On 23 March the Scottish Government announced what it called an "effective ban" on public gatherings of more than two people and on leaving home except to shop for basic necessities, to take once-daily exercise, for medical reasons, to care or a vulnerable person or to travel to essential work if it could not be done at home.
There was at that point no legal basis for the ban, but it was presented by the Scottish Government as something more than advice. A Scottish Government press release said:
"In agreement with Police Scotland, officers will be permitted to deploy ‘soft enforcement’ of these measures, prior to the Scottish Government taking legal powers from Thursday."
In the same press release, Nicola Sturgeon was quoted as saying:
"All of this will take effect immediately."
The Coronavirus Bill, which contained the powers necessary for the Scottish Government to impose a lockdown1, was still progressing through the UK Parliament and had just completed its 3rd reading in the House of Commons. Because it included provisions relating to devolved matters, it required the consent of the Scottish Parliament. This was given on 24 March, while the bill was beginning its passage through the House of Lords. On 25 March the bill completed its 3rd reading in the House of Lords. It received royal assent the same day.
On 26 March the Scottish Government used its powers under the new act to make the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020. The regulations came into effect immediately (7.15pm 26 March) and were laid before the Parliament on 27 March . They expire after 6 months and the Scottish Government must review the need for them at least every 21 days.
Because the regulations are in the form of a statutory instrument under the UK's Coronavirus Act 2020, rather than primary legislation, they have not been subject to even the limited parliamentary debate that accompanied the emergency passage of the Coronavirus (Scotland) Bill through the Parliament. The regulations have so far also bypassed the scrutiny given to primary legislation to ensure that it is compatible with the European Convention on Human Rights. Yet the regulations are having a far greater impact on the lives of people in Scotland than any legislation ever passed by the Scottish Parliament. Along with the comparable regulations introduced in England, Wales and Northern Ireland at around the same time, they are the most draconian restrictions on liberty ever imposed in the UK, even in time of war.
The regulations are similar to the extra-legal "ban" introduced on 23 March, but there are some important differences. For example, exercise is not restricted to once a day. And the list of exceptions to the ban on leaving home has been expanded and amplified. The ban on leaving home does not apply to anyone who is homeless. Travel to provide voluntary or charitable services is allowed as well as travel for work purposes. Where children do not live in the same household as their parents, or one of their parents, travel is allowed in order to continue existing access arrangements.
What is most remarkable is the strength - and potential for abuse - of the enforcement powers contained in the regulations. They go well beyond the power to impose fines. Enforcement powers are given not just to police officers, but to other "relevant persons" designated by local authorities. Relevant persons may direct a person to return to the place where they are living or remove them to the place where they are living. failure to comply is an offence. A police officer may use reasonable force in exercising these powers. There have not so far been any reports of police using their powers to take people home. They appear to be focussing instead on issuing fixed-penalty notices.
Besides the restrictions on leaving home (dealt with in more detail below), the regulations restrict public gatherings; close restaurants, bars, pubs, cafes etc (except for takeaways) and a wide range of businesses including cinemas, theatres, museums, art galleries, gyms etc; and palces new duties on a range of other businesses.
Restrictions on movement
The regulations state "no person may leave the place where they are living", except "to the extent that a defence would be available under regulation 8(4)"
Regulation 8(4) states that it is a defence to show "reasonable excuse." Regulation 8(5) sets out a non-exhaustive list of reasonable excuses:
a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for a vulnerable person and supplies for the essential upkeep, maintenance and functioning of the household or the household of a vulnerable person, or to obtain money,
(b) to take exercise, either alone or with other members of their household,
(c) to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of schedule 1,
(d) to provide care or assistance to a vulnerable person, including to provide emergency assistance,
(e) to donate blood,
(f) to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living,
(g) to attend a funeral of—
(i) a member of the person’s household,
(ii) a close family member, or
(iii) if no-one within sub-paragraphs (i) or (ii) are attending, a friend,
(h) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings,
(i) to access critical public services, including—
(i) childcare or educational facilities (where these are still available to the child in relation to whom that person is the parent of, or has parental responsibility for or care of, the child),
(ii) social services,
(iii) services provided by the Department of Work and Pensions,
(iv) services provided to victims (such as victims of crime),
(j) in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child,
(k) in the case of a minister of religion or worship leader, to go to their place of worship,
(l) to move house where reasonably necessary,
(m) to avoid injury, illness or to escape a risk of harm.
