People who lie about visiting a “red list” country where new Covid-19 variants have been identified could face ten years in prison, the Health Secretary Matt Hancock suggested earlier this week.
You might have expected that a new offence carrying such a severe penalty would require legislation to be passed through parliament. But Downing Street has said the government does not intend to give MPs a vote on the introduction of the ten-year sentences. It does not even intend to create this offence by amending the existing Covid-19 legislation.
Instead, the government plans to use the Forgery and Counterfeiting Act 1981 to enforce the new travel restrictions. “If people failed to abide by the rules and inaccurately or purposefully didn’t fill in the relevant documentation properly they would be charged under the Forgery Act which includes forging or lying on forms,” a spokesperson said.
It is worth considering whether this is realistic in practice. The Forgery Act refers to forging official documents such as passports and share certificates. It is unclear whether giving incorrect information on a form that is itself genuine would be covered.
Adam Wagner, a human rights barrister who has been analysing the legal implications of coronavirus legislation since the pandemic began, is dubious about how Hancock’s attempt to get tough on borders would work in practice.
“It’s risky as there is no guarantee that the Crown Prosecution Service (CPS) or the courts will follow the government’s edict and use the Forgery Act for a purpose it wasn’t designed for – filling in the wrong facts on an immigration form,” he says, suggesting that the proposals are a clumsy and panicked response.
“If the government had planned this, it could have added an offence to the Coronavirus Act back in March or passed a new piece of primary legislation. But as with most Covid laws this is seat-of-the pants, last-minute policymaking which is why the government is trying to put a square peg in a round hole [of the Forgery Act].”
[see also: Why is the UK’s Covid-19 quarantine plan so weak?]
Even if the CPS did decide to prosecute rule-breakers, the scandalous state of the courts system, with a backlog of 54,000 unheard cases, means they probably wouldn’t be tried until 2022. Fast-tracking trials for Covid travel breaches could be an option, but it seems politically unwise at a time when the victims of serious crime are waiting more than a year for justice.
It is questionable whether judges would pander to the government by handing out such punishments. The possibility that someone would actually be sentenced to a decade in prison for this new crime is extremely slim. As Jonathan Jones, the former head of the government legal department, tweeted: “If anyone is EVER sentenced to ten years for lying on the form, I will eat a face mask.”
All this is not to excuse the government for having an essay crisis moment on border security, a year into the pandemic, and reaching for a shortcut. There is a reason we do not generally allow ministers to conjure new crimes out of thin air. Parliamentary scrutiny – particularly in the House of Lords, where new laws are stress-tested – plays a crucial role in the development of good legislation. Making things illegal that were previously legal takes time. When the Liberal Democrat MP Wera Hobhouse sought to make up-skirting (taking pictures of someone’s genitals under their clothes without consent) a specific offence, punishable by two years in prison, it took more than a year from the moment the Bill was introduced to the moment it entered law.
As the contradictions surrounding various coronavirus restrictions over the past year (on childcare exemptions, exercising and the legality of walking with a takeaway coffee) have shown, when the government invents new rules unilaterally, it tends to make errors and leave grey areas.
There is also a question of proportion. The Transport Secretary, Grant Shapps, yesterday defended the ten-year sentences, suggesting the maximum penalty was appropriate given the seriousness of the crime. But is it? Travelling to a “red list” country and failing to quarantine is obviously extremely reckless behaviour, as it risks importing a vaccine-resistant strain of the virus into the UK. But while it has the potential to cause great damage, is it comparable to other offences which inflict clear and definite harm?
“Depriving someone of a decade of liberty for telling a fib on your return from Portugal is absurd,” says Matthew Paul, a criminal barrister at Civitas Law. “There is no good reason that an offence of that nature should carry the same maximum sentence as riot, possessing prohibited guns, poisoning with intent to endanger life, or incest with a child under 13.” He also notes that the suggested sentencing range for someone of medium culpability who obtains up to half a million pounds by fraud is between 18 months and four years.
It is striking that much of the backlash against Hancock’s announcement has come from within the Conservative Party itself. The former attorney general Dominic Grieve dismissed the penalty as “draconian” and “entirely disproportionate”, while the government’s solicitor general, Michael Ellis, is reportedly concerned about its severity.
Even if punishing someone with ten years in prison is merely an “empty threat” as Keir Starmer, himself a former director of public prosecutions, called it, the fact that it is even being discussed is disturbing.
“To create an offence this serious, which could affect so many people, without parliamentary approval is an abuse of the law-making process,” says Paul.
This doesn’t make ministers look tough; it shows they don’t understand how the law works.
[see also: Why we shouldn’t worry about vaccine passports]