Sailing allowed in lockdown

[ip485]

Regulations and guidance have to be read together - that's how it works.

Not in Court, it doesnt.

Regulations (legislation) is enforceable, guidance is not. The Courts will only consider the guidance (potentially) when the legislation is not as clear as the afore said mud.

Of course not many people know this which is why ministers continue to frame recommendations as rules, regulations as guidance, and legislation as little as possible, because there is so little of it.

 

[Fimacca]

I know the police in different areas are doing different things. 7 miles was ok in Derbyshire (after some pretty ladies liked having their faces on the media tabloid front pages) , but 100 miles to the Brecons in Wales was not. Plenty fixed penalty notices issues in beauty hotspots by local police, and still are being issued. In Somerset they warn folk and send them away.
It depends on the subjective view of what distance is 'reasonable'.......

 

[ip485]

(None of which means I dont support sensible guidance).

In reality none of this really matters, in the event a FPN is issued, it is entirely a matter for the Court to enforce this, and you can be certain the Court will primarily be interested in the legislation and "reasonable" which is open to such wide interpretation as to cover most reasonable sins. (reasonable because this is actually used in the legislation).

 

[Lucky Duck]

I know the police in different areas are doing different things. 7 miles was ok in Derbyshire (after some pretty ladies liked having their faces on the media tabloid front pages) , but 100 miles to the Brecons in Wales was not. Plenty fixed penalty notices issues in beauty hotspots by local police, and still are being issued. In Somerset they warn folk and send them away.
It depends on the subjective view of what distance is 'reasonable'.......

The laws in England, Wales and Scotland are all rather different in terms of being outdoors so examples in different nations can be a bit misleading

 

[steveeasy]

Well it says as local as possible. so if it is not possible to stay local, can you travel further afield ? I do wonder what actually is going on in and around the country. some yards and marinas are carrying on as normal. clearly lots of owners are working on their boats if you watch PBO forum. My yard sent me an email 2 months ago stating the yard was staying open, but as members of the public could not move boats to other yards, It would close forthwith to owners. really strange letter but got the idea. Then I get an email this week. would I like my boat launched in a few days?. I responded stating I had to antifoul and fit anodes etc. and asked how I could do this while not being allowed to visit the yard. I asked if it was indeed closed. no response. so I am just going with the flow so to speak.

When the last lockdown ended we never got told we could return and I suspect I wont this year. What a MUG I am.

Steveeasy

 

[ip485]

"What is the difference between legislation and guidance?

To find out exactly what the rules are during the coronavirus pandemic, you need to look at both legislation and government guidance. Legislation sets out legal obligations and restrictions that are enforceable by law. If you do not abide by the legislation you are breaking the law. Guidance and advice is likely to be based on legislation (in which case it will be legally binding) and it might offer the best or most appropriate way to adhere to the law.

The law is what you must do; the guidance might be a mixture of what you must do and what you should do."

This is a lovely summary from a Yes Minister Civil Servant. You have to chuckle.

 

[matt1]

What an absolute waste of oxygen that Minister's reply was

I previously asked Hants Marine Police unit and as soon as I started being specific eg "is local within my borough?" they stopped replying to me.

I'm thinking Monday will see schools allowed back but precious little else.

 

[lustyd]

I'm thinking Monday will see schools allowed back but precious little else.

As soon as the twice daily jamboree outside the local schools starts up again I will lose all respect for any remaining lockdown rules with regard to staying away alone in my own property. I'm fine with the kids, and the teachers have my sympathy, but the unmasked crowds hugging one another and chatting for an hour twice a day? Not so much.

 

[ip485]

"(c)to take exercise outside—

(i)alone,

(ii)with—

(aa)one or more members of their household, their linked household, or

(bb)where exercise is being taken as part of providing informal childcare for a child aged 13 or under, one or more members of their linked childcare household, or

(iii)in a public outdoor place, with one other person who is not a member of their household, their linked household or their linked childcare household,

and sub-paragraph (3) applies in determining whether a person is complying with the limits in this sub-paragraph;"

and

"1.—(1) No person who lives in the Tier 4 area may leave or be outside of the place where they are living without reasonable excuse.

(2) For the purposes of sub-paragraph (1)—

(a)the circumstances in which a person has a reasonable excuse include where one of the exceptions set out in paragraph 2 applies;"

For the avoidance of doubt, this is the primary legislation. There is no "distance" test.

The exceptions in para 2 are not limiting, note the use of the word "include"

So the primary law is you shall not be outside your home without reasonable excuse. All that matters is do you have a reasonable excuse. You may well rely on Ministers having specifically said boating is a reasonable form of excercise, and therefore this is included in the examples of the permitted exceptions.