Police officers and other "relevant persons" can "take such action as is necessary to enforce any requirement imposed by these Regulations."
Police officers and other "relevant persons" can exercise their powers to direct you to return home or remove you to your home if they "reasonably believe" you are contravening the regulations. Police officers can use reasonable force in exercising this power. They can do this without any need to arrest you.
Police officers can issue a fixed-penalty notice. The penalty is £60, reduced to £30 if paid within 28 days. The regulations state: "A fixed penalty notice is a notice offering the person to whom it is issued the opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty in accordance with these Regulations."
If you contravene the regulations you are committing an offence. If convicted, you can be fined up to £10,000 and you will have a criminal record.
The following points are important to keep in mind (and important for police to keep in mind too).
- Buying "basic necessities" is explicitly said in the regulations to be a reasonable excuse for leaving home. But there is no exhaustive definition of "basic necessities" and there is in any case no ban on buying items that are not "basic necessities". It therefore must be lawful for you to buy other goods while you are lawfully away from your home buying basic necessities, and may be lawful in other circumstances too.
- There is no lawful basis for police to search your shopping.
- There is nothing in the regulations to limit you to taking exercise only once a day.
- There is nothing in the regulations to stop you using a car for any of the purposes for which you are allowed to leave your home, including exercise. Police have made assertions to the contrary, but this has no basis in the regulations.
- If you receive a fixed-penalty notice for buying non-essential goods or travelling in a car to take exercise it could be open to legal challenge.
- Many people live in crowded, unsatisfactory housing and suffer a range of problems arising from deprivation. Confinement at home may be damaging to their mental or physical health. This could give rise to reasonable excuse for being away from home, even if not covered explicitly by provisions in the regulations (the list of reasonable excuses is not exhaustive). Sitting or standing around may sometimes be as important for health as exercise. But the outcome of any defence along these lines is uncertain.
- If you are a suspect or a witness to a crime, you must give police your name, address, date and place of birth and nationality. You do not have to answer any other questions from police. But the lock-down regulations are so broadly drawn that a police officer may "reasonably believe" you to be contravening the regulations unless you provide an explanation for your actions. The best response in these circumstances, contrary to our usual advice, may be to answer questions from police with a view to showing that you have reasonable excuse to be away from your home. You should avoid getting drawn into discussion beyond what is necessary to do this.
- It is unclear whether mass confinement along the lines set out in the regulations is compatible with the European Convention on Human Rights.
- It is unclear whether the power given to police to forcibly remove a person to their home is compatible with the European Convention on Human Rights. Even if it is broadly compatible, police may only exercise that power under circumstances that are well-founded in the regulations, read in as narrow a way as is necessary to make them compatible with the Convention. An officer forcibly removing a person to their home would otherwise be committing an offence.
If you choose to rely on the courts to uphold rights infringed by police, bear in mind that legal processes may now be moving even more slowly than usual. And changes introduced in the Coronavirus (Scotland) Act to the way courts operate are still untested and may impact on the fairness of proceedings.
The lock-down laws are unprecedented and untested. The explanation and commentary in this article should not be taken as legal advice. If in any doubt, consult a lawyer.
The legal and social problems surrounding lock-down are a separate question from the medical advisability of lockdown. SACC is in favour of radical action to minimise the spread of COVID-19 and we encourage everyone to stay at home as far as reasonably practicable and practice social distancing.
Coronavirus and Civil Liberties in the UK - analysis of the lockdown regulations by Tom Hickman QC, Emma Dixon and Rachel Jones
What are your legal rights in Scotland under the Coronavirus laws? - information from solicitor and human rights activist Aamer Anwar
- 1. The UK Government introduced lockdown regulations for England and Wales under the Public Health (Control of Disease) Act 1984, which does not apply in Scotland