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‘Former Supreme Court justice says Johnson has created a police state’ .

‘Former Supreme Court justice Jonathan Sumption QC has warned that Boris Johnson has started to create a police state.. Listen to the Interview. below. ‘The drive behind the growing power of the state is not power-grabbing politicians, but popular demand. As the technical and administrative capacities of the state expand, so people demand more of it in their constant pursuit of security.
The state must, if it can.
Sometimes the state must, even if it cannot.’
‘Things are different today, but the difference is not wholly benign.
Public pressure for action at whatever cost pushes the measures beyond what they can realistically expect to achieve. It may well push them beyond what is worth achieving if the price is the destruction of our personal liberty, livelihoods and sociability. There are dissenting voices, but not many and they are drowned out in a torrent of collective emotion and abuse.

Lord Sumption warns that the Corona Virus Act has created a Police State and that some elements of the police are disgracefully asserting incorrectly that the Government’s Guidelines are law and that they have the powers to enforce them.

This is a profound change in our political culture. The prime minister’s “orders” on Monday night are a remarkable example. The Coronavirus Bill had only just been introduced into parliament. It would, when passed, confer draconian powers on ministers to control the “gathering” of any two or more people anywhere and to restrict a person’s right to enter of leave any “premises”, including that person’s home or car … or tent. However, in his press conference Boris Johnson purported to place most citizens under virtual house arrest through the terms of a press conference and a statement on the government website said to have “immediate effect”. These pronouncements are no doubt valuable as “advice”, even “strong advice”, but under our constitution neither has the slightest legal effect without statutory authority.

At the time of writing (25/3/2020), Lord Sumption questioned the Prime Minister and said that it was unclear what power the prime minister thought that he was exercising, but this isn’t the first time the PM has been given terrible legal advice by those around in Downing Street – just remember the Supreme Court overturning the “stated law” in relation to Brexit and telling the PM in no uncertain terms that the advice given to the PM was incorrect.

The relevant powers of the government are contained in the Public Health (Control of Disease) Act 1984 and the Civil Contingencies Act 2004. But it is doubtful whether either authorise the Prime Minister’s orders or the Secretary of State for Health’s “guidance” to become automatically law – which is presumably why the Coronavirus Act needed to be introduced.

‘The ordinary rule is that a person may not be detained or deprived of his liberty without specific statutory authority. The 1984 act contains powers to restrict movement, but they are exercised by magistrates and apply only to particular people or groups who have been infected or whom they may have infected. The Civil Contingencies Act confers a temporary power of legislation on ministers that is exercised in a national emergency, but no specific power to detain people at home.

Lord Sumption suggested that ‘In the present national mood the prime minister’s orders will probably have strong public support and people will be inclined to comply whether they are binding or not. Yet we are entitled to wonder what kind of society we have become when an official can give orders and expect to be obeyed without any apparent legal basis, simply because it is necessary. …..There are wider problems about this. Legislation couched in general language can be used for purposes far removed from the original intention. The terrorism legislation, for example, has been used for a variety of other more questionable purposes, ranging from blocking the deposits of insolvent banks in the interests of creditors to manhandling peaceful demonstrators on the streets of London.

He warned that ‘Governments armed with vast powers are usually reluctant to part with them. The wartime defence regulations, which required the population to “place themselves, their services and their property at the disposal of His Majesty”, had to be renewed annually, but were not allowed to expire until 1964.. Other wartime powers were expressed to continue until the government declared the war to be over, which it never did. They continued to be used until the 1980s, when the Scott report exposed this unsatisfactory corner of governmental practice. …..These are not just technicalities. There is a difference between law and official instructions. It is the difference between a democracy and a police state. Liberty and the rule of law are surely worth something even in the face of a pandemic.’

Normally such a statement would be repeatedly debated in the media and in the House, but with a supine, timid opposition, more concerned with not offending the public and myopically focussed on its own leadership, we currently have no effective opposition to this Government’s increasing abusive exploitation of the situation.

Schedule 21 – Gatherings

Boris has said that gatherings are banned, that As of now, people must stay at home except for shopping for basic necessities, daily exercise, medical or care need, and travelling to and from work where “absolutely necessary” and that if people do not follow the rules police will have the powers to enforce them, including through fines and dispersing gatherings…really?

Firstly there is the question of whether this is a proportionate response to the limited number of corona deaths in the UK…… and the arguments that the proportionate response is to allow those who are not vulnerable and those who are not living with vulnerable people to continue as normal, have their flu-like symptoms and develop herd immunity, thus depriving COVID19 of most of its carriers….and the right of the healthy to choose to get infected and get the illness over with and develop immunity ahead of a risk of the virus mutating into something worse….but leaving Human Rights aside….

It is correct that Schedule 21 prohibits gatherings…however it is very limited in its powers. It is a statute and therefore subject to strict narrow interpretation.

