Be reasonable

Update: New rules 13th May change the examples that are reasonable.

This is a blog about a little bit off the way laws are drafted. I am not an expert on legal drafting, and not a lawyer - however, laws are meant to be understood - as a member of the public I should be able to work out if something I am about to do is legal or not, even if that means I need a bit of help to understand the way laws are written. I'd be delighted in any feedback from those that are experts.

I'm picking, topically, on section 6 of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 as amended. In particular, it basically says, in 6(1) that you need a reasonable excuse to leave home.

So that gives us a test - is my excuse a reasonable excuse or not. If that is all it said, it would be somewhat open to interpretation, and my view could be very different to yours. This is an issue where one party is a policeman and disagrees on what is and is not reasonable.

Of course, I would hope, being public health legislation, not public order, that any excuse that does not pose a public health risk should be considered reasonable. It is shame there is not paragraph clarifying the basis of a reasonableness test. Surely taking your household for a drive to a secluded spot for a picnic should be reasonable, clearly, as not a health risk as you do not interact with anyone. Even more reasonable if you ensure well serviced car, enough fuel, and driving carefully. Sadly this is not so simple, and we know the police are quite clear on that not being reasonable, so we need clues. We need to know how to apply this reasonableness test.

6(2) of the regulations helps, it defines reasonable as including... and a list of things. The use of the word "including" here is very important as it means it is a non-exhaustive list. It means some thing may be reasonable but not on the list. Sadly it gives no real idea how to tell if things not listed are or are not reasonable. So, for example, I would consider feeding a horse reasonable, but that probably comes under 6(2)(h) as a legal obligation under animal welfare laws.

This is where a computer programmer and a lawyer would diverge somewhat. To a computer programmer the rules in 6(2) are simple tests - if you pass any then you are reasonable. If not then there is an implicit final "generally reasonable" test, but the wording of the tests in 6(2) would not have any bearing on that "generally reasonable" test.

However, the wording does matter. The items in 6(2) are not simply positive things. They do not say "this is reasonable" and "that is reasonable", no, they say "this is reasonable except in this case", and "that is reasonable, if another thing applies".

This is quite clever in a way as it uses examples to couch the boundaries of the test, to say what goes in and what goes out - where the line is drawn.

So, for example, 6(2)(ga) to visit a burial ground or garden of remembrance, to pay respects to a member of the person’s household, a family member or friend; says visiting a burial ground is reasonable, but only in some cases. It has caveats, and they matter. It is was just that visiting a burial ground was reasonable the clause would not go on to say member of the person’s household, a family member or friend at all, so this means that visiting someone you don't know is not in fact reasonable.

So even though 6(2) is a non exhaustive list, using "includes", every restriction or caveat in the clauses in 6(2) effectively define the edge - line beyond which something is not reasonable, for those things that are listed.

Looking at 6(2)(b) to take exercise either alone or with other members of their household; the caveat is either alone or with other members of their household matters, and so exercise with someone else is not reasonable. As I say, as a computer programmer it would be different - exercise with someone else would simply fail 6(2)(b) but a "generally reasonable" test would not consider why it failed 6(2)(b), or that 6(2) has a test relating to exercise in it with caveats. However in English, those caveats start to matter as we list "exercise" and they say where the line is drawn. Exercise itself is not something not listed, and so possibly also included, because 6(2)(b) does cover exercise.

Looking at 6(2)(f) to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living; seems to clearly relate to doing work (or volunteering, etc) but it has a caveat of not being possible to do it from where you are living. Again, the clause covers working, so you would not consider it reasonable to go out to work when you can do it at home - even if that is not a public health issue.

Of course, the use of "includes" does allow for something completely different to be reasonable and not be in the list. Ideally something that is obvious to all that it is clearly reasonable. But anything that is in the list with deliberate constraints clearly defines the boundary and implied directly what is beyond that boundary and hence not reasonable.

Sadly, 6(2)(f) also has the caveat "to travel", which directly implies that outside of that caveat, working away from home at all is not a reasonable excuse.

Sadly, on that last point, as 6(1) now needs an excuse to simply be outside, it suggests doing work that is not travelling for work, outside your home, is no longer reasonable.

Oddly even 6(2)(k) in the case of a minister of religion or worship leader, to go to their place of worship; is a problem as such a minster can go to their place of worship, but then no longer has a reasonable excuse to be there, or even to travel back home!

Some clauses just muddy the water, like 6(2)(l) to move house where reasonably necessary; effectively defining reasonable excuse as a thing that you need to do because is reasonably necessary! That is not helpful...

P.S. Stay home!