Suppression vs reporting; birders’ obligations during lockdown. (1 Viewer)

I am not sharing my sightings on my local patch on the main German bird website, as it is already overrun by locals seeking an alternative to shopping. There is not much space at the best viewpoint, so I don't want to encourage any birders who wouldn't visit normally.

Interested people who most likely will not visit can still find my sightings elsewhere. I might also report something really good, as there is no travel ban. I wouldn't hang around to socialise, as "social distancing" is obligatory.

In fear of a mass outbreak of 'stoopid' this weekend, the UK government has just issued the following statement.

'Stay at home is an instruction, not a request'......

Does that come with the usual daily allowance of exercise, dog walking and shopping, you'd assume so but not immediately clear and if it does, what has really changed?

My takeaway from this is that we can expect to see more Police enforcement.

andyadcock said:

In fear of a mass outbreak of 'stoopid' this weekend, the UK government has just issued the following statement.

'Stay at home is an instruction, not a request'......

Does that come with the usual daily allowance of exercise, dog walking and shopping, you'd assume so but not immediately clear and if it does, what has really changed?

My takeaway from this is that we can expect to see more Police enforcement.

Click to expand...

Andy

This is my difficulty with politicians. They ignore the fact that they draft the legislation. They talk a good game (sometimes) but legislate poorly. Sadly, because of the drafting, it is more of a request than instruction.

The words 'essential" and 'necessary' do not appear in the Statutory Instrument (save for talking about essential supplies). Neither does a clarification that exercise should be daily and start from home without a vehicular journey and public open spaces should be shut to avoid congregations.

On the latter two points, other than daily, I struggle with any real logic but there you go. But if that is the scientific advice, it should say that and be competently drafted.

What appears in the legislation is 'reasonable excuse' and a non-exhauative list. A trainee in their first week could have drafted it better and as a result, you get the police attempting to enforce against rhetoric not law.

The poor drafting will cost lives. A friend's father-in-law died yesterday. The inadequacy of our politicians will sadly mean that more than should have done otherwise will join that number.

Thankfully most of us are acting as needed irrespective of our poor politicians. Let's hope it has an effect. Perhaps weeks before we can tell.

Stay safe all.

If I was in authority I would have clear guidelines/rules something like

1. Unless you need to leave your home stay put.

2. 'Needs' should be essential such as food shopping, medical, emergency.

3. Additionally you may leave your home for one period of exercise a day: this should be as close to home as practicable and should not involve being away from home for more than one hour; you may drive up to ten minutes to reach a suitable exercise site.

4. When away from home avoid approaching within two metres of anyone wherever possible.

5. You might think you know better than the authorities and you may deem yourself an expert on epidemiology but best thing is to follow the guidelines.

Steve Lister said:

If I was in authority I would have clear guidelines/rules something like

1. Unless you need to leave your home stay put.

2. 'Needs' should be essential such as food shopping, medical, emergency.

3. Additionally you may leave your home for one period of exercise a day: this should be as close to home as practicable and should not involve being away from home for more than one hour; you may drive up to ten minutes to reach a suitable exercise site.

4. When away from home avoid approaching within two metres of anyone wherever possible.

5. You might think you know better than the authorities and you may deem yourself an expert on epidemiology but best thing is to follow the guidelines.

Click to expand...

Steve

That fills most of the holes in the Statutory Instrument. Some of it is there. Of course, the Statutory Instrument is what gives the police powers so guidelines and speeches are insufficient.

All the best

A good summation on some of the current 'guidance' is available on the BBC website - https://www.bbc.co.uk/news/uk-51506729. A few points that I can see people using as a potential loophole to go birding:
- People should only exercise once a day, although in England, Scotland and Northern Ireland there is no legal ban on exercising more than that.
- Guidance to police says that the public shouldn't be sanctioned for "travelling a reasonable distance to exercise" - although no definition has been given for
- No mention is given to how long you can exercise for

How about if you take an hour's exercise, then go to the shops on foot for necessary food without going home in the middle?

Well it's like all the guys you see with the cycling gear on; you're not telling me they get kitted out in all that just to be out an hour. I live on a route to the Yorkshire Dales and they come past early doors; out for a day's cycling I'm sure.

Paul Chapman said:

Steve

That fills most of the holes in the Statutory Instrument. Some of it is there. Of course, the Statutory Instrument is what gives the police powers so guidelines and speeches are insufficient.

All the best

Click to expand...

I think you will find that the police already have most of these powers under PACE - the additional powers (ie temporary emergency powers) are provided for in the Coronavirus Act,2020 ie in relation to police enforcing government and Dept of Health advice/policy.

