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Mishcon Academy: Digital Sessions - In conversation with Adam Wagner: Lockdown and the law

Posted on 8 February 2021

Last week Adam Wagner, experienced human rights and public lawyer, spoke with Partner Louis Flannery QC about COVID-19 restrictions and lockdowns. Adam explained the legal implication of the latest lockdown, how legislation supports this, and provided his view on the current Government approach.

Adam has acted in six public inquiries and is currently Specialist Advisor to the Joint Committee on Human Rights COVID-19 inquiry. He founded both the multi-award-winning human rights charity EachOther and the acclaimed UK Human Rights Blog, and set up and also hosts the Better Human Podcast. He was shortlisted for Human Rights Junior of the Year in the 2020 Legal 500 Awards.

Mishcon Academy: Digital Sessions are a series of online events, videos and podcasts looking at the biggest issues faced by businesses and individuals today.

Louis Flannery QC

Whoever is listening or watching or both, welcome.  Lovely to have Adam Wagner with us here.  Known, I hope, to many of you as a human rights Barrister.  I’m going to describe him as a panjandrum of the pandemic; a doyen of the disease laws, a guru of the guidelines, an oracle of the ordinances - all 65 of them - and if you still doubt me, let me quote this from last month.  During a debate in the House of Lords on the amendments to the 2020 regulations – we’ll talk about them later – in which Baroness Jones of Moulsecoomb said, ‘My Lords, once again I congratulate Adam Wagner, the human rights Barrister, on analysing and explaining all these coronavirus regulations.  At the moment he’s perhaps the only person in the country who can make sense of this variety of regulations.  He’s doing a huge public service’.  Hear, hear!  For those of you in the audience who think that we lawyers are equally familiar with the 65 edits, 27 pieces of regulations and the two statutes passed or the one statute passed since March last year let me just say it’s not my specialist area, it’s not our specialist area.  We rarely get paid to look into them which is where Adam comes in.  I would suggest, Adam, you’ve got an unrivalled knowledge of the 102 sections of the Act and the plethora of regulations that it has spawned.  Some quickly drafted as you know with astonishing speed, but not entirely clear and largely brought into being with no Parliamentary scrutiny which is a subject we hope to come onto later.  But Adam knows much more than you or I about all of this.  Let’s get on with asking, Adam welcome. 

Adam Wagner

Welcome.  Thank you very much for having me.  I really appreciate it and thanks to Mishcon’s as well. 

Louis Flannery QC

Take us to the beginning.  The very first law.  When and how was it introduced?

Adam Wagner

So, all of the Covid lockdown regulations have been passed under a piece of legislation called the Public Health Control of Disease Act 1984, which has within it an emergency regulation-making power and a super-emergency regulation-making power.  And in a super-emergency, it’s not how it describes it but where it’s not reasonably practicable to lay the instrument before Parliament before it comes into force and get it approved, the Government can effectively bring in new criminal laws without any Parliamentary scrutiny at all until at least 28 days later.  And that’s the procedure they’ve used since February.  Just to give you a sense of how much things have changed, that original lockdown law was 11 pages long in its PDF form and the current lockdown law is over 120 pages long. 

Louis Flannery QC

By current lockdown law do you mean the one text from which you would have the source of everything as amended?

Adam Wagner

Yeah.  So, the all-tiers regulations which are the current, were at the source of the lockdown law.  It’s, it’s extremely confusing if you’re trying to figure out and I’m sure when these Covid cases start to roll in as they are doing for me, you have to try and figure out what was in place at what time.  So, it’s been… it’s certainly not been a process which has been planned. 

Louis Flannery QC

I’ll start with what I call my curiosity questions.  I receive a text from the NHS telling me to self-isolate because my name’s been given by a person who’s tested positive.  I feel I’ve been wrongly identified.  Can I do anything about it?

Adam Wagner

When you receive a formal notification from NHS Test and Trace, that triggers a legal duty for you to self-isolate which can be enforced with fixed penalty notices or even the Police forcibly taking you back to the place where you’re meant to be self-isolating.  And, and very recently, I think last week, the law was changed to allow the Police to have access to the Test and Trace notifications so they and the personal details of individuals.  So, we’re in quite a different enforcement place now. 

