Note: This thread is related to #Coronavirus #COVID19

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david allen green+ Your Authors @davidallengreen writer and commentator on law and policy, small 'l' liberal - account often locked when away from Twitter May. 25, 2020 2 min read + Your Authors

A brief thread about law, instincts, and regulations

1.

Look at Regulation 6 of the Coronavirus Regulations

This is the provision that restricts movement during the lockdown:  http://www.legislation.gov.uk/uksi/2020/350/regulation/6 

2.

6(1) provides a prohibition

This prohibition applies to everyone, other than - if you scroll down to 6(4) - the homeless

There is no express exception for Dominic Cummings

3.

The 6(1) prohibition is subject to one carve out

This is a "reasonable excuse"

The word "reasonable" is legally crucial here

Not just "excuse" - but a "reasonable excuse"

This means it is not for person to decide themselves, it is an objective test - ultimately for a court

4

If the word "reasonable" was not in 6(1) then it would be an "anything goes" situation - if you had an excuse - any excuse - the prohibition would not apply

The requirement of reasonableness means mere instinct or any subjective belief is not enough

And there is more

5.

There is a non-exhaustive list of "reasonable excuses" at 6(2)

None of these mention "instinct"

But you will see that, in the head clause, each of these excuses is also subject to the word "need"

This means there is another legal test: necessity

6.

So to escape the prohibition there needs to be not only a reasonable excuse but that the excursion has to be necessary

The test of necessity, again, would be an objective one - further reinforcing that mere instinct or subjective belief is not enough

7.

Take the words "reasonable" and "the need" out of 6(1) and then you could have the subjective provision which would make instinct a trump card, but they are there

8.

Assuming Dominic Cummings is not homeless, given his number of homes, then he is a person to whom 6(1) would apply

As such, there are objective tests of reasonableness and necessity for any excursion to meet, for which "instinct" is insufficient

9.

So, to assert that his "instinct" is enough for the rules not to apply to him is wrong at law

If he had a "reasonable excuse" then that ultimately is not for him to determine

And this is why the defences of him following his instinct are wrong-headed and legally unsound

10/end

ps

Nothing in this thread or in my other commentary can or should be taken that an offence has been committed

The point is more narrow: the "instinct" defence, by itself, is not even insufficient - it is irrelevant

pps

Some lawyers are arguing that there is not a separate test of necessity to that of reasonableness

(Depends on how "the need" is construed - lawyers, eh)

But there is agreement that there is no "instinct" defence, and "reasonable excuse" is objective


You can follow @davidallengreen.



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