COVID-19 lockdown: how far may you stray?

We are currently in level 3 lockdown in response to the COVID-19 pandemic.

How far may we travel from our home or residence to get some exercise?

The law must not be so vague as to be meaningless. This is not to say that all vagueness is meaningless. Courts are familiar with getting to grips with concepts such as, what is “reasonable” force in self-defence, what is “disorderly” behaviour, what is “indecent” material, etc.

The lockdown conditions are prescribed in the Health Act (COVID-19 Alert Level 3) Order 2020.

Of interest here is clause 7(e)(i):

“A person is permitted to do any of the following as essential personal movement: ... leave their home or place of residence for the purpose of exercise or other recreation if—

... it is done in an outdoor place appropriate for that kind of exercise or recreation that is readily accessible (including by using their vehicle) from their home or place of residence (and, in any case, is within the same or an adjacent region); ...”

The expression “readily accessible” is not defined in the Order, but “region” is.

At this point there is some complexity, for “region” means:

“the area of the Civil Defence Emergency Management Group (under the Civil Defence Emergency Management Act 2002) of which the relevant territorial authority is a member”.

The central concept here is a civil defence emergency management group (CDEM group). There are 16 such groups in New Zealand. Territorial authorities are listed in Part 2 of Schedule 2 to the Local Government Act 2002.

So, if you are in Auckland, you are in the territorial authority of the Auckland Council, and this is a member of the CDEM Group called the Auckland CDEM Group, indicated on the map.

Sticking with the Auckland example, “adjacent” regions are the Northland CDEM Group, and the Waikato CDEM Group. In contrast, the Bay of Plenty CDEM Group is not adjacent to the Auckland CDEM Group.

This is, it turns out, quite straightforward. But it leaves us asking, are all locations within the Auckland CDEM Group “readily accessible” to a person who resides in the Auckland CDEM Group (or to a person who resides in the Northland CDEM Group or in the Waikato CDEM Group)?

Why does the Order mention these groups at all, if the more constrictive condition on movement is the “readily accessible” one? Or, does “readily accessible” mean something like by one mode of transport (hence the reference to vehicle). Does the Order prohibit movement by car followed by completion of the journey on horseback? I jest, of course. But does it prohibit travel by car then by bicycle?

But Don, you may say, the government has put guidance on this on its COVID-19 website. It says, under FAQs for recreation:

“How far can I drive to do a recreation activity?

“You should drive as short a distance as you can, and still do the activity. You must stay local.

“Your nearest recreational area could mean travelling to a neighbouring region if you live on a regional boundary, as long as this is still local and a close distance to your home. Travel to your nearest park or beach, not your favourite one.”

It plainly says here that the requirement is “stay local”.  This is further explained under the heading Exercise at Alert Level 3:

“Where you can exercise

“Stick to your local area. For example, go to your nearest beach or park, not your favourite one. Staying overnight at a bach or holiday home is not permitted.

“You should drive as short a distance as you can and still do the activity.

“If you live on a regional boundary, this might mean travelling to a neighbouring region. This is fine as long as it’s still local and a close distance from your home.”

Quite understandable. Why isn’t this in the Order? Being advice from the executive branch it is not law, unless it comes within the powers of delegation of the official who issued the Order (the Director General of Health). But under the Health Act 1956 the Director General has no power of delegation in this respect (note the repeal of s 5B; current delegation powers exist only under s 112K in respect of the National Cervical Screening Programme).

To what extent, as a matter of law, are the executive indications about staying local able to be used to interpret the Order? The Interpretation Act 1999, ss 5 and 34 are relevant here. Section 34, specifically relevant to orders of this sort, refers us to the Act under which the order was made, but the Health Act does not define “readily accessible”. We are left wondering whether “readily accessible” really corresponds to only “staying local”.

Lord Sumption has stressed the importance of distinguishing law from executive directive, lest freedoms be eroded by fiat. The courts might be cautious about applying executive directives instead of legislation (in this case, subordinate legislation in the form of the Director General of Health’s Order). Everyone needs the law to be clear. Instead of using the generality “readily accessible” – which courts can interpret but of course after the event of an alleged infraction – the order should use agreed units of measurement: you may walk for X km, you may drive for Y km and then walk for X km.

But where is the legislative authority for including restrictions on movement in an Order? This Order was made purportedly, as stated in the first sentence of the Order, pursuant to s 70(1)(f) and (m) of the Health Act 1956. Prohibition of congregating is allowed, but there is no reference to prohibiting movement.

Permitting people to move outside their residences for the purpose of exercise is so obviously desirable that, if on strict interpretation there is an absence of statutory power to make orders regulating people’s movements, some justification needs to be found. Enforcement requires lawful authority. Constitutional lawyers will point to a shift in what Kelsen called the Grundnorm, according to which near-universal public acceptance of rules is what gives them de jure status. Radical indeed, to the point of being revolutionary (and indeed this idea is used to explain successful revolutions). However, such an esoteric constitutional and jurisprudential concept, like arguments that endeavour to bridge the gaps that sometimes occur between law and common sense (or, if I might be permitted to add another language, la réalité), is unlikely to be well received by judges.

