Delayed publication of coronavirus regulations and legal certainty – concerns and protections
Lee Marsons (University of Essex)
As part of my compilation of resources on Covid-19 for UKAJI, I have been paying close attention to the publication of delegated legislation throughout this crisis. My main sources for this have been legislation.gov.uk, the Gazettes, and the gov.uk website. One of my growing concerns has been the number of times where I have observed a delay between new regulations being signed by a Minister and coming into force, and the regulations becoming publicly available on any of these websites. The risk with this delay is that a Minister has created a new criminal offence – or at least has modified an offence created by previous regulations – without a member of the public being able to discern the offence’s specifics so that they may remain within the law. This concern is underlined when we realise that, since many of these regulations have been authorised by Ministers without recourse to Parliament in the immediate term, not even the elected representatives of the public may have knowledge of these offences so as to advise their constituents accordingly. As yet, I am unaware of an actual case, but with 15,715 fixed penalty notices having been issued as of 8 June 2020, there remains the real risk that a person has been, or will be, fined and prosecuted by the police where that person has had no ability to specifically discern the scope and contents of the regulation under which they have been sanctioned. Whatever theory of the rule of law one prefers, this state of affairs is troubling for those concerned with legal certainty for the individual vis-à-vis the punitive and coercive powers of the executive.
I am pleased that this issue has started to attract attention among parliamentarians. On 15 June 2020, the House of Commons debated and approved the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020. During that debate, at Hansard Vol. 677 Col. 597, Mark Harper, Member of Parliament for the Forest of Dean, observed that the Commons was:
“now debating the coronavirus No. 3 regulations which…have in some cases already been superseded by the No. 4 regulations, which were laid before the House on Friday and in some cases came into force almost immediately afterwards, with some regulations coming into force on Saturday.”
This was a concern because:
“the regulations are actually quite complicated and not everybody will understand them in great detail, [and] because they are the law a breach of them is actually an offence. We are creating criminal offences here, and when we do that it is important that we let people know what the offence is and how they can make sure that they remain within the law. I suspect that if we were to do a survey among Members of Parliament, even they probably would not get all the regulations correct. They are quite difficult to follow, given that they start off with a set of regulations that is then amended over and over again. It is quite a challenge to work out what the current legal position is.”
Such are the risks to legal certainty in situations, like now, where major restrictions on ordinary liberties are achieved via statutory instruments which, while coming into force and creating offences immediately upon ministerial signature, may not be disseminated to the public – and are certainly not approved by Parliament – until some time later.
Protections in England, Wales, and Scotland
In England, Wales, and Scotland, there is at least the possibility that a person prosecuted in these circumstances would have a defence under s.3(2) of the Statutory Instruments Act 1946, which reads that:
“In any proceedings against any person for an offence consisting of a contravention of any…statutory instrument, it shall be a defence to prove that the instrument had not been issued by or under the authority of His Majesty’s Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged.”
In the few cases to have considered s.3(2), the provision is understood to provide a defence where there has been no act of publication or dissemination of the statutory instrument after its approval. As Streatfield J observed in R v Sheer Metalcraft  1 QB 586:
“There does not appear to be any definition of what is meant by “issue,” but presumably it does mean…that the making of an instrument is one thing and the issue of it is another. If it is made it can be contravened; if it has not been issued that provides a defence to a person charged with its contravention. It is then upon the Crown to prove that, although it has not been issued, reasonable steps have been taken for the purpose of bringing the instrument to the notice of the public or persons likely to be affected by it.”
Similar views were expressed by Lord Goddard in Simmonds v Newell  1 WLR 826, which concerned a statutory instrument which had been approved by a Minister but not made entirely publicly available:
“The Solicitor-General agrees that if this matter is not contained in the instrument, in order that people may know whether they are committing offences or not, it must be shown that proper steps have been taken to bring it to the notice of people in the trade that these prices exist. That is certainly a very reasonable attitude for the Solicitor-General to take up, because it is not desirable, in criminal matters, that people should be prosecuted for breaches of orders unless the orders can fairly be said to be known to the public. It is clear from the case stated that there never was evidence before the justices that the steps that the section requires to be proved by the prosecution had ever been taken and that the defendants were therefore entitled to rely on that as a defence.”
