Laws which criminalise what would otherwise be normal daily life and which the police must enforce must be clear, unambiguous, fair and fairly applied, logical and proportionate to the public health imperative. The purpose of this blog post is to illustrate the difficulties with the amended legislation, the inconsistencies between the laws of the four nations of the UK, as well as the problems of enforcement by the police. Whatever the problems with the legislation, whatever the high profile breaches, people must socially distance and must wear masks when unable to do so. The coronavirus is not going away soon, or perhaps ever. It may be joined by other novel viruses and human life may have to change.
With greatly improving weather, and recent news of high profile breaches of the rules, the British public have decided for themselves to begin to emerge from lockdown and to start enjoy the weather. The four nations of the UK have responded to this by relaxing the lockdown regulations applicable to each of them, albeit in distinct ways, to different extents and at slightly different points in time.
Social distancing within premises (including workplaces)
All 4 governments have emphasised the need for two-metre social distancing, whether in workplaces, public spaces or private premises. However, while they could have imposed a legal requirement for social distancing within any or all premises (including vehicles, vessels and aircraft), criminalising breaches punished by fines, pursuant to Schedule 22 to the Coronavirus Act 2020, none has (yet) gone this far.
So far, only the only the Scottish Ministers have even activated Schedule 22 (by means of a declaration) so that a social distancing direction could be given pursuant to it. No direction has, yet, been given by that government.
Neither the Northern Ireland Executive nor HM Government (in respect of England) has imposed any legally enforceable social distancing requirement at all, despite repeated exhortations by ministers to the public.
The Scottish Ministers have, however, imposed a requirement on those responsible for carrying on a business or providing a service to take all reasonable measures to ensure 2-metre distancing on the premises (see Reg 4 of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020).
The Welsh Ministers have gone the furthest so far. First, they have imposed a similar requirement to the Scottish Ministers upon those businesses permitted to remain open (see Reg 6 of the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020). They have also gone further and imposed this restriction for workplaces, by Reg 6A(1) (in force since 25th April 2020):
“A person responsible for work being carried out at premises where a person is working must, when such work is being carried out during the emergency period, take all reasonable measures to ensure that a distance of 2 metres is maintained between any persons on the premises (except between two members of the same household, or a carer and the person assisted by the carer).”
The Welsh Ministers have also published guidance on this, to which employers etc. must have regard, pursuant to Reg 7A. Their approach may be the model for future nationwide action in the workplace.
Working from home in Wales
The Welsh Ministers have also codified a legal requirement (on workers) to work from home where practicable, by Reg 8A:
“Requirement to continue to work from home where practicable
(1) During the emergency period, in the circumstances referred to in paragraph (2) no person may leave the place where they are living, or remain away from that place, for the purposes of work or to provide voluntary or charitable services.
(2) The circumstances are that it is reasonably practicable for the person to work or to provide voluntary or charitable services from the place where they are living…”
A person in Wales for whom it is reasonably practicable to work from home, but who leaves home, may be directed or removed (by using any reasonable force necessary) (see Reg 10) and commits an offence for which they may be fined (see Reg 12).
In cases in which a worker could easily work from home if their employer permitted it, but their employer (unreasonably) insists on workers attending the workplace, the worker will be contractually bound (and permitted by the Regulations) to attend his workplace, so long as his employer ensures social distancing at work.
Changes to the English Lockdown Regulations
Freedom to leave one’s home (but stopovers require reasonable excuse)
Reg 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 has been re-written so that, with effect from 0001 hours on 1 June 2020, the prohibition radically changes from being leaving or being outside of the place where you are living without reasonable excuse, to a more relaxed prohibition so that you now may not “without reasonable excuse, stay overnight at any place other than the place where [you] are living”.
You can now leave home for any reason or for no reason and for however long you like. You can wander around at any time of day or night for as long as you like, so long as you do not stay anywhere (apart from home) overnight. Oddly, nothing stops you from staying at your holiday home/caravan if you sleep there during the daytime, so that you are not staying overnight.
But what is the rationale for allowing a person or household to go where they like during the day, including to a holiday home/caravan, but not letting them stay there overnight? How does a household (i.e. people who already live together) become more infectious, or at risk of being infected, if they stay overnight in their own premises. The only way to read this form of the English Lockdown Regulations without reaching an absurd conclusion is to find that such a person or household will be staying at their holiday home/caravan with reasonable excuse. The same will be unlikely to be true if they are self-isolating with symptoms suggestive of Covid-19.
The categories of reasonable excuse are again non-exhaustive and include funerals (but not weddings), house moves, work, complying with legal obligations, emergency assistance, the needs of elite athletes, their coaches and the parents of child elite athletes, as well avoiding injury or the risk of harm etc.
This sea change has required amendment of the enforcement provisions. Reg 8(3) now provides:
“Where a relevant person considers that a person is staying overnight at a place other than the place where they are living in contravention of regulation 6(1), the relevant person may—
(a) direct that person to return to the place where they are living…”
This clothes police with vampiric powers in that (a) they can only use them overnight (when the breach is occurring) and (b) like vampires, they have no powers of entry and so have to be invited in by the householder – and once (lawfully) there they can give a direction to return home but cannot remove the person to their home. Disobeying the direction is an offence. Where the householder simply ignores the knock at the door, the direction can be shouted through the letter box. Just how many people will claim not to have heard such a direction is not known.
Officers may not feel that the above power is a sensible use of their time – especially if the numbers of people staying over is small and the risk of virus transmission low. To do so may simply fuel discord between neighbours (given the way in which it is likely that the police will find out about breaches).