In contrast, Hancock has today been found to have broken the law, in that the Court has judged he has not discharged his duties in line with the requirements of the primary legislation. He would probaly not have broken the law if the primary legislation had said he could fail to disclose public contracts if he had a reasonable excuse for doing so. The legislation does not say this.

I suppose he could issue himself with a FPN, although the law makes no provision for this either, so he cant!

 

[NotBirdseye]

'tests' are usually created by judges. The definition of local btw will be:

Relating or restricted to a particular area or one's neighbourhood.

At least according to oxford english, which is a Judge's go-to.

 

[Lucky Duck]

'tests' are usually created by judges. The definition of local btw will be:

Relating or restricted to a particular area or one's neighbourhood.

At least according to oxford english, which is a Judge's go-to.

Tests cannot be conjured out of thin air by judges and, as has been discussed at some length on these forums, in the case of English law there is no such requirement.

Edit - in the absence of the legal limits included in Welsh and Scottish legislation there has been a tendency for certain police forces and individual officers to try and enforce what is published on the .gov website and what is said during press conferences as if it was law which causes practical problems

 

[ip485]

Where is the word local in the legislation?

 

[NotBirdseye]

Tests cannot be conjured out of thin air by judges and, as has been discussed at some length on these forums, in the case of English law there is no such requirement.

Edit - in the absence of the legal limits included in Welsh and Scottish legislation there has been a tendency for certain police forces and individual officers to try and enforce what is published on the .gov website and what is said during press conferences as if it was law which causes practical problems

Yes they can and yes they do. It's particularly common in the criminal courts. All common law is judge created and where legislation is unclear and guidance not provided judges have to fill the gap, this is done through what are known as the "rules of interpretation". It is then up to Parliament to re-legislate if the meaning has been misconstrued, it's also why we have courts of appeal, to ensure that these decisions are reached fairly. Judges have a whole host of guidance to aid them in the construction of such tests where tests are not provided by parliament. ... it is the English legal system that created the situation. Americans, Canadians, Australians have adopted similar mechanisms. All I can suggest on this matter is to ask a practicing barrister.

I agree that police forces (who are enforcers of the law and act at the behest of the executive) are having practical problems where trying to enforce guidance.

@ip485 Doesn't have to be in the primary legislation unfortunately. When trying to determine what the legislation means they do look at the guidance, a dictionary, the political debates and use various rules of statutory interpretation to try and figure out if it applies and if so, how to apply it. I'd recommend you read up on them, they're 'interesting' if not necessarily important.

 

[Lucky Duck]

Where is the word local in the legislation?

Indeed, if the absence of travel restrictions was an oversight by those drafting the Statutory Instrument they have had plenty of time to correct it especially when bearing in mind the very public cases that arose back in January involving both members of the public and the Prime Minister

 

[ip485]

I agree with regards to considering guidance, but only to the extent the legislation is unclear.

 

[NotBirdseye]

I agree with regards to considering guidance, but only to the extent the legislation is unclear.

Yep that's how it works .

 

[Solent Sailor]

Tests cannot be conjured out of thin air by judges and, as has been discussed at some length on these forums, in the case of English law there is no such requirement.

In my own area of law, I can think of half a dozen tests that have been created by judges over the years to interpret legislation that was not sufficiently precise (or more often, did not foresee the particular circumstances of a case). We are a common law jurisdiction - much of our laws are very much created by judges as they go along and always have been. Judges do look at government guidance as an aid to interpretation (but are not bound by it) and whilst looking at a dictionary (as suggested above) is one known tool, it isn't the only one.

Whilst much of this is interesting discussion whilst we're all sat at home bored witless, the simple answer is that you have to make your own decisions on what you do based on your own interpretation of the law and (yes) guidance. You decide your own personal risk tolerance for being stopped by the police if you go out, and what your response to their questioning will be. You may find that you are not stopped at all. You may be stopped and have a bobby who is very understanding (perhaps excessively so). You may be stopped and find that you are given the 9th degree and he/she wants to issue an FPN. Your decision then is whether to quietly accept it and move on, or take the matter to court and put your side across. Very very few cases will get to that stage and so whilst this is somewhat entertaining, I doubt any of us are going to find ourselves discussing this with a judge.

 

[Fimacca]

Totally agree solent.
Practically, You are not likely to be stopped. I travel for marine work around the country and have done so for all of the pandemic. most police officers will listen to your reason for a journey , accept it, and let you on your way. The most I have had to produce is a business card, and that was just once. Even ports police (boredom personified) are uninterested. I usually have to wake them up!
The moral question of whether to go, is different completely.
I check my boat regularly.

 

[V1701]

I'm stuck at trying to work out how to make a trip to McDonald's drive-thru into an essential journey...

 

[lustyd]

Buying essential items like food is allowed. McDonald's is technically food. Our local one looks busier than I've ever seen it