Emergency Coronavirus Legislation: Finding the Balance

It is now a week since emergency legislation came into force seriously restricting the everyday freedoms we all take for granted.

The new measures are intended to seriously limit the interaction of people from different households, thus reducing the aggressive spread of coronavirus across the nation.

As the Government reiterates on a daily basis, a rapid surge in coronavirus cases will lead to the NHS being overwhelmed. This will ultimately result in more people becoming seriously ill or dying, as the demand on NHS resources outstrips the supply. We must all do our bit by staying at home unless, and exceptionally, it is absolutely necessary for us to venture further afield.

Here in England, the police are now enforcing the Health Protection (Coronavirus, Restrictions)(England) Regulations 2020 by issuing fixed penalty notices to transgressors. Similar legislation has been passed by the devolved administrations in Wales, Scotland and Northern Ireland as well as in the Crown dependencies.

In accordance with section 45R of the Public Health (Control of Disease) Act 1984, the Regulations have been hastily drafted, without the usual approval by each House of Parliament, so that measures can be swiftly taken in response to the real and imminent threat posed by coronavirus.

The new legislation is proving a steep learning curve for the public, police and courts alike. Well-intended and vitally important as the new measures are, never before in peacetime has the UK population been asked to accept such sweeping restrictions on their civil liberties.

In England the legislation will be reviewed every three weeks and will expire, unless further legislation is made to the contrary, on 26th September 2020.

The National Police Chiefs' Council and College of Policing have issued joint guidance to officers on how the new legislation is to be applied. Police have been instructed to adopt a four-step approach, as follows:

• Engage: We police by consent. Officers will initially encourage voluntary compliance.
• Explain: Officers will stress the risks to public health and to the NHS. Educate people about the risks and the wider social factors.
• Encourage: Officers will encourage compliance and emphasise the benefits to the NHS by staying at home, how this can save lives and reduce risk for more vulnerable people in society.
• Enforce: If faced with non-compliance, officers will, if necessary and proportionate:
• direct those without a reasonable excuse to go home, using reasonable force if needed;
• issue a penalty notice for disorder (PND) of £60, to discourage further non-compliance;
• use prohibition notices to stop public gatherings;
• use existing licensing powers where businesses and organisations fail to comply.

Officers have also been instructed to "make sensible decisions, employ their judgement and continue to use other powers."

Over the last few days the police have been accused of using heavy-handed methods of enforcement. Some of these incidents, which are thankfully few and far between, are due to confusion arising from the rapid manner in which the legislation has been introduced.

The problem is exacerbated by the fact that the legislation, as it currently stands, does not entirely correspond with the official Government guidance that predates it. The police, of course, can only enforce the legislation as it is written.

Derbyshire Police's response to Peak District walkers is a perfect example of the current blurring between legislation and guidance.

As the legislation currently stands, there is nothing to prevent a person from getting in their car and driving somewhere else to partake in exercise. Similarly there is nothing in the legislation to prevent a person shopping for "basic necessities" or exercising several times on the same day. The Government guidance, however, is that people should be exercising close to their home no more than once a day and shopping for "basic necessities" as infrequently as possible.

Now that these inconsistencies have been identified, it would be desirable for the Government to amend the legislation to eliminate grey areas.

In the meantime I would urge everyone to comply with (and enforce) the legislation and Government guidelines in the spirit they are intended: to do their utmost to limit social contact between people of different households. Buzzing socially-isolated dog walkers with drones is neither necessary nor appropriate.

Support the police and other essential key workers. Their important jobs, which are difficult enough at the best of times, are even more stressful with the current threat of infection hanging over them and their loved ones.

Stay home. Protect the NHS. Save lives.