Statutory instruments are widely used in situations where immediate action is required (since they don’t suffer the tedium of passage through Parliament) as such, they are often drafted in a hurry ( and not intended to be necessarily read as fait accompli but rather to embrace the flexibility for Ministerial discretionary powers). This makes S.I.s ideal for use in changing day to day events that the parent Act can’t legislate for. Unfortunately, as such, they are not characterised by (nor subject to) the same degree of legal ‘certainty’ as the enabling or parent statutes. (Of course the latter, often equally poorly drafted, are the work of Parliamentary Counsel/the Law Commission, so not drafted by politicians)

Police powers

Turning water in to whine...................

andyadcock said:

Turning water in to whine...................

Click to expand...

And those policemen are breaking the 2 metre rule as well 3


Quis custodiet ipsos custodes? 8-P

Deb Burhinus said:

I think you will find that the police already have most of these powers under PACE - the additional powers (ie temporary emergency powers) are provided for in the Coronavirus Act,2020 ie in relation to police enforcing government and Dept of Health advice/policy.

Statutory instruments are widely used in situations where immediate action is required (since they don’t suffer the tedium of passage through Parliament) as such, they are often drafted in a hurry ( and not intended to be necessarily read as fait accompli but rather to embrace the flexibility for Ministerial discretionary powers). This makes S.I.s ideal for use in changing day to day events that the parent Act can’t legislate for. Unfortunately, as such, they are not characterised by (nor subject to) the same degree of legal ‘certainty’ as the enabling or parent statutes. (Of course the latter, often equally poorly drafted, are the work of Parliamentary Counsel/the Law Commission, so not drafted by politicians)

Click to expand...

Here is the Act......

http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted

Here is the Statutory Instrument:-

http://www.legislation.gov.uk/uksi/2020/350/made

I confess for the second time in this thread your statements of legal opinion and the confidence with which you have expressed them - previously the manner in which public policy would be implied so strongly into contractual arrangements - has surprised me a great deal. I may be missing something but you may or may not have seen Lord Sumption's comments - https://www.theguardian.com/world/2...eme-court-judge-lambasts-disgraceful-policing - which match my own on what the police powers are though differ on what I believe they should be!

I may be missing something obvious and I have certainly disagreed with his handling of some cases both as a judge and formerly when he was a barrister but I have messed around in the law for a quarter of a century so have some track record - though in respect of civil rather than criminal matters.

Keep safe.

Paul Chapman said:

I confess for the second time in this thread your statements of legal opinion and the confidence with which you have expressed them - previously the manner in which public policy would be implied so strongly into contractual arrangements - has surprised me a great deal

Click to expand...

I think you have misunderstood me in both incidents -(or I am happy to take responsibility if I wasn’t clear)

Re. contractual/civil claims and public interest/policy - as you know, I was referring specifically to the floodgates principal often cited by the judiciary in civil suits - there are many precedents for claims being upheld or denied for public policy reasons. In this incidence, I was offering no ‘legal opinion’ (and in fact qualified it with it having been a long time since I worked in a legal environment/studied law ) but offering up rather a possiblereason why in a potential claim against the rare bird news organisations for partial withdrawal of service (since someone asked) mightbe seen as having no merit on the grounds of public policy interest since there have been suspension of contracts on a massive scale since the UK restrictions came in.
https://en.wikipedia.org/wiki/Floodgates_principle

This other point has nothing to do with ‘legal opinions’ its high school politics about how legislation is drafted:

As far as legislation is concerned, you made a general comment vis a vis politicians draft poor legislation- I was simply clarifying that they do not draft statutory law/Acts of Parliament, my point being those can be equally poorly drafted, especially when brought into force as a knee jerk reaction or just in a hurry (eg The Paternity Law and Dangerous Dog Act (s) spring to mind).

I’ve read the Act too, which give police (and immigration officers) powers of arrest for those believed to be infected by c19 and powers relating to premises, gatherings, events etc - temporary powers but enshrined in law for the next 24 mnths (I believe). Note also PACE and amendments Section 34 (as referenced in SI)

http://www.legislation.gov.uk/ukpga/1984/60/section/24

Please note too I said ‘most’ police powers of arrest/public order are already enshrined in Law, the Home Secretary, I did not disagree, has extended the application of these powers to enforce the Health and Safety policy using his Ministerial powers in SIs - the new incidences to which police can bring powers of enforcement are laid out (not very difinitively!) in the SI regs

As for the way the police are exercising the powers they have been granted - let me be clear at no time have I said they are not going beyond their legimate powers in the way some of the situations have been handled - I made no claim that these oversteps were enshrined in law in primary or secondary legislation, again, maybe this wasnt clear in my earlier comments - I have recently had personal experience/contact with the police over a non-related issue and it was quite clear there was no reasonable level of comprehension of what rules have been imposed or how far they were supposed to go to enforce them. I totally agree this sets a very dangerous precedent and most certainly the police in some situations are over-reaching in a way that is very disturbing.