Schedule 21 relates to Powers to issue directions relating to events, gatherings and premises. Premises will take its normal meaning in law of “a building or part of a building usually with its appurtenances (such as the grounds of the premises) and the legislation expressly states that it includes for these purposes “any place” and, in particular, includes (a) any vehicle, train, vessel or aircraft, (b)any tent or movable structure, and (c)any offshore installation (within the meaning given by regulation 3 of the Offshore Installations and Pipeline Works (Management and Administration) Regulations 1995 (S.I. 1995/738),…but is clearly interpreted as any enclosed or significantly enclosed space and it applies in relation to Crown premises as it applies in relation to any other premises. (This should be contrasted with the possible use of “any land or place” which would cover outdoor as well as enclosed spaces).

Part 2 relates to “Powers relating to events, gatherings and premises in England”. (Wales, Scotland and Northern Ireland have similar provisions elsewhere in Schedule 21.

The powers only come into force if there is a declaration by the Minister of Health of a serious
and imminent threat to public health in England and if they are an effective
means of (i)preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus in England, or (ii)facilitating the most appropriate deployment of medical or emergency personnel and resources in England. (In practice this is met…the test is not that the measures are the best means, just that they are a means of achieving these goals. (And just like other provisions, the declaration must be given as soon as the crisis is over).

The Secretary fo State for Health has power to prohibit or otherwise restrict events or gatherings in England, but this is strictly limited. He/she may only exercise the powers for the purpose of either
(a)preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus, or
(b) facilitating the most appropriate deployment of medical or emergency personnel and resources.

The Secretary of State for Health can do so in relation to
a) a specified event or gathering, or
(b) events or gatherings of a specified description, such as public gatherings of more than 2 people not being in the same family group.
(In the case of a family group, this is an extremely difficult definition and even the tighter definition of A family group living under the same roof Is still problematic because plain use of English would suggest that the family is “living under the same roof” where they are “regularly mixing as they would on Christmas Day”.
In practice, it is difficult to see a couple of police officers trying to enforce powers against a large group of individuals claiming to be a family group living under the same roof.

s5(3) Then gets worse for the government because the power of prohibition restriction can only be used where it has the effect of imposing prohibitions, requirements or restrictions on
(a) the owner or occupier of premises for an event or gathering to which the direction relates;
(b) the organiser of such an event or gathering;
(c) any other person involved in holding such an event or gathering.
(Remember we have already established above that “premises” is an enclosed area, so it is difficult to see how this prohibition can be used in relation to open spaces).

s7 also Makes it very clear that the prohibition powers only apply to organisers.
s7 states “The reference in sub-paragraph 3(c) [i.e. prohibitions, requirements or restrictions…in relation to events & gatherings] does not include a person whose only involvement in
the event or gathering is, or would be, by attendance at the event or

However, once told to disperse by a police officer, you could then face a more serious charge of obstructing a police officer in the execution of his duty, so you are well advised to disperse if asked, unless you are all living under the same roof when the police officer has no power to ask you to disperse.

This means that there is no power of prohibition requirement or restriction for a spontaneous gathering of people where it has not been organised. So with a group of friends see each other in a park and get together spontaneously, as long as none of them admit to organising it (even spontaneous organisation might be caught), then the powers do not kick in.

There are also sweeping powers to close premises in England or impose restrictions on persons entering or remaining inside them under s8 by reference to (among other things) (a)the number of persons in the premises; (b)the size of the premises; (c)the purpose for which a person is in the premises; (d)the facilities in the premises; e)a period of time.

So, what is the sanction? A person commits an offence if the person fails without reasonable excuse to comply with a prohibition, requirement or restriction imposed on the person
by a direction issued under this Part of this Schedule and a person guilty of an offence under this paragraph is liable on summary conviction to a fine….if the police can show that all of the necessary ingredients of the offence were made out.

A reasonable excuse includes “We’re all in the same family group”

It is also noted that in Wales, Scotland and Northern Ireland, a Minister issuing a relevant restriction may pay compensation, but yet again there is no similar provision in English law. Why?


The creation of the police state?

We recently had what should have been the subject of an enormous row in Parliament, the Harry Miller case where Harry Miller was visited and threatened with caution over tweets that officers said were transphobic. Just as there are now police officers threatening people under the covid19 emergency powers in manners that amount to a breach of Human Rights. The problem stems from ill-conceived and poorly debated laws just like the Corona Virus Act 2020. If it wasn’t for Corona panic by the Government and if there was an effective opposition to the Government, then the Miller Judgment at the end of February 2020 would still be reverberating around Parliament, Unfortunately, just like the Corona Virus Act 2020, there was an abdication of parliamentary responsibility to debate these critical matters, just as there has been an abdication of the oppositions duty to question the decision for lockdown.

