Opinion: a guided tour of UK quarantine law
Effectively house arrest and impossible to enforce, according to David Allen Green the new quarantine statutory instrument is ludicrous, illiberal and full of loopholes
Produced by Tom Hannen
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Hello, I am David Allen Green and I am a legal commentator for the Financial Times. I have been asked to talk about the quarantine regulations in particular, but also statutory instruments in general. What prompts this 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 there are a couple of differences.
One is that a statutory instrument has to be authorised by an act of parliament. You can't just have an SI, as it's abbreviated, free standing. You always have to track it back to which act of parliament the SI has come under. The second is that, at least in theory, SIs 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 to 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. SIs, on the other hand, are issued effectively by government departments subject to usually only nominal parliamentary supervision and scrutiny, and become part of the 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, in 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 statutory instruments during this coronavirus pandemic. And although there was a need for emergency legislation at the beginning of this pandemic there is certainly no need now. And for government's use of SIs 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 am 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 whose work I draw in this guided tour. The Health Protection, brackets, Coronavirus, International Travel, close brackets, brackets, England, close brackets, 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 Wales, Northern Ireland, and 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 a 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 the regulations under the same 1984 Public Health Act that all of the other regulations on coronavirus have come under. The statutory 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 3 to provide information when you enter England. But the core of this SI is regulation 4 which you will see is the requirement to self-isolate. And within regulation 4 the crucial provision is sub-regulation 2, where you will see that a person must remain in isolation from others in accordance with this regulation. Everything else in regulation 4 is to put meat on the bones of the provision in sub-regulation 4-2. You will see just above that it applies to somebody who arrives in England from outside the common travel area, which is essentially the British Isles.
But if they were already in the British Isles and travelled to England these regulations apply for 14 days. And if you move down regulation 4 you're seeing sub-regulation 7, that 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. You will see that 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 the 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 house for exercise. And if you go down to G you will see that it is only in exceptional circumstances that you can leave the 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 than the old coronavirus regulations on the restricting movement. This is, in effect, house arrest. If you were to legislate deliberately for house arrest in England using a statutory instrument or even an act of parliament this is how it would be set up. You would have a prohibition, and then you would have very, very tight exceptions. We now move on to the bottom of regulation 4. Almost hidden away, you will see regulation 13D, 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 schedule 2, you will see that it starts on page 11 of a 22-page PDF. That means that half of this statutory instrument is devoted to further exceptions to the requirement to 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 schedule 2 we come to very general exceptions, such as paragraph 37, a person who is 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 at 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 the law.
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 regulation 4, and you will see there's no reasonable excuse exception there, commits a criminal offence. That means a criminal record. It may mean here a fine, but that doesn't make the 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 SI.
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 parliamentary approval. When SIs first were introduced they were seen as technical documents, allowing government ministers to just fine tune as and when necessary. But now we can see that the widest possible criminal prohibitions and the sanctions for enforcing them can be done effectively by ministerial diktat.
These quarantine regulations are worrying. They are a combination of being illiberal and being ludicrous. They are illiberal 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 widest possible basis by statutory instrument, 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 illiberal legislation like this without express parliamentary votes in 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 thought that it could go ahead and legislate in such a way with 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.