Apologies for going off topic! Lets get back to the mundane is suppression a good thing or a bad thing - so I guess it will probably be a lottery depending on where you live, whether you will be arrested for twitching this weekend

Yeah, picking holes in the legislation is easy. Still can't really get away with saying the law was so poorly drafted, you just had to do the stupid thing.

First post by the way, was bored enough to finally register!

Anyway, how is this even a question? Of course a putting out news of an accessible mega is going to encourage other birders to travel from all over and gather one place. We've all seen how badly some numpties behave when things are normal, and who's going to properly social distance when you need your scope in just the right spot?
Meanwhile NHS staff are putting in 48 hour shifts and some of them, very sadly dying of this infection.

Still, good luck to any muppets who do twitch, explaining how ticking an iberian chiffchaff made their journey essential should entertain the police.

DB

Whilst we may be disagreeing on legal niceties (and you appear to be conflating various bits of tort and contract law to me - this really is my bag you know - 25 years at the coal face, Court of Appeal twice - one on contract & one on tort, etc), I suspect we are violently agreeing on the important thing and that's we would like to see stronger clearer prohibitions.

I'll continue to hold politicians responsible for legislation including Statutory Instruments and in particular the Secretary of State for laying down this one in its inadequate form. Sadly, you do not need to pick holes in the Statutory Instrument, the holes are that big you can literally drive through them.

The attached is an interesting read though tangential.

In the meantime, I need American Herring Gull for Britain and I do not have the slightest interest in it despite the fact that it wasn't suppressed. I am unaware that anyone has twitched anything by any proper definition and I would be surprised if anyone tried to see an Iberian Chiffchaff that wasn't.

All the best

Paul

Paul Chapman said:

I'll continue to hold politicians responsible for legislation including Statutory Instruments and in particular the Secretary of State for laying down this one in its inadequate form. Sadly, you do not need to pick holes in the Statutory Instrument, the holes are that big you can literally drive through them

Paul

Click to expand...

Just to be clear though vis a vis politicians and legislation- my comments were in regard to Statute Law (as opposed to statutory instruments) and were specifically in response to you saying politicians drafted legislation not as you are saying now responsible for - this is an important difference when one is making general remarks about the ineptitude of politicians in ‘drafting’ legislation as people might assume Politicians draft the Acts of Parliament too. Of course our elected representatives in Parliament are ‘responsible’ - this is one of the foundations of democracy!

I have also had an equal amount of relevant experience in the political arena as you have as a legal practitioner in the past 20 years (and some background in Law) so also stand by my comments regarding the political process of legislation and source of police powers in all of this (check out Section 24 PACE 1984 and Section 9 (7) of the Regulations)

Anyway good luck today everyone if you are recording for the Great Back Yard Watch - resist ye all temptation B

Of course Ignorantia juris non excusat if my Latin serves me well but perhaps in this case it might be !:-O

I'm just going outside for a bit.

dantheman said:

I'm just going outside for a bit.

Click to expand...

Take a book and enjoy - btw This not the first or even the second time you have made a comment to the effect that my posts are not welcome on a thread either due to their length or content - instead of unhelpful sarcastic jabs at my posts why don’t you just block them? (Or just go and watch tv or something B )

from another thread

dantheman said:

The
Rest
Of
Us
Have
To

Read all this too you know

Click to expand...

There are other examples but apologies if your comment on this occasion had absolutely nothing to do my preceding comment.

The main alert platforms in Netherlands don't mention rarities since a few weeks to prevent birders' gatherings and unnecessary travel. But I'm sure on app and facebook groups rarities are shared. I don't belong to any of those, working fulltime, can't train travel, so I'm just staying put having a boring spring while I wanted to make a hell of a year list this time around. Well, better next year.

Lawts said:

Well it's like all the guys you see with the cycling gear on; you're not telling me they get kitted out in all that just to be out an hour. I live on a route to the Yorkshire Dales and they come past early doors; out for a day's cycling I'm sure.

Click to expand...

In France, apparently, you are only allowed out on a bike if its your only mode of transport - ie you have no car.

You are allowed to exercise once a day for one hour - but you must stay within a 1km radius of your home.

Each time you go out you must fill in a piece of paper with the reason you are outside, timed dated signed.

With regards to the specific question I love seeing the news of birds that have been seen regardless of how juicy the sightings are - the juicier the better. People should be intelligent enough to know the rules and the consequences if they don't follow them. Twitching would never be considered essential travel.

That said I detoured to see the Ring Necked Duck in Portugal. On my second visit which was after the official lock down I even ticked Iberian Chiffchaff - a real one. Now in our defence we were south of the river anyway and went to a secluded area for a walk - away from the crowds. The route home, without detour, took us passed the roadside site. I could have few complaints if I had been stopped and fined... There are a number of defences - we felt less at risk by being in a secluded area being the main one. Given the gravity as the virus spreads it becomes more and more selfish and inexcusable...