So firstly what happenned in Miller? Harry Miller is an ex-police officer and was not going to be threatened by police officers that he saw as being OTT. This arose from the ridiculous wording of hate crimes where the subjective nature of the crime appears to be interpreted as whether the victim, however deluded, considers this as a hate crime. The result was that respected High Court Judge Mr Justice Julian Knowles was asked to review the actions of the Humberside Police, but suffice it to say that Mr Justice Knowles was less than impressed with the Humberside police when he gave his judgment on 14th February 2020. He opened by reflecting that “In his unpublished introduction to Animal Farm (1945) George Orwell wrote:
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”” and went on to review the law about Freedom of Speech and Human Rights and the genuine concerns of transgender matters that (para 14) On one side of the debate there are those who are concerned that such an approach will carry risks for women because, for instance, it might make it easier for trans women (ie, those born biologically male but who identify as female) to use single-sex spaces such as women’s prisons, women’s changing rooms and women’s refuges. On the other side, there are those who consider it of paramount importance for trans individuals to be able more easily to obtain formal legal recognition of the gender with which they identify.”

Mrs B (a transgender person, being post-operatively female) reported Harry Miller’s tweets as transphobic and the hate Crime Operational guidance unit of Humberside Police recorded these as non-crime hate incidents and Mr Miller was police went to Mr Miller’s place of work to interview him and as he was not there, spoke to him on the phone. Mr Miller quite correctly complained about his treatment by the police and the interference with his Article 10 Human Rights of free expression over transgender issues and sought judicial review. Mr Miller’s complainant Mrs B didn’t even read the tweets herself, but they were brought to her attention by someone else. They had never met.The judge concluded that Mrs B voluntarily chose to read the tweets and that they were not directed at her.
Humberside Police characterised Mr Miller’s tweets as hate crime “simply on the say so of Mrs B and without any critical scrutiny of the tweets or any assessment of whether what she was saying was accurate.

The judge found that what Mrs B told the police was not accurate. The judge found that PC Gul did not assess whether Mrs B was properly a victim and failed to consider the proper guidelines. PC Gul decided to speak to Mr Miller without consideration of what offences he had in mind or why PC Gul thought there was a risk that matters might escalate to become a crime. PC Gul in interviewing Mr Miller stated that his tweets were “were upsetting many members of the transgender community who were upset enough to report them to the police” – The Judge found this to be untrue. Mr Miller (remember that he is an ex-police officer with years of experience of accurately recording interviews) stated that PC Gul told him that he had been contacted by a person from ‘down south’. He called the tweets ‘transphobic’ and referred to ‘the victim’. He says PC Gul said that the ‘victim’ had called to express concern for employees at the Claimant’s place of work and was concerned it was dangerous for trans people. PC Gul explained that the Claimant had not committed a crime, but that his tweets had been ‘upsetting to many members of the transgender community’. Mr Miller asked PC Gul why he was wasting his time on matters that were not crimes and said “So, let me get this straight, I’ve committed no crime. You’re a police officer. And you need to check my thinking ?”,’ PC Gul answering: ‘Yes’ and Miller replying ‘Have you any idea what that makes you ? ‘Nineteen Eighty-Four’ is a dystopian novel, not a police training manual.’” (This referring to Nineteen Eighty Four novel by George Orwell and the creation of thoughtcrime. Mr Miller described PC Gul’s attitude as wrong, coercive and oppressive, something that Mr Justice Knowles agreed with. The result of the Humberside police intervention was that Mr Miller and his family have been the subject of threats and intimidation. The Judge concluded that the police improperly left Mr Miller with the clear belief that he was being warned to desist from further transgender postings.

A recording of a non-crime hate incident could disclose the maker of the statement or author of the incident in an Enhanced Criminal Record Check and in the words of Mr Justice Knowles (a) the mere recording of a non-crime hate incident based on an individual’s speech is not an interference with his or her rights under Article 10(1); (b) but if it is, it is prescribed by law and done for two of the legitimate aims in Article 10(2); and (c) that HCOG does not give rise to an unacceptable risk of a violation of Article 10(1) on the grounds of disproportionality.
Mr Justice Knowles then went onto say that Mr Miller was contributing to an ongoing debate that is complex and multi-faceted and referred to a number of very respected academics stating that there is a vigorous ongoing debate where people with the opinion encompassed by the phrase “it is a false assertion that trans women are women” are vilified as transphobic and that there is an academic belief that those with different views to the pro-trans community are expressing hatred, bigotry, prejudice or hostility when they are not doing this, but sumply putting forwards legitimately different value judgments.
Mr Justice Knowles concluded that the Police interfered with Article 10 rights of freedom of expression going on to say “In my judgment…… There was not a shred of evidence that the Claimant was at risk of committing a criminal offence. The effect of the police turning up at his place of work because of his political opinions must not be underestimated. To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society. “

Mr Justice Knowles in his judgement quoted Professor Stocks statement that saying “Trans Women aren’t Women” is not pejorative, expressive, mocking, or disapproving elements. In the mouths of many people, these utterances are intended to convey, and be heard as simple descriptions of observable facts; that is they are intended to be fact-stating and non-evaluative utterances, along the lines of ‘water boils and 100 degrees’ or ‘pillar boxes in the UK are red. For many English speakers, ‘woman’ is strictly synonymous with ‘biologically female and ‘man’ with ‘biologically male’. For these speakers, therefore, given the accompanying true belief that trans women are biologically male, to say that ‘trans women are men’ and ‘trans women
aren’t women’ is simply to neutrally state facts’