Obviously the power to regulate movement needs a source in legislation.

Update: And now it has one: the COVID-19 Public Health Response Act 2020, s 11(1)(a), and the COVID-19 Public Health Response (Alert Levels 3 and 2) Order 2020, clause 9(e), although it still uses the concept of ready accessibility. I guess that if you have walked there from home the place must be readily accessible. For the High Court (Full Bench)'s view on vagueness, see Borrowdale v Director-General of Health [2020] NZHC 2090, at [291]. See also S v Commissioner of Police [2021] NZHC 743 at [84] on the requirement of clarity for the purposes of lawfulness under the New Zealand Bill of Rights Act 1990.

Stare decisis: contrasting judicial opinions in Ramos v Louisiana

In my post of 16 April I suggested that ascertaining the ratio of a multi-judge case can be entertaining. Who could have guessed how great the entertainment is when a bench of nine divides over the ratio of a case decided by the same Court?

This was the amusing part of Ramos v Louisiana USSC No 18-5924, April 20, 2020. The case holds - you could call this its ratio - that the Sixth Amendment right to jury trial requires that in the States (as with the federal courts and the courts of the territories) juries must be unanimous in their verdicts.

Of more general interest is the Court’s treatment of its 1972 decision Apodaca v Oregon, 406 U.S. 404. This decided that majority verdicts in State courts are permitted by the Sixth Amendment. On this the Court split 5-4, the 4-4 stalemate being broken by the fifth judge, Powell J. His reasoning was idiosyncratic, to say the least. He said that the Sixth Amendment means one thing for the federal courts and the courts of the territories, and another for the state courts.

Suppose, as occurred here, the reasoning of the other judges was on two competing lines, each cancelling the other out. When this sort of division occurs, does the idiosyncratic reasoning bind subsequent Courts? It would if it were ratio. If the idiosyncratic reasoning, being ratio, has no basis in precedent, can subsequent courts simply say it was wrong even if it has been applied for nearly 50 years? Or does the idiosyncratic opinion of one judge bind subsequent benches of nine judges?

Although following precedent, stare decisis, is extremely important for the stability of law (see the opinion of Kavanaugh J, emphasising that in respect of constitutional precedents, a decision to overrule should consider whether they are egregiously wrong, whether they have they caused social harm, and whether overturning would cause undue social disruption), human ingenuity is such that a later court can always find a way to decline to follow a previous decision. The Court did this in Ramos. The dissenters were Alito J, joined by Roberts CJ and Kagan J. They applied Apodaca and would have held that majority verdicts are permissible in state courts. Three of the majority judges, Gorsuch J, joined by Ginsburg and Breyer JJ would have preferred to have given Apodaca no precedent value. But, joined by Sotomayor J, and by Kavanaugh J, they held that Apodaca was a precedent but that it was wrongly decided. Thomas J concurred in the result, that unanimous verdicts are required in state courts, but for different reasons: he drew upon the Privileges and Immunities Clause of the Fourteenth Amendment rather than its Due Process Clause, and on that basis he distinguished Apodaca. The dissenters, while not necessarily thinking Apodaca was correctly decided, regarded it as a precedent that should be followed, Alito J joined by Roberts CJ said that it should be followed because of the reliance that had been placed on it, while all three dissenters agreed that its ratio is that when a defendant is convicted in a state court and at least 10 of the 12 jurors vote to convict, and the defendant argues that the conviction violates the Constitution because the vote was not unanimous, the challenge fails. This narrow view of the ratio enabled these judges to disregard Powell J’s idiosyncratic reasoning while applying his conclusion.

The majority decision brought Louisiana (and Oregon) into line with the other States. In any event, Louisiana has enacted a requirement for unanimous verdicts in trials for crimes committed on or after 1 January 2019 (see Kavanaugh J), so the decision can’t have been a great surprise for anyone.

The unanimity requirement cuts both ways, although this is seldom pointed out. A defendant can’t have an acquittal unless all jurors agree on that verdict. When a jury can’t reach a verdict a retrial is usually ordered. So yes, unanimity is a safeguard against a wrongful conviction, but it is also an obstacle to an acquittal.

For those who are interested in whether the Supreme Court is going to overturn Roe v Wade, Ramos v Louisiana provides some insight into judicial attitudes to precedent.

Ramos is also worth looking at for its various references to the history of jury trials.

And here is an insight into the judicial process, by Edward Lazarus in his examination of the judicial culture of the United States Supreme Court, Closed Chambers – The Rise, Fall, and Future of the Modern Supreme Court (1998), pp248-249:

“The most we can expect and what we must demand from the Court as it expounds the law is an integrity born of consistency and sincerity. Legitimate constitutional arguments are not limitless; they may take several forms familiar to law. They may be based on history, on precedent, on the text, on inferences from the way our government is structured, on appeals to ethics, or on prudential considerations about the consequences of a decision. Often, these modes of argument are used in combination, melded into a convincing whole. And none is perfect for every circumstance. Deciding which modes of argument best suit the facts and circumstances of a given case is both an inevitable moral choice and the essence of judging.”