Louis Flannery QC

If I’m required to self-isolate am I allowed out to take a test?

Adam Wagner

Well, under the, under the self-isolation regulations you can, you can only really go out for very, very limited reasons.  One of which is to seek medical assistance where this required urgently.  But testing is not included in that list so I don’t think you really should be going out to get a test, particularly as you can get tests to do at home these days. 

Louis Flannery QC

Right.  Let’s say someone is handed a fixed penalty notice for breaching the Covid regulations.  Do they have a right of appeal against liability and against quantum?

Adam Wagner

I’ve had quite a lot of fixed penalty notices from clients who… which have been successfully challenged.  There’s no formal way of doing it.  There’s no formal appeal.  Unlike a parking fixed penalty notice.  What we, what I’ve done on behalf of clients is write direct, not me personally but solicitors write directly to the Police force.  You have to do it within the 28 days to avoid being prosecuted. 

Louis Flannery QC

Okay.  Someone is stopped in the park by a Police officer demanding to know why they’re walking there.  They’re not obviously in. Can they be issued with a fixed-penalty notice if they say nothing?

Adam Wagner

There’s no regulation which requires a member of the public to give… say anything to a Police officer.  For example, if they see you gathering in a group of 10 people that doesn’t look like your family, then they… and they ask everybody, ‘What are you doing?’ and nobody, everybody refuses to answer and they might reasonably believe you’re committing an offence, for example gathering with more than two people in a public place, you might find yourself on the end of a fixed penalty notice if you don’t account for yourself. 

Louis Flannery QC

Okay.  Next question.  I have a six year old daughter who has a good friend who lives a few doors down with her single parent mother.  Is there any restriction on my daughter and the, and her six year old friend seeing each other?

Adam Wagner

Outdoors they could take exercise together.  I’ve heard about educational bubbling with one other child from a class.  I don’t know whether that’s come from guidance from the Department of Education or not but as I understand it it’s the two children bubble within a class who are not going into school and technically that, since that’s sort of the purpose of education you it does fall within a reasonable excuse. 

Louis Flannery QC

As a chronic asthma sufferer, I understand that I am exempt from the obligation to wear a mask.  But am I required to show proof of my exemption and can I be served with a fixed penalty notice for not showing proof of exemption?

Adam Wagner

Well, as you say it’s a reasonable excuse not to wear a face covering if you’ve got any physical or mental illness or impairment or disability that would prevent you from wearing the, the face mask.  I think it can be potentially unlawful indirect discrimination to or even harassment to you know, make somebody prove it.  On the other hand, as with a lot of these regulation questions, it’s a bit vague and everybody, every shop and Police officer will handle it slightly different. 

Louis Flannery QC

Incoming extra set of quarantine hotels for people coming from abroad.  Question.  Is this an absolute certainty that is going to be introduced?  Question one.  Question two, when?  Question three.  Forcing someone to pay for a hotel.  Seriously?  Compliance with ECHR?

Adam Wagner

If, I think the answer is they will.  What they will look like is a big question and there’s a whole range of possibilities from the most extreme possible regulations which will be detention of individuals, which will give rise to a whole host of legal problems and potential issues.  In terms of whether they will make people pay for it you know, we gonna build a wall and we’ll make, make Mexico pay for it is effectively what’s going on, I think they will, because that’s the policy.  There’s World Health Organisation regulations which apparently we’ve signed up to which don’t allow for this.  However, whether that’s legally… whether those are legally actionable or not I don’t know.  But even if there would be an argument later on down the line in retrospect, they’re not going to, the Court, the Court’s pretty unlikely to stick their oar in to prevent the scheme going ahead.  But that’s… but who knows?

Louis Flannery QC

The regulations are being introduced with an alarming absence of any real scrutiny, certainly no Parliamentary scrutiny.  I’ve got to admit I, I worry particularly with this Government, as we know it doesn’t exactly have an exemplar record.  But is this going to lead to a general reduction in the scrutiny of laws?