Mr Justice Knowles in his judgement also considered the s127 grossly offensive or indecent, obscene or menacing character offence under the Communications Act 2003 and stated that the Miller tweets were nowhere near that offence (and indicated that the Professor Stock quote would not be either. “No reasonable person could have regarded them as grossly offensive, and certainly not having regard to the context in which they were sent, namely, as part of a debate on a matter of current controversy. Nor could they be reasonably regarded as indecent or menacing.”

There is little scope under Article 10(2) of the Convention for restrictions on political speech or on the debate of questions of public interest. Freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts. The courts, as independent and impartial bodies, are charged with a vital supervisory role. (The same applies to the protection of liberty and freedom in relation to Corona Powers). In the Miller case, Mr Justice Knowles found no justifcatiion for restriction of free speech and there are going to be similar criticisms of the powers under Corona Act.

Mr Justice Knowles also said “I hesitate to be overly critical of Mrs B, given she has not given evidence, but I consider it fair to say that her reaction to the Claimant’s tweets was, at times, at the outer margins of rationality….”
Finally Mr Justice Knowles concluded “Although I do not need to decide the point, I entertain considerable doubt whether the Claimant’s tweets were properly recordable under HCOG at all. It seems to me to be arguable that the tweets (or at least some of them) did not disclose hostility or prejudice to the transgender community and so did not come within the definition of a non-crime hate incident……I conclude that Mrs B’s upset did not justify the police’s actions towards the Claimant including turning up at his workplace and then warning him about criminal prosecution, thereby interfering with his Article 10(1) rights……and in answer to the second question, whether the measure was rationally connected to the objective, flows from the first question. It was not. It was not rational or necessary to warn the Claimant for the reasons that I have given.

As many watched the Prime Minister order what was in effect something very close to mass house arrest on Monday 23rd March, they will have felt revulsion, anger and grief – as anyone brought up when this was a free and well-governed country would do so. They will have watched in horror as the police have exhibited an SS, Stasi or Cheka-like attitude again – as they are criticised for
Telling MP Stephen Kinnock that visiting his father, former Labour leader Neil Kinnock, on his birthday was not essential travel,
Telling shoppers that going to a convenience store to buy Easter Eggs to celebrate Easter with young children was not essential travel.

In a democratic society, the definition of essential travel is a subjective matter for the driver, not an objective one, unless laid down expressly by Parliament, and if there is doubt about the subjective test, then it will be for the magistrates to determine in due course. The test is similar to the emergency test for using the hard shoulder and Alex Ferguson used the ’emergency” defence when caught driving on the hard shoulder to avoid a traffic jam when it was an emergency to get to the toiler.
(The story about the police stopping a driver who was “bored and out for a drive” is a myth. The Police rightly stopped this driver who turned out to be just 15 years old and had no driving licence – so even though his excuse was he was “bored and out for a drive” he was committing numerous traffic offences.).

Many of the so-called offences stem from  a few clauses in the Public Health (Control of Disease) Act 1984, which most barristers had not even heard of. prior to the Corona epidemic and this has draconian powers buried in it which the MPs at the time never actually expected to have to use and not in the way that it is currently being used. Section 45 C (3) (c) of the Public Health (Control of Disease) Act 1984 has Orwellian powers because once the Health Secretary believes there is a threat to public health, he has – or claims to have – limitless powers to do what he likes, ‘imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health’, but beware any police officer relying on that power, because just like PC Gul, you may not actually have the power to legally do what you’re doing or your use of the power may breach Human Rights as highlighted by no lesser legal specialist than Supreme Court Judge Lord Sumption who doubts that the Act can be used in this way and warns: ‘There is a difference between law and official instructions. It is the difference between a democracy and a police state. Liberty and the rule of law are surely worth something, even in the face of a pandemic.’……but where is the debate …where is the opposition when it is needed, it has slunk away into hiding, terrified that if it criticises Government it might be open to criticism – more worried about it’s pending leadership battle than about civil liberties.

Despite criticism of the police from the Harry Miller case, have Humberside police decided to protect their reputation? No, they’ve decided to bolster their stasi-like attitude, creating an online portal for reporting people not social distancing. Northamptonshire police reported that ‘We are getting calls from people who say, “I think my neighbour is going out on a second run – I want you to come and arrest them”, so great is the paranoia created and so eager are many of the population to willingly adopt the (fortunately fictitious) concept of a legal duty to report wrongdoers that characterised 1984’s Oceania. What is so wrong with driving to somewhere deserted for a break with your immediate family? You’re is a car where you’re not contaminating anyone else, you’re walking as a family group in the open air, hundreds of feet from the nearest other group….but you must be committing an offence. What is wrong with being 20 and sitting in a park with your girlfriend as long as you’re social distancing? Who is crying out “FOUL!” when the Stasi, sorry the Police, come and tell you to move on or be fined. Where are your civil liberties?

