in finding the law. Indeed, if you go on the government’s own covid websites, you find a similar morass, but nothing telling you where the law may be found.
In truth, I already knew of a website that does nothing but publish the stream of legislation that pours from Westminster. That website is at www.legislation.gov.uk. But getting there is only a part of the battle. If you simply type ‘coronavirus’ on that website, you will come up with hundreds of hits. So which is the one that imprisons us for the next 28 days?
It is the catchily titled Health Protection (Coronavirus Restrictions) (England) (No 4) Regulations 2020 (SI2020/1200). The regulations are 32 pages long, which seems rather lengthy if they are only designed to last for 28 days. The regulations were foretold by our PM on a Saturday night (interrupting “Strictly Come Dancing”, I am told), laid before parliament at teatime on a Tuesday afternoon, and had the force of law as Wednesday turned to Thursday. They were rushed through.
These new regulations are based on the regulations introduced for our previous lockdown, which lasted from 23 March to 4 July. Interestingly, the new ones do not eliminate the so-called ‘Dominic Cummings defence’. For those of short memory, the March regulations allowed Dom to be out and about if he had a ‘reasonable excuse’. In March, ‘reasonable excuse’ included various specified exceptions. Dom appeared to suggest (and those responsible for prosecution appeared to accept) that, although not specifically mentioned in the March regulations, ‘driving 30 miles to Barnard Castle to test my eyesight’ constituted a ‘reasonable excuse’.
The regulations are 32 pages long,
which seems rather lengthy if they are
only designed to last for 28 days
If it was good enough for Dom in the spring, it ought to be good enough for me in the run-up to Christmas. I was minded to try the excuse of ‘driving to see my 84-year-old widowed mother with perfect eyesight’, but then I noticed the crucial difference between the March and November regulations, in regulation 21 on page 24.
Regulation 21 allows the imposition of fixed penalty notices of up to £10,000. Fixed penalty notices are a reasonably recent invention and traditionally have only be used to allow the imposition of reasonably modest sanctions in circumstances where the cost of hauling the offender in front of a beak would be disproportionate. In March, the fixed penalty was £60 (halved if paid swiftly).
The fixed penalty notices under these regulations can be imposed by ‘authorised persons’. That includes police constables and police community support officers (better known as ‘plastic policemen’). Whatever your view about the seriousness or otherwise of the current pandemic, does it not worry you to hand such power to relatively junior members of the law enforcement community? On the basis that the vast majority of people will not be able to find the regulations, let alone be able to comprehend 32 pages of gobbledygook, very few people will be equipped to argue with any ‘authorised person’.
Does it not worry you to hand such
power to relatively junior members
of the law enforcement community?
But, people may argue, these regulations are to deal with a desperate public health crisis. They will only last for short period of time and do no more than make life easier for the police. Care to place a bet as to whether the regulations may be extended or lifted for Christmas and reimposed (in some form) thereafter?
Please join me on the barricades for some sort of civil liberty protest when, not if, it happens.
By the way, if you were worried about me visiting my mum, I think I will argue that we are linked households under Regulation 12(2) and that I am entitled to travel to meet her and even take her for a walk on Horsell Common under Regulation 6(2)(c)(ii)(aa). All I need to do is to get the missus not to veto that under Regulation 12(3)(a).
