Freedoms vs Permissions – a liberal look at the Court of Appeal judgment on the coronavirus regulations – The Law and Policy Blog (davidallengreen.com) Or ignore it because everything's just fine. Whatevs. The classic model of freedom in a common law jurisdiction (such as England) is, of course, that one is free to do what one wishes – unless there is a specific prohibition. This is the sort of liberty emphasised by those who trumpet freedom under the common law. The court, however, seemed quite relaxed at this position being inverted under the regulations – that the starting point is that everyone is prohibited from doing what they want in respect of freedom of movement and assembly, unless there was a permission. The phrase ‘reasonable excuse’ has a nice nod-along quality that will make many people think ‘what could possibly be wrong with that?’. Nonetheless it hands the decision on whether what you are doing is permissible to an official (or the court), and it will be they and not the individual who is the arbitrator of whether an excuse is reasonable or not. And to take the position to an extreme: imagine a system where everything was prohibited unless an official (or the court) was satisfied you had a reasonable excuse. That a person was never free to do anything, only to have the reasonable permissions of the authority. What could possibly be wrong with that?
The court only becomes the arbiter of a 'reasonable excuse' because the (secondary) legislation is unspecific. It would have been open to the minister to specify what was a 'reasonable excuse'.