Has Professor Neil Ferguson was one of those largely responsible for the original panic been subject to parliamentary questions? The doctor behind a U.K. college study that painted a chilling scenario over the coronavirus pandemic now says he holds a more optimistic view about the spread in the U.K.

Renowned epidemiologist Neil Ferguson of the Imperial College suggested in his model last week the U.S. and the U.K. would have to continue to shut down for as many as 18 months to avoid catastrophic death, and originally predicted 500,000 deaths in the UK but then testified in front of the U.K’s Parliamentary select committee on science and technology in March that he expects the country to be able to flatten the curve within 2-3 weeks and that he expected the death toll in Britain to be under 20,000. Other from Imperial college who are not epidemiologists revised that doomsday prophecy to 5,700, but now have admitted that they underestimated the numbers and that the 20,000 is likely to be more accurate, but what of the 500,000 deaths prediction ? Has he been held to account about creating panic? Millions of toilet rolls piled in households suggest that he hasn’t, nor will he or the Ministers who blindly ignored the critics of that maths be brought to account. Less likely still will Kier Starmer and his opposition friends be asked why they didn’t behave like an opposition.


Who has raised questions about the Oxford University alternative figures.? These suggested an entirely different scenario. The Rival view, from distinguished scientists at Oxford University, led by Sunetra Gupta, Professor of theoretical epidemiology suggests less than 1 in 1000 infected with Covid-19 will become ill enough to need hospital treatment, and most of those will be over 75. Yet we’re ruining the economy based on the Ferguson induced paranoia. And where are the figures saying that deaths today for corona and influenza are 145, compared with a typical seasonal death rate for influenza of 95, trying to put a balance on the figures and the fear.

It is fascinating, looking at how different countries which have adopted different methods of dealing with the virus and to see how little pattern there is within the experts globally. As Peter Hitchins has been highlighting for weeks, even Hong Kong and Singapore, similar city states which had a similar outcome, adopted different policies.

 If the Government do finally release us from mass arrest, then we should not blindly praise them for wrecking the economy but saving lives, we should hold their feet firmly to the fire of post-corona scrutiny, demanding proof and an independent enquiry into why the NHS was so woefully under-resourced that there is no longer spare capacity to deal with a crisis, why there was no pre-planning for a pandemic meaning that NHS workers had to work without adequate PPE, why lockdown was favoured over the alternative of saying “If you’re vulnerable or live with the vulnerable, stay at home, we’ll help you out, but if you’re under 40 and healthy, keep working, you’ll mostly have a mild illness and then build up herd immunity.?Why did it take so long for the Government to order PPE into place when in early January it was clear that there was a pandemic coming from China? Did China cover it up and if so what sanctions need to be taken against the People’s Republic….and most importantly, what lessons do we need to learn ahead of the next pandemic which could have a kill rate, not of 1% to 3% (depending on who you believe) but 50%.

We should not be grateful to be let out of lockdown. We should be very very angry that we were locked down in the first place. if this could have been avoided.

Schedule 20 – the infected

In true zombie apocalypse movie style, there are sweeping powers in the Corona Virus Bill in relation to “Potentially Infectious Persons”

What is a potentially infected Person (PIP) – we are all potentially infectious unless we’ve had corona, and if it is correct that your can have it twice, then we are all potentially infectious until we’ve had it twice….. but the Schedule 20 of the Corona Virus Bill doesn’t relate to “Any Person”….soo what does it actually mean?

Powers relating to potentially infectious persons
Schedule 20 confers powers relating to potentially infectious persons and makes related provisions

A person is “potentially infectious” at any time if—
(a)the person is, or may be, infected or contaminated with coronavirus,
and there is a risk that the person might infect or contaminate others
with coronavirus, or
(b)the person has been in an infected area within the 14 days preceding
that time.

The language of this part of the legislation leaves a lot to be desired. As any person may be, infected with corona virus (unless arguably they have had corona and have the anti-bodies), then the obvious wording could have been “Any person who has not had corona and recovered so that they have anti-bodies to the virus” (i.e. COVID-19 Recovered Individuals or CovRIs) but the legislation chose not to refer to recovered people (CovRis) so the draftsman clearly wanted to cover those infected. so sub-paragraph a) must mean a person who is infected or contaminated with the virus ……but as the power is one where police have powers to detain etc, then they obviously can’s and aren’t expected to do the test instantly, …..the police can therefore suspect that you “may be” infected. As established above, as it isn’t an “Any Person may be a potentially infectious person” interpretation, then the intention of the draftsman must be that a police or health officer gets powers if they reasonably suspect that a person is or may be infected …i.e. they are exhibiting symptoms.

