Thread by @syrpis

A quick thread - mainly for non-lawyers - on statutory interpretation and the Coronavirus Regulations.

In the first weeks of the law degree, students at @BristolUniLaw are disabused of the notion that statutes are easy to read. 1/

The example we use is the Street Offences Act 1959. Section 1 states that:

'It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.'

Students are invited to consider what conduct might be caught. 2/

Students are introduced to the 'literal rule', the 'mischief rule', and the 'golden rule', not so much 'rules' as attempts to explain the way in which statutes are interpreted (by judges, but also by others). 3/

Judges adhere to the ordinary meaning of the words used, unless that produces absurdity, or is at odds with the intention of the legislature. (I could go on at this point, but that's enough for these purposes...). 4/

Students are then presented with the facts of the 1960 case, Smith v Hughes. The case concerned prostitutes who were soliciting from a property (by knocking on a window), seeking to attract the attention of passers-by on the street. 5/

So... in your view, had they committed an offence? Were they, or were they not, 'soliciting in a street'?

Is the law sufficiently clear? What is the literal meaning of the section? What is the 'mischief' the legislation is attempting to combat? 6/

I don't think that any of the answers are clear cut.

The prostitutes were convicted in a magistrate's court; and then appealed. They lost.

The reasoning of Lord Parker attracts particular attention. 7/

He argues that the language is ambiguous. 'It does not say there specifically that the person who is doing the soliciting must be in the street. Equally it does not say that it is enough if the person who receives the solicitation or to whom it is addressed is in the street.' 8/

So, he then feels able to look at the mischief the Act is aimed at. He says: '*Everybody knows* that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes.' 9/

'It can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window...; in each case *her solicitation is projected to and addressed to* somebody walking in the street.' 10/

Students are then invited to reflect on the breadth of that formulation, whether they consider it to be right (both in this case, and more generally, whether to discuss how judges should interpret statutes). 11/

They are also invited to consider what conduct is caught by Lord Parker's formulation. Is, for eg, a prostitute who sends a message to someone, which they happen to receive on the street, within this section? Does it matter where the prostitute happens to be? 12/

Enough about Smith v Hughes. Let's turn to the Coronavirus Regulations. They are a new law, attempting to deal with a new threat. They were not scrutinised in Parliament. They are here: legislation.gov.uk/uksi/2020/350/… 13/

Unlike the Street Offences Act, these Regulations are not primary legislation; rather they are made by a Minister, in the exercise of powers conferred by the Public Health Act 1984, in response to 'a serious and imminent threat to public health'. 14/

From the preamble: 'The Secretary of State considers that the restrictions and requirements imposed by these Regulations are proportionate to what they seek to achieve, which is a public health response to that threat.' 15/

If they are held to be disproportionate, they may be ruled unlawful. There is lively legal debate.

Assuming they are lawful, they should be read with the public health purpose in mind.

I'll just look at Regulation 6, titled 'restrictions on movement'. 16/

Reg 6(1) provides: 'During the emergency period, no person may leave the place where they are living without reasonable excuse'. 6(2) states that 'a reasonable excuse includes the need—', and goes on to list 13 examples. 17/

Now, if the interpretation of the words 'in a street' is controversial; then so too is the interpretation of the Coronavirus Regulations.

Think, for example, about the use of the words 'reasonable excuse', and 'need'. Think of other 'needs', not listed in the Regs. 18/

[I'm leaving to one side the human rights law concerns. Such concerns might affect the legality of the Regs, and they might also affect the way in which the Regs should be interpreted.] 19/

I guess that there are 2 main points to all this (3 if you include 'passing the time'). First, statutory interpretation is not an easy task. It is a matter about which reasonable people often disagree. 20/

And second, in the first instance, it falls to the police to interpret the criminal law. As in Smith v Hughes, they may interpret their powers widely. It is only via the operation of the law that we discover (often too late...) whether or not they were 'right'. 21/21