There is a comparable defence available in relation to Scottish statutory instruments under s.41(3)-(4) of the Interpretation and Legislative Reform (Scotland) Act 2010, which reads that:
(3) In proceedings against a person for an offence consisting of a contravention of a Scottish statutory instrument, it is a defence to prove that, at the date of the alleged contravention, the instrument had not been published by the Queen’s Printer.
(4) The defence mentioned in subsection (3) is not available if it is proved that reasonable steps had been taken before that date by or on behalf of the responsible authority to bring the purport of the instrument to the notice of—
(a) the public,
(b) persons likely to be affected by it, or
(c) the person charged.
Therefore, it seems a reasonable argument that where a Minister in England, Wales, and Scotland has created or modified an offence by statutory instrument and this information has not been made available to the public – perhaps, as I am considering here, because of a delay in disseminating the instrument – a person would have a defence against prosecution under these provisions during that period where the information was unknown.
However, it is unlikely to be as simple as this in reality. One complicating feature of these provisions is their demand that the purport of the instrument is brought to the notice of the public, rather than the instrument itself. This raises the question as to whether the daily broadcast press conferences attended by Secretaries of State, media interviews given by Ministers, and the guidance documents produced by Departments would make the purport of the instrument sufficiently clear, though the instrument itself is not yet public. It seems to me that there is no abstract answer to this question, it would be a matter of fact and degree in the circumstances of the case and would depend on whether Ministers have announced the major features of the offence to the public, perhaps alongside an indication of possible sanctions. Consequently, while these provisions provide no absolute bar against a prosecution in circumstances where a statutory instrument had yet to be published, it at least provides the possibility of a defence depending on the extent of the information given by Ministers about the offence through other channels, such as television or guidance documents.
Protections in Northern Ireland
In Northern Ireland the position is substantially more complex. The defence under s.3(2) would not be available because, but for in specific circumstances, s.13 of the 1946 Act declares that the Act does not extend to Northern Ireland. Nor is it obvious that Northern Ireland has an equivalent provision to s.3(2) elsewhere. The best that I have discovered is Article 5(2)(b) of the Statutory Rules (Northern Ireland) Order 1979, which requires a Minister, ‘as soon as may be after the making of those rules to arrange for the publication of those rules or of notice of the making of those rules in the Belfast Gazette’. This is different to s.3(2) because Article 5(2)(b) provides no actual defence to a prosecution, only an obligation on a Minister making those rules to publish them in a particular place.
Article 5(2)(c) provides that some statutory rules may be exempt from the requirements of Article 5(2)(b), namely those listed in Schedule 3 of the Order. These include the Public Health Acts Amendment Act 1907 and the Public Health (Ireland) Act 1878, but Schedule 3 does not mention the Public Health Act (Northern Ireland) 1967 nor the Coronavirus Act 2020, the parent legislation for most of the statutory rules made. Alternatively, s.8 of Schedule 3 also exempts statutory rules of a temporary nature which in the opinion of the Minister are likely to cease to be in force within three months after they are made. It is conceivable that a Minister might think this, but in my view that would be a major – and problematic – assumption to make in the coronavirus context. Therefore, without more, I assume that there is a requirement to make public in the Gazette any statutory rule related to coronavirus.
Where this has not been complied with, though there is no statutory defence, Lim Chin Aik v R  AC 160 might be a helpful authority for a defence at common law. In this case, Lord Evershed, sitting in the Privy Council, commented that the traditional maxim ignorantia juris non excusat – ignorance of the law is no excuse – could not apply where there was no possibility for a person to carry out inquiries as to what the law affecting them was. Nevertheless, I am not certain that this is a conclusive authority for at least two reasons. First, these comments were obiter given that the main issue in the case was the mens rea of a Singaporean immigration offence. And second, there is no direct analogy to coronavirus rules because Lim Chin Aik concerned an order directed against a specific person that was not disclosed to that individual, rather than a general offence applying to all persons.
