The Lockdown law is the law

Is night fishing allowed? I'm going to argue NO... | 26/6/2020

I'm writing this here so I can use it as a one-stop expression of my view that the Angling Trust has done the angling community a gross disservice in advising anglers that night fishing is now allowed.

Note that I'm certainly not trying to prevent my club's carp anglers - I'm one myself - from getting back onto the only decent carp fishery in Northumberland overnight (this point being what has given rise to my interest in this matter, following a club announcement that the local council "was happy" for night fishing to recommence on 24 June. Oh dear. It is not up to the whim of some council official, or of a non-statutory representative body like the Angling Trust).

It will however be damaging to the club and to members if they start getting kicked off the water (which is all too public) by the police on the basis that they're on the bank because of a gross misunderstanding of how the law works.

I haven't written this as bland, anodyne, non-committal "legal advice" - there's a lot of me in this - because as a founder member of the club I'm more exercised by the Trust's actions than I expected to be. 

On 13 May HM Govt announced (with my emphasis) that:

From today (13 May 2020) people in England can spend more time outdoors and enjoy a wider range of activities for any length of time, subject to social distancing rules.

The Angling Trust concluded from this that: 

night fishing is allowed.

This conclusion is apparently based on the Trust's frankly rather facile interpretation of “any length of time” to mean “at any time”, which is a self-evidently unsound inference, for the following reasons.

It is true that the Government statement in question reflected an actual change to the relevant legislation ( - and to certain aspects of the (legally insignificant) guidance associated with it.

The statutory change was that from 13 May, the initial set of “reasonable excuses” was expanded (by s.6(2)(ba)) so as to remove the “exercise only” limitation on outdoor activity, allowing individuals: 

to visit a public open space for the purposes of open-air recreation to promote their physical or mental health or emotional wellbeing.

This meant that anglers could go fishing again.

Note that there was never a binding limit on how long an individual might spend outside: this was part of the non-statutory advice provided by the Government: an arbitrary - and unenforceable - one hour. However, this guidance was also addressed by the statement under discussion, as articulated by the phrase “for any length of time”.

(The reality is that an individual could always have been out "for any length or time", a fact which makes the Angling Trust's opinion that something significant had changed for anglers as a result of the announcement. all the more spurious.)

What is key is that the only statutory change communicated by the statement was the change to the purposes for which an individual could lawfully be outside.

Critically, it did not also communicate (which it would certainly have done, if such had been the Government's policy intent) the revocation or amendment of the “no overnight stays” proscription, because this part of the regulation did not change. It applied prior to the statement, and continued to do so afterwards.

So as of this writing (26 June), it remains that case that it is against the law for an individual to be away from where he normally lives, except in certain - limited and explicitly defined - circumstances, of which night fishing for carp is not one

The Angling Trust’s inference that “for any length of time” is the equivalent of “at any time” ignores the innate principle that the conduct of any action or activity must give due regard to any statutory limits on that activity.

The Trust's position ignores this requirement.

That individuals can now undertake an activity for "any" length of time is entirely conditional on - and is delimited by - the need to comply with any restrictions stemming from other binding law - such as s6(1) of the regulation in question:

"No person may, without reasonable excuse, stay overnight at any place other than the place where they are living."

This restriction still stands, and is binding on anglers.

This really is basic common sense. Legal training is not necessary to understand that if a law places a limit on an activity, a contrived misinterpretation of some non-statutory guidance does not - cannot - make the legal obligation go away. The phrase "for any length of time" has clearly been used simply as a Plain English (unnuanced, one-size-fits-all) shorthand for the removal of the advisory one hour limit. 

In simple terms, in this context, "any length of time" must be read as "any length of time as allowed by law" - and the law does not currently allow night fishing, because fishing isn't one of the reasonable excuses defined in the legislation.

It really is that simple. 

Furthermore, the obligation to comply with a law does not end simply because somebody with no authority to rule on the matter - such as the Angling Trust - arbitrarily declares that it's OK to ignore the obligation.  

A police officer will likely not be impressed if your best defence is that "The Angling Trust said it was OK..." And by extension, "The council said..." and "The club committee said..." will also likely be given short shrift.

All are lay opinions which are worthless in the face of the applicable law. 

It is beyond any reasonable debate that The Angling Trust has misjudged the situation with its tortuously contrived misrepresentation of the current legal position, and its self-proclaimed “success” in persuading the Government to change the wording of the statement (which still does not support the Trust's conclusion, incidentally) does not bear at all on the legal situation as it stands today.

Remarkably (and frustratingly), the very guidance on which The Angling Trust based its conclusion says very clearly that:

"It remains the case that you cannot..:

  • visit and stay overnight at a holiday home or second home"

Guidance (and indeed the law itself) can never be expected to cover all eventualities, but - again, basic simple common sense - it is obvious that the Government's concern in this case isn't about being in a building, but about being away overnight from the place where you normally live.

(In fact, it's less of a stretch to argue that a bivvy is a holiday/second home, than it is to argue that "any length of time" means "whenever you like".)

The spirit and  intent of a law are usually self-evident, so even when a particular situation isn't explicitly caught by a piece of legislation (or when - as here - the list of "reasonable excuses" might be non-exhaustive), it's normally clear what the law intends to achieve in that situation.

In this case, the both the spirit and the letter of the law are unambiguous - there is no Cummings Effect here. The extent to which his actions might be open to a "flexible" interpretation of the law is debatable, but there is no realistic room for reinterpretation as far as this matter is concerned. It is a fact that we can only be away from home overnight for very limited reasons; it is a fact that fishing isn't one, and there is no reasonable argument to be made that it should be.   

"Reasonableness" is the test here.

And on that point, it is even harder to argue for the lawfulness of night fishing when news articles like the following show people being fined for illegal camping. This behaviour is unequivocally analogous with overnight carp fishing:

Lake District rangers find hundreds illegally camping and partying

If these people are, in the eyes of the law, not acting "reasonably", how can night fishing be reasonable? It sets a clear precedent, and completely undermines the Angling Trust's position.

To further emphasise what "reasonableness" looks like, this (which happens to come from a briefing issued by the National Police Chiefs Council and the College of Policing - the source is not relevant, I'm simply acknowledging it) conveniently captures the current "reasonable excuses":Police guidance


The reasons here share a characteristic - they are all things that an individual may have to do. 

Angling is clearly not "reasonable" by that test, and it is the test which the police apply. 

The underlying problem here is that the legislation in question was rushed through, with little or no Parliamentary or other legal scrutiny. From personal experience I know that this can lead to sloppy, self-contradictory law-making. But the fact still remains that the relevant law here is unambiguous: there is no convincing argument to be made that being away from home overnight in order to fish is reasonable

The Angling Trust's focus on the Government's guidance as the basis for its conclusions is legally flawed, confusing, and ultimately irrelevant. Guidance has never superseded statute as the definitive source of legality, and never will.  

As far back as April, it was being recognised by legal commentators that the tensions between enforceable law, unenforceable guidance, and the confusion this causes, needed urgent attention (some of the comments have a particular resonance in relation to the matter I'm discussing):

Update, 6 July.

For clarity, the law changed on 4 July, with section 6 on the restriction of movement being revoked.

Up to that date, it was not lawful to fish overnight, but has subsequently become lawful.

Categories: Fishing, Rants