And what of “contamination”, this is so poorly drafted as to be meaningless…. the medical advice is you can be contaminated by touching a door handle or railing….so what was the intention of the ‘contamination” provision. This is probably designed to catch the handful of people who will deliberately go out of their way to contaminate others with Corona, those disturbed individuals who have corona or have family with corona and use infected tissues etc to try to contaminate others.

So …assuming you are a PIP, what happens? Powers to direct or remove persons to a place suitable for screening and assessment arises….Yes you can be taken away to be tested if a public health officer PHO has reasonable grounds to suspect that a person in England is
potentially infectious. The PHO can “direct the person to go immediately to a place specified in the direction which is suitable for screening and assessment” and if they don’t go voluntarily then they can be “removed to a place suitable for screening and assessment” – presumably by force, and similarly the PHO can request a constable to remove the person to a place suitable for screening and assessment (and the constable may then do so).

However under s6(3) the PHO can only exercise the power in relation to a PIP if the officer considers that it is necessary and proportionate to do so
(a)in the interests of the person,
(b)for the protection of other people, or
(c)for the maintenance of public health
However, although this is a wide test, the PHO will have to be certain of being able to prove that they are acting in the interests of the PIP (difficult if they turn out to be healthy and were not showing symptoms of corona and especially so where the PIP says “I have all the symptoms of influenza and not corona” or where the PIP doesn’t have symptoms. The protection of others would only arise in circumstances where they are at risk – if infected – of contaminating others, so it is unlikely to arise in relation to the non-symptomatic in open public spaces. The only other grounds are the maintenance of public health, which is a really difficult argument because the scientists don’t agree whether lockdown is best or whether letting the healthy get infected is best because it creates herd immunity.

,,,,and that is before the test of whether the maintenance of public health is tested against the road traffic deaths in the UK annually and the argument surrounding acceptable death rates.

CORONA VIRUS ACT 2020 in force

Emergency laws to deal with the pandemic have been rushed through both Houses and were given Royal Assent earlier on Wednesday. 

Although poorly drafted, and not properly scrutinised, the Act has become law in what amounts to an emergency power.

We are updating the site shortly 0 but you should assume that all powers are in force from the Act, and that the arrest, dispersal and quarantine powers are now fully in force.

MPs voted to plan for a managed return to work on Tuesday 21 April, to deal with Budget legislation. The House of Commons had been due to break for Easter next week but concerns were raised about spreading the virus.

MOT 6-month window

Motorists worried about getting an MOT because of the coronavirus crisis, have been handed a six-month reprieve. The government has granted car owners a six-month exemption from MOT testing if their MOT expires after 30th March 2020. (Note that the provisions won’t come in until Monday 30 March which means vehicles due an MOT before then must still get a new MOT; however , drivers will still need to get their vehicle tested until the new regulations come into place if they need to travel, but if someone is unable to get an MOT because they are self isolating, the Department for Transport said it is working with insurers and the police to ensure people are not unfairly penalised for things out of their control and they will need to have an MOT as soon as possible.

It rather shows how ill-prepared government was for the risk of pandemic, despite it being warned about since the early days of SARS. that a major worldwide pandemic was likely in the near future.

MOTs being suspended

The exemption will enable vital services such as deliveries to continue, frontline workers to get to work, and people get essential food and medicine, as well as accomodating the new batch of NHS volunteers; however drivers must be aware that garages will remain open for essential repair work and that drivers will face prosecution if they’re caught driving unsafe vehicles even if they are covered by the MOT extension. The exemption will apply to cars, motorcycles and vans, but the government warned that vehicles must be kept in a roadworthy condition.

The Department for Transport said the move won’t hit any insurance claims during the period because they will be effectively extending MOT certificates meaning they will remain valid for insurance purposes

Practical driving tests and annual testing for lorries, buses and coaches have already been suspended for up to three months.

Must you stay at home or else?

According to the BBC, Boris has issued instructions that we must all stay at home and Boris Johnson says coronavirus is “biggest threat [UK] has faced for decades”….actually, his panicking measures, in an attempt to hide the fact that repeated Governments have run the NHS into the ground so that there is no spare capacity even in normal times, don’t exist.
It is claimed that there are new curbs on movement include shopping only for basic goods and a ban on gatherings including only one permitted period of exercise per day has no basis in law and his claim that Police will be given powers to enforce restrictions, including by fines isn’t backed up in the Corona Virus Bill.

Is this yet another example of Big Bad Boris getting poor legal advice again….just like he did with Brexit …..and much of his claims will be deemed without powers ….Will the claims be overturned by the Supreme Court in due course?

The Chancellor has agreed to pick up 80% of the salary of furlowed workers up to certain limits but has left the self-employed high and dry in the most surprising move ever…… He faces millions of self-employed businesses going bust and core conservative voters turning their backs on the Tories forever…yet where is the Chancellor’s help for self-employed? If you’re a civil servant unable to work you get the 80% of salary up to the limit of salary of £2,500 per month, but only sick pay for you if you’re self employed.

