{"id":1093,"date":"2020-06-11T15:03:32","date_gmt":"2020-06-11T14:03:32","guid":{"rendered":"http:\/\/blogs.cardiff.ac.uk\/thinking-wales\/?p=1093"},"modified":"2022-04-13T17:25:09","modified_gmt":"2022-04-13T16:25:09","slug":"reasonableness-the-welsh-way","status":"publish","type":"post","link":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/reasonableness-the-welsh-way\/","title":{"rendered":"Reasonableness the Welsh Way"},"content":{"rendered":"\n
\"\"<\/figure>\n\n\n\n

This is a guest post by Professors Emyr Lewis and Ryszard Piotrowicz.<\/strong><\/p>\n\n\n\n

During the coronavirus-enforced lockdown, the four countries of the UK operated under very similar rules, at least until the middle of May. From Aberdeen to Derry, from Aberystwyth to Durham, we stayed at home to protect the NHS and save lives, or so we thought. <\/p>\n\n\n\n

Wales introduced particularly tight restrictions on freedom\nof movement.  Until June the 1st, when\nthe Welsh Regulations were amended signalling Wales\u2019 first tentative steps\ntowards easing the lockdown, Regulation 8(1) of the Regulations provided:<\/p>\n\n\n\n

\u201cDuring the emergency period, no person may leave the place where they are living or remain away from that place without reasonable excuse\u201d<\/p><\/blockquote>\n\n\n\n

and examples are provided of what would amount to a\nreasonable excuse. <\/p>\n\n\n\n

(The words \u201cor remain away from that place\u201d did not appear\nin the very first version of the Regulations. They were introduced at the end\nof April to deal with the (possibly overblown) concern that someone might leave\nhome with a reasonable excuse (e.g. to go shopping) but then go on to somewhere\nelse (e.g. to attend an open-air rave) which might not be a reasonable excuse.)\n<\/p>\n\n\n\n

In the latest amended Regulations (which came into force on\nJune 1st), there is a similar structure: a prohibition is established, but it\nwill not apply where there is a reasonable excuse:<\/p>\n\n\n\n

\u201cDuring the emergency period, no person may, without reasonable excuse\u2014 (a) leave the area local to the place where they are living or remain away from that area.\u201d<\/p><\/blockquote>\n\n\n\n

The list of reasonable excuses in the Regulations is\nlengthy, but it is clear that it is not exhaustive. For instance, the \u201cLeaving\nhome to exercise: guidance\u201d, published on 24 April and updated on 11 May 2020,\nstipulates that \u201c[t]his list is not intended, therefore, to include all\npossible reasonable excuses for leaving home\u201d (para 6).<\/p>\n\n\n\n

So, what do we mean by \u201creasonable\u201d? Lord Atkin, in the\ncontext of the duty of care, would have said that we should have regard to how\nour conduct would affect our neighbour: we should do all that we reasonably can\nto avoid harming our neighbour. In doing so, he was contemplating the position\nof the defendant in a civil negligence action. But who will decide what is\nreasonable in the context of the Coronavirus Regulations? In theory, if an\nalleged breach is prosecuted as an offence under Regulation 12, it will be the\nMagistrates\u2019 Court hearing the case.  In\nmost cases, however, since prosecutions can only be brought with the consent of\nthe DPP (or a Welsh-Government nominated person) the answer is a \u201crelevant person\u201d.\nRelevant persons are given significant powers under the Regulations to do all\nsorts of things to people who are suspected of breaching Regulation 8.  So, who is a relevant person?  Regulation 10(11) gives us the answer –\npolice officer, police community support officer, or \u201ca person designated by\u201d\nthe Welsh Government, Local and National Park Authorities in Wales and National\nResources Wales. (This provision creates a potential new class of enforcement\nofficers for these Regulations who are not part of or linked to the police.) <\/p>\n\n\n\n

Perhaps the best-known and most often used power of a\nrelevant person is that under Regulation 13(1), which provides that:<\/p>\n\n\n\n

\u201cA relevant person may issue a fixed penalty notice to anyone that the relevant person reasonably believes (a) has committed an offence under these Regulations, and (b) is aged 18 or over.\u201d <\/p><\/blockquote>\n\n\n\n

Of course, the recalcitrant car driver will insist that his\naction was reasonable, whether he believes it or not. The relevant person will\nhave to decide whether it was \u201creasonable\u201d for the car driver to go where he\nwent, when he went and why he went. How relevant is the attitude of the person\nwho might have breached the Regulations? While their attitude cannot be\ndecisive, it may be significant in evaluating what the person did and why. What\nabout the drug addict who, desperate for a fix, goes out to meet her dealer? Or\nthe nicotine addict who goes out to the shop, but only to buy cigarettes? A\nsmoker will understand the need immediately; a non-smoker might say that it\n(the going out; not the smoking) is risky, self-indulgent behaviour. One can\nsee the problem in the differing responses of different police forces.<\/p>\n\n\n\n

