Mark Drakeford and his crazy laws are Wales’ most non-essential items

Matthew Paul

Andrew RT Davies, the plain-spoken, breakfast-means-breakfast former Welsh Conservative leader, wasn’t always at perfect ease in the director’s chair. RT’s barnstorming, “I’ll huff and I’ll puff and I’ll BLOW your house down, I will” style hit the spot at party conferences and in big, well lubricated after-dinner speeches. It was rotten on the telly and Davies never cut through with the public in the way he enthused his fans in the party.

It might just be that RT now, as Shadow Health Minister, isn’t facing an urbane, slippery and sly opponent like Carwyn Jones, but the hopelessly lightweight Vaughan Gething: a man so useless they need two people to do his job. It might be that Davies is better as a team player than a leader. Either way, over the last few weeks he has built up some momentum in opposing Welsh Labour’s repressive, arbitrary and unnecessary public health laws.

When Mark Drakeford brought in –without the slightest scrutiny from the Senedd– measures restricting the sale of ‘non-essential’ items so amazingly bone-headed that even a jaded Welsh public was confounded with astonishment, RT got stuck in:

“To the folks @asda, @Tesco, @sainsburys, @AldiUK, @LidlGB & co ahead of your meeting this afternoon with the Welsh Labour Government. In the absence of any common sense emerging at the top of government, please do take a stand for your customers. Wales is behind you.”

Mark Drakeford’s rattled response to RT’s tweet was a letter –written in his official capacity as First Minister– to the Shadow Health Minister, accusing Davies of encouraging supermarkets to break the law, and purporting to order the Welsh Conservatives to do what they are told in the future.

On any fair reading of his tweet, RT wasn’t suggesting anyone break the law. He wanted supermarket bosses to talk sense to Ministers, in the absence of any sense emerging from the Welsh Government.

But in any event, the tweet wasn’t capable of encouraging Asda etc to break the law, for the very simple reason that the ban on ‘non-essential’ items isn’t the law. Non-essential items aren’t mentioned anywhere in The Health Protection (Coronavirus Restrictions) (No. 3) (Wales) Regulations 2020, which bring the firebreak into force. Or in any of the dozens of other ill-thought out and unscrutinised statutory instruments that have spewed forth from the WG during the pandemic.

The ‘rules’ about non-essential items are found instead in guidance. Guidance, as its name suggests, isn’t law. It is correct to observe that Regulation 20 of the (No. 3) Regulations says shops “required to take reasonable measures under regulation 17(2) must have regard to guidance issued by the Welsh Ministers about those measures.”

Regulation 17 (2) imposes a responsibility on shops “of minimising the risk of exposure to coronavirus at regulated premises, or the spread of coronavirus by those who have been at regulated premises”. Among the measures listed in the Regulation (which deals mostly with social distancing) are “otherwise controlling the use of, or access to, any other part of the premises”.

The areas of a shop used to display a product have nothing at all to do with the type of product being sold, but the WG are trying to stretch the meaning of this provision beyond any logical tolerances, to impose restrictions on the things shops that are specifically permitted to remain open by the Regulations are allowed to sell.

Using guidance under Reg. 17 (2) for this purpose is probably unlawful, and almost certainly unnecessary. If the Welsh Government has any evidence to the effect that during the spring lockdown, measures to limit the spread of Covid-19 were undermined by people going on unnecessary outings to Tesco and gratuitously dawdling in the homewares section, they haven’t chosen to show it to the public. 

Regulation 20 in any event only says shops must ‘have regard’ to the guidance. They can perfectly properly consider the guidance, and tell customers (as did the Parc Tawe branch of B&M Bargains) to use their own judgement as to what is essential. What’s more, even if a shop were shown not to have had due regard to the guidance –perhaps because they thought the guidance was stupid and mad– it and its managers commit no offence under the firebreak regulations: Regulations 29 and 30 (which deal with enforcement) do not create any offence of failing to comply with Regulation 20. It isn’t clear what power –if any– the Welsh Ministers think they have to enforce these arbitrary restrictions.

Drakeford’s other stated justification for his crazy rule: creating a ‘level playing field’ with local shops which are obliged to close, is both probably unlawful –you don’t use health protection regulations to protect businesses from competition– and plain irrational. No First Minister with his head even half screwed on (and, looking at the gap between Drakeford’s jacket collar and his neck, you do sometimes wonder) would think that sending shoppers off to Amazon for their ‘non-essential’ stuff does anything to protect the businesses that have shut their doors.

The results, predictably enough, were just as irrational. In efforts to make Wales look like the most Philistine nation in the western hemisphere, books were banned from sale (this must be wrong: newsagents –which commonly sell books– are permitted to remain open, as are various libraries). Tesco banned women from buying sanitary products. Aisles were cordoned off and murder tape stretched across displays of greeting cards. A Labour MP on Any Questions strained every cog and gear of her intellect, before tentatively concluding that a kettle probably wasn’t essential because you can boil water in a saucepan.

Imposing arbitrary and irrational rules on people makes them angry, so it was no surprise to see a complete chump in Bangor called Gwilym Owen rampaging around his local Tesco, tearing off the Covid-covers and howling at the unfairness of it all: “Rip the f***ers off!” Mr Owen bellowed. “Kids’ f***ing clothes, it is a disgrace.” He has ended up in front of the Magistrates, and something of a local hero. Not all heroes wear capes, so another wag paraded around a Newport supermarket in just his underpants, on the basis that the shop deemed clothes unnecessary.

RT was absolutely right to call the Welsh Government out on this thoroughly bad law, and Drakeford should be ashamed of himself for trying to browbeat the Tories into supporting it (and for –presumably deliberately and if so in breach of the Ministerial Code– misrepresenting Davies’ position as encouraging supermarkets to break the law). Gwilym Owen’s ire was only directed at inanimate manifestations of the lousy rules, but it was just a matter of time before some fool like him ended up cleaning a supermarket worker’s clock, in a furious barney over a kettle or frying pan.

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