Closure of Restaurants, sports centres, footpaths etc

The government is once again using s.45C of the Public Health (Control of Disease) Act 1984 to impose distancing measures. By The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020, the Government has ordered the closure of restaurants, cafes bars theatres etc with effect from 2.00 p.m. on 21st March 2020. (See list below) and a person who is responsible for carrying on a business which is listed in Part 1 of the Schedule must close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and cease selling food or drink for consumption on its premises during the relevant period of restrictions and if the business is a take-away (i.e. sells food or drink for consumption off the premises), it must cease selling food or drink for consumption on its premises during the relevant period.
PART 1 prevents the consumption of food on the premises but allows takeaways as long as food cannot be eaten on the premises at
a) Restaurants ( including restaurants and dining rooms in hotels or members clubs),
b) Cafes and Canteens including workplace canteens, (but not including cafes or canteens at a hospital, care home or school, canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence or services providing food or drink to the homeless)
c) Bars, including bars in hotels or members’ clubs and
d) Public houses.
(Note: food or drink sold by a hotel or other accommodation as part of room service is not to be treated as being sold for consumption on its premises and is considered to be a take-away).
PART 2 requires the immediate closure of Cinemas, Theatres, Nightclubs, Bingo halls, Concert halls, Museums and galleries, Casinos, Betting shops, Spas, Massage parlours, Indoor skating rinks, Indoor fitness studios, gyms, swimming pools or other indoor leisure centres.
An offence under these Regulations is punishable on summary conviction by a fine and the offence under paragraph (1) if committed by a body corporate is also considered to have been committed by its relevant officers if committed with the consent or connivance of that officer of the body, or to be attributable to any neglect on the part of such officer,
A person, designated by the Secretary of State, may take such action as is necessary to enforce a closure or compliance with the restrictions. (See also The Health Protection (Coronavirus, Business Closure) (Wales) Regulations 2020).

The Health Protection (Coronavirus: Closure of Leisure Businesses, Footpaths and Access Land) (Wales) Regulations 2020 which have required the closure of holiday sites, camping sites, amusement arcades and indoor play centres, and further seek to close footpaths crowded with persons who unwisely decamped to Wales for the period of the epidemic. As is becoming clear, the Government is placing heavy reliance in its legislative management of this crisis on s.45C of the Public Health (Control of Disease) Act 1984. I predict that these provisions will be used for the regulations to enforce the so-called “lockdown”. Persons who carry on these businesses are responsible for closing them and as with The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (SI 2020/327), there is provision dealing with hybrid businesses and corporate offences. There is further provision relating to the closure of holiday sites. A person responsible for running such a site must use their best endeavours to require any person using a mobile home or caravan on the site when the premises is closed to vacate the premises: regulation 3(1). This does not apply to any person using a mobile home on the holiday site for human habitation under an agreement made under Part 4 of the Mobile Homes (Wales) Act 2013. Regulation 4(1) require footpaths to be closed by noon on 25 March 2020 if a relevant authority considers to be liable to large numbers of people congregating or being in close proximity to each other, or the use of which otherwise poses a high risk to the incidence or spread of infection in its area with the coronavirus.

It is an offence to contravene regulation 2 without reasonable cause, and obstructing without reasonable cause any person carrying out a function under the Regulations commits an offence.

As with the Business Closure regulations, enforcement and prosecution is by persons designated by the Secretary of State.
The Regulations have a 6 month sunset clause. We all hope that by then the sun may be setting on the worse of this virus.

Herd Immunity?

In early March 2020, Patrick Vallance told the BBC’s Today programme that the government’s strategy for fighting the Covid-19 outbreak was built around herd immunity, a tried and tested method for managing outbreaks of infectious disease because once a sufficiently large proportion of the population has some form of immunity, acquired either primarily via surviving a disease, and possibly later via vaccination, it becomes impossible for it to spread. Herd immunity worked for smallpox and it worked for measles.

The problem with herd immunity acquired through infection is that it comes at a price: namely that the disease runs riot and there is a degree of mortality and a number of at-risk people will die while the rest of the population has minimal symptoms.
In 1918-19, between 50 million and 100 million people died from “the Spanish flu”, despite the fact that the mortality rate for the Spanish flu is between one and three per cent, broadly in line with Covid-19. The total mortality numbers are shocking largely because of the widespread reach around the globe. Spanish flu, a viral pandemic triggered by H1N1 then disappeared only to resurface in 2009, again spreading around the world but with only a fraction of the death rate because to the far reaches of the planet, but with only a small fraction of the death rate, having a mortality of only 0.001-0.007% so that the death toll was hundreds of thousands around the globe largely because the two versions of H1N1 had different origins, and we had a degree of herd immunity as well as better living conditions than in 1918.