In addition, despite there being an obligation for a Northern Irish Minister to publish the relevant statutory rules, I am not convinced that a failure to do so would render a statutory rule ultra vires and, therefore, any relevant offence made void. There is no authority for this proposition from the courts (Westlaw, at least, identifies no cases at all on Article 5(2)(b)) or in the Order itself. As such, I can see no particular reason to be confident either of a common law defence or of the statutory rule being ultra vires.
All that said, the Human Rights Act 1998 may assist. In the qualified rights contained in Articles 8 to 11 of Schedule 1, any restriction on those rights must be ‘prescribed by law’. There is a plausible argument that a statutory rule that had not been published but had led to a conviction would not be ‘prescribed by law’ and, therefore, would violate one of the relevant qualified rights. I am assuming that since being prosecuted or fined for breach of the regulations may restrict a person’s ordinary movement and assembly, worship, business activities, family contact, and other social conduct, there may well be at least a modest interference with the rights to respect for private and family life (Article 8), freedom of assembly, association, and protest (Articles 10 and 11), and freedom of religion (Article 9).
In Huvig v France (1990) 12 EHRR 528, the European Court of Human Rights identified four questions from earlier cases which provide a test for deciding if any given interference with a right is ‘prescribed by law’:
- Does the domestic legal system sanction the infraction?
- Is the relevant legal provision accessible to the individual?
- Is the legal provision sufficiently precise to enable the individual reasonably to foresee the consequences which a given action may entail?
- Does the law provide adequate safeguards against arbitrary interference with the respective substantive rights?
The most relevant question here is question two – is the relevant legal provision accessible to the individual? In Sunday Times v United Kingdom (1979) 2 EHRR 245, the European Court held that accessibility means that the individual, ‘must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case’. As an example, in Silver v United Kingdom  5 EHRR 347, the Court held that the Standing Orders and Circular Instructions which the Home Secretary issued to prison governors failed the accessibility test since they were not published, were not available to prisoners, nor were their contents explained in cell cards.
For these reasons, in circumstances where a Northern Irish statutory rule which had yet to be published led to a criminal conviction, it is likely that there would be a violation of one or more of the qualified rights under Articles 8-11 and, on that basis, the conviction would be unlawful given that under s.6 of the 1998 Act, public authorities have an obligation to act compatibly with those rights. Nevertheless, where Northern Irish Ministers had not published the rules but had informed the public through other means – such as press conferences, interviews, and guidance – a Minister could still reasonably argue that, despite the failure to publish, the individual was still aware in principle of the relevant offence through other channels.
In sum, there is no easy answer to the concerns raised in this piece. There is no authority for any absolute prohibition or bar on prosecution in circumstances where a coronavirus related statutory instrument created or modified an offence, that offence was enforced, but the instrument had not yet been made available to the public. Nevertheless, at least in England, Scotland, and Wales, a person is likely to have a defence under s.3(2) of the Statutory Instruments Act 1946 or under s.41(3)-(4) of the Interpretation and Legislative Reform (Scotland) Act 2010 against such a prosecution. In Northern Ireland, where there is no equivalent provision, a person may still be able to use the Human Rights Act 1998 as a ‘shield’ against such a prosecution, on the basis that it would violate one of the qualified rights under Articles 8 to 11 to suffer a conviction in these circumstances. Hopefully these debates will never have to be tested in the courts because no person has been fined or prosecuted in these circumstances, but it is not obvious to me that this is so and legal advisors to those convicted under coronavirus regulations ought to bear this complication in mind.
My thanks to Grainne McKeever, Conor McCormick, Brice Dickson, James Chalmers, Benjamin Lewis, and Rich Greenhill for their helpful comments on this issue. Incidentally, if any readers are aware of a potential Northern Irish equivalent to s.3(2) of the Statutory Instruments Act 1946, please do contact the author.