Emergency legislation, which by its nature restricts rights, always raises human rights concerns (e.g. rights to liberty - particularly detention without trial; rights to freedom of movement; freedom of assembly and rights around when the police or others are allowed to stop and question you).

However, even when emergency law is in place for good reasons it can still be problematic, and even counterproductive, if it does not follow certain human rights principles including:

• Proportionality: measures must not be disproportionate to what is actually needed;
• Purpose: laws should only be used for the task at hand of containing the pandemic and not for ‘collateral’ (other) reasons such as cover to repress opposition or minorities etc.;
• Time bound: the emergency laws should only be in place for as long as really needed;
• Non-discrimination: laws should not be enforced in a discriminatory or arbitrary manner;
• Legal certainty: when you can be arrested, fined, detained etc for breaking the rules it must be clear what the rules actually are.

The enforcement of what in any situation are far reaching measures (such as ‘lockdown’, ‘stay at home’ rules) is only possible when the vast majority of people agree with their legitimacy and voluntarily comply with them. Consistent, sensible decision-making by police and other enforcement officers, and clear policy and communication, greatly assists in trust and compliance. By contrast, ambiguity or acts of individual stupidity by police officers can undermine legitimacy.

The Covid-19 emergency legislation in NI

The first new emergency legislation passed at Westminster that applied to NI was the Coronavirus Act 2020 in March. Other emergency health legislation was in place in England in February (through secondary legislation called Regulations) but did not apply to NI. Among others, the Coronavirus Act 2020 introduced the following powers:

• public health officials, police and immigration officers can detain ‘potentially infectious persons’ for health screening and assessment;
• the First and deputy First Ministers can restrict events, gatherings and enforce the closure of premises;

The granting of powers in NI to immigration officers to detain ‘potentially infectious persons’ (against any person in any place) is concerning given the limited accountability, lack of medical training and existing concerns about arbitrary and discriminatory practices by immigration officers.

Despite Boris Johnson boldly declaring at the time that he could ‘turn the tide’ on coronavirus within 12 weeks, the Coronavirus Act is going to last for two years (although it will be reviewed before then). In contrast, the Irish government’s emergency legislation, following calls from human rights groups, is set to expire earlier in November 2020.

The main NI emergency legislation is in fact The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 passed by Health Minister Robin Swann MLA under existing public health law that had been broadened by the Coronavirus Act.

These Regulations, to be reviewed every 21 days, include restrictions on gatherings and powers to close premises. Regulation 6 restricts gatherings of more than two people in a public place with limited exceptions (including for essential work purposes, or when all the people live together). The Regulations have been amended twice. The first amendment (24th April) involved changes to the rules about visiting graveyards, whereas the second (15th May), which was took effect following Stormont’s Roadmap to exit lockdown had been published, involved changes including around the opening of garden centres and recycling centres.

Regulation 5: when can you leave your home?

Regulation 5 restricting ‘freedom of movement’ and instructing that the public not leave their homes ‘without reasonable excuse’, has received most public attention. ‘Home’ is defined as your place of living (including gardens, yard, passages etc.) An exemption is made for homeless persons, who sadly do not have a home to leave.

Twelve acceptable ‘reasonable excuses’ for leaving your home are listed in the Regulations, including leaving home to get food or medicine, for essential work, seeking medical assistance, to escape risk of harm (like domestic abuse), to move children in shared care arrangements and others. The ‘reasonable excuses’ are not limited to the twelve listed in the Regulations as there is an acceptance that excuses may be reasonably expanded.

Clarification could be provided in guidance by the Department of Health, but in the absence of this clarification it has been left to the PSNI to decide alone how they are going to enforce the rule. This lack of clarity initially resulted in vague and contradictory signals.

One of the most contested ‘reasonable excuses’ listed involves people leaving home “to take exercise either alone or with other members of their household”. As well as the Regulations not limiting ’exercise’ to a specified period of time, questions have arisen, for example, as to whether persons can drive to a place to then proceed to take exercise. The Regulation itself does not say. Clarification could be provided in guidance by the Department of Health, but in the absence of this clarification it has been left to the PSNI to decide alone how they are going to enforce the rule.

This lack of clarity initially resulted in vague and contradictory signals. The PSNI often defers to UK policing guidance, which said it was permissible to drive and then take exercise. However, on the same day that this guidance was publicised, the PSNI appeared to take a different line. A senior PSNI officer stated that “anyone travelling from home for exercise if they do not need to is in breach of lockdown restrictions”, effectively meaning no driving for exercise unless you could show you ‘needed’ to.

The Newsletter reported that the PSNI in Carrickfergus went even further by posting on Facebook “Exercise begins and ends at your front door. By that I do not mean walking from your front door to your car to drive somewhere for exercise. This will not be tolerated…” This statement contradicted the PSNI’s own advice on its website, where they were ‘encouraging’ people not to drive to local beauty spots for their daily exercise.

The lack of legal certainty led to Stormont Ministers issuing a statement on the 24th April, at the same time as the changes were made to the Regulations about visiting graveyards. It said that Ministers had “also agreed to amend the Regulations to clarify the circumstances in which a person can leave the house to exercise, including reasonable travel to exercise. For example, a drive to a safe space or facility would be permitted. However, taking a long drive to get to a beach, or resort where numbers of people may gather is unlikely to be regarded as reasonable, even for exercise.” An amendment was added stating that the regulations are still breached unless any ‘associated travel’ with exercise is reasonable.

On the 28th April the Department of Health and PSNI issued a joint statement that made no reference to the amendment and only added to the confusion. The wordy statement does not repeat the ‘drive to exercise’ example but instead emphasises the ‘discretion’ of PSNI officers. The whole statement has a generally grumpy tone about it, complaining that individual answers for ‘countless hypothetical scenarios’ cannot be given, leaving issues such as driving to locations in order to exercise up in the air.

Regulation 5 is designed to prevent too many people gathering at popular spots for exercise and hence undermining social distancing and increasing contagion. However, whilst interpretation of the rules is at times going to be contextual, it always needs to be done in a manner where there is clarity and consistency as to what the rules are. We are not there yet.

Emergency law: not just restrictions on the citizen

It is notable that most of the above Regulations are restrictions on citizens from doing things. The other side of the coin are emergency duties that could be placed on public authorities, for example to ensure NHS staff have protective equipment. There could also be duties on the private sector to, for example, switch production to essential items, provide PPE for staff and not profiteer from the emergency (as has been the case with wartime emergency laws). There can also be provisions to prevent rent increases or evictions, or to ensure the protection of vulnerable groups, such as the homeless.

Some measures like this have been introduced in NI through other Regulations. The Health Minister made all NHS treatment for Coronavirus free (including for non-NI residents). The Communities Minister brought in a new Discretionary Support Grant for living expenses due to Coronavirus, and pushed through regulations to limit evictions to prevent homelessness during crisis, extending the notice landlords have to give from one to three months.

On the 12 May Stormont published its ‘roadmap’ out of the lockdown. This sets out a five step process, which will involve lessening of restrictions over time. Although it can also mean some new ones (e.g. both the British and Irish governments plan quarantine measures after most international travel). Just when each step will happen, is still to be decided. In the meantime clarity over some of the existing rules remains an issue.

For further information on the Coronavirus Act see CAJ’s submission here