Equally problematic is the attitude of the relevant person.\nIn theory, he or she should not allow personal views of what they would have\ndone in the circumstances to be the determining factor. He or she would have to\nconsider whether the individual\u2019s conduct is within the range of what would be\nreasonable.<\/p>\n\n\n\n

An interesting illustration of how reasonableness is not\nconfined by the list of excuses in Regulation 8 is given by fishing. There is\nno reference to fishing in regulation 8, nor indeed anywhere in the\nRegulations.  It is not mentioned in any\nof the guidance given by Welsh Government. Some people had assumed therefore\nthat it is not lawful to go fishing. After the question was raised, the First\nMinister Mark Drakeford gave a statement in the Senedd on 13th May in which he\nsaid it was lawful: in the context of the express \u2018reasonable excuse\u2019 of taking\nexercise:<\/p>\n\n\n\n

\u201c\u2026people are allowed now to leave their homes more than once a day for exercise, and if your way of taking exercise is to walk from your home to a river and to sit there, not near other people, and to go fishing, then that is allowed within the rules in Wales. But it must be local and it must be done in a way that observes social distancing.” <\/p><\/blockquote>\n\n\n\n

This is interesting, because it suggests that, if it is not\na way of taking exercise, it is not \u2018allowed\u2019 under the Regulations, whereas of\ncourse it may be perfectly reasonable to go fishing for purposes other than\ntaking exercise, for instance to catch fish to eat or to get tranquillity and\npeace of mind.<\/p>\n\n\n\n

This also illustrates one of the most striking features of\nthe lockdown, from a legal perspective, namely how formal laws (set out in the\nRegulations), Government guidance and advice, and ministerial statements such\nas Mark Drakeford\u2019s about fishing, appear to have been rolled together into one\nset of rules which people are expected to obey, regardless of their formal\nlegal status.  <\/p>\n\n\n\n

The temptation to possible elision of law (the must) and\nguidance (the ought) is particularly problematic if this is done by the\nrelevant person, who should, but may not even, be aware of what they are doing:\npotentially alleging a breach of the law when all the individual has done is\ndecide not to follow the guidance; or maybe – since they may not have heard of,\nlet alone read, the guidance \u2013 they may just be doing something they believe is\npermitted. To the extent that the guidance repeats the law, this may not be an\nissue; but where the guidance purports to interpret the law (as it does), this\nmay leave room for differing views about what is in fact justified, or\nreasonable, made all the more challenging when gaps in the guidance are filled\nby Ministerial statements.<\/p>\n\n\n\n

Emergencies often require legislation to be made in a hurry,\nwith the minimum of scrutiny.  That has\ncertainly been true of Regulations made by Ministers in both London and Cardiff\nin the context of the coronavirus pandemic. This is of course well-intended in\nthe interests of maintaining public health, but there is a danger that by not\ndistinguishing clearly between what the law says and what the Government says\nin an emergency, we lose our grip on our ability to distinguish between those\nthings in normal times.<\/p>\n\n\n\n

About the authors<\/strong><\/h5>\n\n\n\n

Professor Emyr Lewis is Head of the Department of Law and Criminology at Aberystwyth University and a former Senior Fellow in Welsh Law at the Wales Governance Centre.<\/strong><\/p>\n\n\n\n

Professor Ryszard Piotrowicz is Professor of Law at Aberystwyth University and Vice-President of the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings.<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"This is a guest post by Professors Emyr Lewis and Ryszard Piotrowicz. During the coronavirus-enforced lockdown, the four countries of the UK operated under very similar rules, at least until […]","protected":false},"author":1816,"featured_media":170,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[143],"tags":[142],"class_list":["post-1093","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-covid-19","tag-covid-19"],"jetpack_publicize_connections":[],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p8iFWs-hD","meta_box":[],"jetpack_featured_media_url":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/wp-content\/uploads\/sites\/509\/2016\/11\/blog-photo.jpg","_links":{"self":[{"href":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/wp-json\/wp\/v2\/posts\/1093","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/wp-json\/wp\/v2\/users\/1816"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/wp-json\/wp\/v2\/comments?post=1093"}],"version-history":[{"count":23,"href":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/wp-json\/wp\/v2\/posts\/1093\/revisions"}],"predecessor-version":[{"id":1122,"href":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/wp-json\/wp\/v2\/posts\/1093\/revisions\/1122"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/wp-json\/wp\/v2\/media\/170"}],"wp:attachment":[{"href":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/wp-json\/wp\/v2\/media?parent=1093"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/wp-json\/wp\/v2\/categories?post=1093"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.cardiff.ac.uk\/thinking-wales\/wp-json\/wp\/v2\/tags?post=1093"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}