Adam Wagner

I think this has been coming for a long time.  The use of Henry VIII powers.  Brexit is definitely one area where there have been… they’re now empowered through the Withdrawal Act to use them in all sorts of areas.  If you had said a year ago, we’re on the third of February, literally a year ago if you had said, ‘In a year’s time there will have been twice weekly draconian criminal laws brought into power by Matt Hancock signing a piece of paper’ you would have sort of you know, laughed me out of Court.  My worry is we’ve been you know, a frog being boiled during this past year in terms of Parliamentary scrutiny in terms of the rule of law and in terms of executive power.  So, we now accept as okay, as fine that the Government can just decide on astringent new criminal laws which affect everybody’s lives to, to the extent of what we can and can’t do in our own homes and they’ll be brought in just by the flick of a Minister’s pen. 

Louis Flannery QC

To combine Brexit and that Henry VIII power, the Scottish fishermen who came down to London to demonstrate were apparently being handed expository notices by The Met. 

Adam Wagner

Yep. 

Louis Flannery QC

Because I think they removed demonstration as an exemption.  Is there any way you might argue that, that that sort of lobbying on behalf of a business is a legitimate business activity?

Adam Wagner

Well, look, protest is the life blood of democracy.  It’s the safety valve, it’s how the population tells the Government what it thinks when it feels that other methods have failed.  Protest was not a listed reasonable excuse until the autumn where it was brought in as a listed reasonable excuse and it was taken out at the end of December when the, when tier four came in it was taken out.  I think the Police are probably wrong to treat protest as being banned.  I think it’s probably contrary to article 10 and 11 of the European Convention and I think it really needs to be put in front of a Judge very quickly to sort this out because it’s a problem for democracy if people feel they can’t protest. 

Louis Flannery QC

Somebody’s asked a question about shared gardens.  So, I’ll give you one example where there is a back garden that’s used by all four flats and a second one is a communal garden of which there are many certainly in North London where the houses back onto a communal space that’s private.  Is being in that space where there are other people allowed providing there’s no mixing or mingling?

Adam Wagner

So, you’ve got a communal garden then you know, you are in the place where you are living because you’re… that communal garden is part of the place where you are living.  The question is whether you can then gather with people who live in a different flat say but with you know, in the… share the same garden and I think - I don’t know – my, suggestion is just to keep to social distancing.  You’ve all got to use the garden together so keep two metres, more than two metres away from each other and try not to mingle. 

Louis Flannery QC

Do you know of any existing challenges to the regulations that are afoot by way of judicial review or otherwise.  Or planned?

Adam Wagner

I mean I know of a few planned ones because I’m involved with a few planned ones but there have been other challenges.  There’s been quite a lot of pre-action challenges sorry, threatened challenges which have been settled because in actual fact I think during this period the Government has been quite amenable to making sensible changes to the regulations or the guidance where people point it out.  I mean, they’re doing this on the fly and I think they know that.  I think the travel quarantine… the original travel quarantine regulations was challenged by airlines and that was settled with a change in the regulations just before it went to Court so, that was afoot. 

Louis Flannery QC

Alright and somebody’s asked an interesting one about a client and I quote, ‘… desperate to leave the UK to avoid being accidentally UK resident taxed.  They found a flight to Barbados in late January but thought they’d be breaking the law if they took it.  Was advised that flying was not an offence if only due to extraterritorial issues but that the offence was travelling to Heathrow’.  Is that right?

Adam Wagner

You’ve got to, everybody is subject to the requirement that you can only be outside of your home if you have a reasonable excuse and, and I don’t think avoiding tax consequences as being in the jurisdiction is a listed reasonable excuse and I very much doubt it will be an unlisted reasonable excuse either.  But you know, there seem to be plenty of people who are going to the airport and flying off places for all sorts of reasons but it’s, it’s another grey area.  It’s another difficult grey area. 

Louis Flannery QC

Adam, you’ve been a star.  Thank you so much. 

Adam Wagner

It’s been a pleasure. 

The Mishcon Academy Digital Sessions.  To access advice for businesses that is regularly updated, please visit mishcon.com. 

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