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Gareth Roberts explores the unexpected legal consequences of the Government’s defence of the Prime Minister’s chief advisor.
The Government’s attempts to shore up the position of the Prime Minister’s chief advisor Dominic Cummings, by suggesting that the lockdown provisions are a matter of ‘individual responsibility’, may lead to the courts being swamped with appeals against fines imposed under its Coronavirus regulations.
Section 6 of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 states that no person may leave the place they are living without reasonable excuse. It then sets out the 13 situations which may be deemed reasonable. What it specifically does not do is set out a subjective test whereby individuals may ignore the regulations if they feel that that is the right thing to do, because such a clause would be a legal absurdity – a bit like saying that you can’t burgle someone’s house unless you think it is the right thing to do.
Section 9 of the same provisions gives the police the power to enforce these provisions and fines of up to £3,200 have been set in England (Wales has similar provisions but a maximum fine of £1,920).
The powers have been implemented enthusiastically by police forces around the country – if you are not able to provide an explanation under one of the 13 exceptions and you are away from home, you are convicted. So far, more than 14,000 people have been convicted and fined for breaching these regulations.
In yesterday’s Downing Street briefing, Transport Secretary Grant Shapps seemed to change the law, declaring that the lockdown provisions were a matter of individual responsibility.
The Attorney General – nominally the top lawyer in the country – Suella Braverman also posted a tweet implying that the lockdown provisions may not apply to an individual who was being a “good parent” – which also amounts to a fundamental change in the law as ‘being a good parent’ is not a specified exemption in the regulations, and for a good reason. As any lawyer knows, breaking a law cannot be justified by a test as flimsy as this. Again, using the burglary example, an individual caught burgling a house would not be able to mount a defence of ‘I was burgling the house because my children need to eat’. That would amount to mitigation, nothing more.
Of the 14,000 people fined under these provisions, how many of them may have been able to say ‘I was away from home because I needed to carry out my parental responsibilities’ or ‘I was away from my home because I believe that in my own individual circumstances it was the right thing to do’?
Until yesterday, that defence did not appear to be available to them and they were fined. Now, after the intervention of Government ministers – including, most significantly, the Attorney General – it is not clear.
As such, it is open to those who have been fined under the Coronavirus regulations to appeal their convictions and their fines. They can do this either by going to a magistrates court and asking for their conviction to be appealed by what lawyers call ‘an appeal by way of case stated’ – which is when they ask a judge to pose a legal question for the Divisional Court to consider and clarify, such as: ‘can an individual determine whether the Coronavirus lockdown provisions apply to them?’. Or alternatively, they could appeal to the Administrative Court testing whether, in light of the Attorney General’s remarks the provisions of the regulations are reasonable.
Either way, the superior courts of England and Wales are destined to be kept busy by many hundreds of appeals resulting from the Government’s desperate attempt to keep Dominic Cummings in his job.