Herd immunity is a concept that comes from the field of zoology. It refers to the ability of a population of animals to resist infection by a pathogen — such as a virus — because a sufficiently large number of individuals within the population have immunity on an individual level so that their immune system can easily form antibodies against a specific infectious agent and it can’t take hold and make them infectious. With herd immunity, transmissibility in a population is dramatically reduced via immunological mechanisms, just like vaccines. Thus epidemics can be prevented or vastly limited, without the reactionary measure of quarantine. Pending a vaccine, epidemics like COVID-19 can be prevented by increasing the prevalence of precautionary behaviours in the general population via herd immunity, coupled with things like washing your hands frequently and properly, covering your mouth (with your arm, not your hand which then leaves viruses everywhere) when coughing or sneezing and avoiding close contact with those who are already infected. Also Disinfect your mobile device screen twice per day using antibacterial wipes as they generally kill viruses as well as COVID-19 may be able to persist for up to nine days on smooth glass and plastic surfaces, like a mobile phone screen. Avoid touching your mouth, nose, eyes and ears as they are all routes into your body for viruses, and your fingers are constantly in touch with surfaces that may contain viruses. Use a mask as it protects others. Self-quarantine is you are ill or have a fever or feel unwell. Also engage and limit your social network.

Strengthening herd immunity through behaviour is critical to preventing COVID-19 spread. We need to be talking about it more, and doing it more to talk about the low death rates across the population, especially if the vulnerable are quarantined at first. Herd immunity does not convey perfect protection to the individual, or the population, but it stops the spread quickly and economically.

Powers to detain, test and isolate the infected or those suspected of infection.

if the Secretary of State or a registered public health consultant has reasonable grounds to believe that a person (P) is, or may be, infected or contaminated with Coronavirus; and if the Secretary of State or a registered public health consultant considers that there is a risk that P might infect or contaminate others, then there is power under The Health Protection (Coronavirus) Regulations 2020 for the Secretary of State or a registered public health consultant , for the purposes of screening, assessment and the imposition of any restrictions or requirements under regulation 5, to detain P until the later of (a)the end of the period of 48 hours beginning with the time from which P’s detention under this regulation begins or (b) such time as any screening requirements imposed on or in relation to P under regulation 5(1) have been complied with and the assessment referred to in that regulation carried out in relation to P.

The Secretary of State or a registered public health consultant may (a)(orally or in writing) impose on or in relation to P one or more screening requirements to inform an assessment, by the Secretary of State or a registered public health consultant, of whether P presents or could present a risk of infecting or contaminating others and may )carry out such an assessment in relation to P; and once that assessment is made out, the Secretary of State or a registered public health consultant may, following such an assessment, (orally or in writing) impose on P any other restriction or requirement which they consider necessary for the purposes of removing or reducing the risk of infection . (It should be noted that the restriction may only be imposed if  the restriction or requirement is proportionate to what is sought to be achieved by imposing it.

During screening, P must (a) answer questions about P’s health or other relevant circumstances (including travel history and information about other individuals with whom P may have had contact), (b) produce any documents which may assist a registered public health consultant or public health officer in assessing P’s health, (c) at such time as a registered public health consultant may specify, allow a public health officer, or a medical officer, to take a biological sample of P, including a sample of P’s respiratory secretions or blood, by appropriate means including by swabbing P’s nasopharyngeal cavity, or provide such a sample; and (d) provide sufficient information to enable P to be contacted immediately by a public health officer during such period as a registered public health consultant may specify, where the registered public health consultant considers that such provision of information is necessary in order to reduce or remove the risk of P infecting or contaminating others.

The provisions cover children and if a child is concerned there is an obligation on the responsible adult to
(a)secure that P answers questions in accordance with paragraph (1)(a);
(b)answer the questions if P is unable to do so or cannot reliably do so;
(c)produce any documents, required under paragraph (1)(b), on P’s behalf;
(d)allow a public health officer, or a medical officer, to take a biological sample of P, including a sample of P’s respiratory secretions or blood, by appropriate means including by swabbing P’s nasopharyngeal cavity, or provide such a sample; and
(e)provide information where required by a public health officer.

Once screened, the Secretary of State or PHO may impose a period of quarantine up to 14 days. The PHO may also place a restriction on P’s travel, on their activities and on their contact with specified persons.

The Powers of detention, testing and assessment and isolation and quarantine also apply to groups of people. They also apply where a person P has arrived in England on an aircraft, ship or train from outside the United Kingdom, whether directly or via Northern Ireland, Scotland or Wales; and (b) has left, or the Secretary of State or a registered public health consultant has reasonable grounds to believe P has left, an infected area within the 14 day period immediately preceding the date of P’s arrival in England. Initial detention for assessment is limited to 24 hours, but a constable or PHO can extend this for a further 24 hours. (time starts when you arrive at the test centre or hospital). If isolation or quarantine is then appropriate it can be done for 14 days with the possibility to extend further for more than 14 days then there are obligations to ensure P’s well-being and there are then appeal rights to the Magistrates court similar to those in respect of criminal offences in respect of bail.