The new restrictions on gatherings
Until now, in England, the restriction on gatherings related only to public gatherings. This is, presumably, because private gatherings would be caught by the general prohibition on leaving or remaining outside of the place where one is living without reasonable excuse.
Now Reg 7 outlaws – without any reasonable excuse exemption – both public and private gatherings; where outdoors, of more than 6 people, and where indoors, of any number (i.e. 2 or more), unless one of the listed exceptions applies, e.g. all of the gathering are from one household, attendance at a funeral, elite athletes, coaches and parents, work, moving house, providing care or assistance to a vulnerable person, emergency assistance, early years childcare, to avoid injury or harm, parent/child access arrangements, the fulfilling of a legal obligation or education.
If you have a barbecue in your back garden with 5 guests, best make sure it does not move to the kitchen later in the evening, as the weather cools.
What is a gathering? Reg 7(3)(a) provides:
“For the purposes of this regulation … there is a gathering when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other.”
The only thing excluded from this wide definition would appear to be the queue for the bathroom during your barbecue where those ‘gathering’ have a common, but not a shared, purpose.
This provision zooms in on the other end of the conundrum that many couples who live apart have experienced during the ‘lockdown’. While previously, they could not leave (or, subsequently (from 13 May 2020), leave or be outside of) the place where they were living without reasonable excuse, now they can leave or be outside of their home for any reason or no reason (needing reasonable excuse if they stay away overnight), but they (strictly speaking) cannot ever be present in the same private indoor place in order to engage in ‘any form of social interaction or any other activity’ with each other.
To this extent, the Regulations now remove the potential reasonable excuse available to those couples living apart who, for example, spent time at each other’s homes as a sort of social bubble or quasi-household.
If this provision were to be interpreted literally, then couples living apart could not stay over with one another indoors, but they could share a tent in the garden. But the latter would surely create a greater danger of virus transmission (the prevention of which lies at the heart of these regulations) than the former. That a provision of the criminal law should contain such an absurdity is unfortunate – and, no doubt, we may soon see commentators criticising it as perhaps even cruel. It seems to be a legal distinction in search of a rationale.
But s.3(1) of the Human Rights Act 1998 provides that all legislation must be read and given effect in a way which is compatible with the (European) Convention for the Protection of Human Rights and Fundamental Freedoms 1950, so far as it is possible to do so. Article 8.1 of the Convention provides that everyone has the right to respect for their private life and home. That right may be interfered with to the extent that is proportionate and necessary in a democratic society (see Article 8.2) “for the protection of health”. It is highly arguable that it would not be proportionate to interfere with the privacy rights of a couple living apart who had rationally considered the risk of viral transmission and had taken steps to reduce it, including by minimising their social contact with others.
Perhaps the courts will hold that those couples who ‘act with integrity’, ‘use common sense’ and ‘reasonably’ (to use phrases recently repeated by several Cabinet Ministers and by the Prime Minister), having regard to the risk of virus transmission, are to be treated, taking into account Article 8, as a single household, so as not to infringe the absolute restriction (i.e. with no reasonable excuse exception) on any gatherings of 2 or more people within premises.
The power to remove a person in breach of Reg 6 to the place where they are living (Reg 8(3)(b)) has been removed, as has the adjectival power in Reg 8(4) to use reasonable force so to do.
Reg 8(9) provides:
“Where a relevant person considers that a number of people are gathered together in contravention of regulation 7, the relevant person may—
(a) direct the gathering to disperse;
(b) direct any person in the gathering to return to the place where they are living;
(c) remove any person in a gathering in a public place to the place where they are living.”
The power in Reg 8(9)(c) carries a power to use reasonable force (Reg 8(10)). So the police may remove members of an unlawfully large (more than 6 people) public gathering to their home (rather than anywhere else), even though they are perfectly entitled to be outside of that home, so long as they do not stay overnight elsewhere or join a large gathering. That means a person could be forcibly removed from an unlawful gathering at one end of a beach, to their home, but then immediately return to the opposite end of the beach perfectly lawfully but the police could not simply remove them to that opposite end of the beach, having instead to remove to their home.
Again, with unlawful private gatherings in a garden or house, the police will have no power to enter. They may take the view that a few extra people in a large garden will make little difference in the effort to reduce the spread of the virus and discretion may well be the better part of valour. How will they find out who has attended such a gathering, unless they lie in wait for them outside the house, if they are not allowed in?
How do public protests fit with the prohibition on gatherings? In many cities across the world, including in London, people have gathered to protest the asphyxiation of George Floyd by a uniformed (now former) Minnesota police officer in broad daylight. On 31 May 2020, there was a very large, packed, gathering in Trafalgar Square. Police – sensibly – took a ‘light touch’ approach. Protesters should ‘use common sense’, ‘act with integrity’, and behave ‘reasonably’, having regard to virus transmission and police should continue to take a ‘light touch’ approach, both in view of the great sensitivities and in view of the fact that it is very much less likely to transmit this virus from person to person in the outdoors, particularly in warm, sunny, weather.
The Welsh Lockdown Regulations
Stay at home becomes stay local – but what is ‘local’?
Reg 8 has been replaced (with effect from 4pm on 1 June 2020) with a new restriction – set out thus in Reg 8(1):
“Restrictions on movement and being indoors during the emergency period
During the emergency period, no person may, without reasonable excuse—
(a) leave the area local to the place where they are living or remain away from that area;
(b) be indoors with another person who is not—
(i) a member of their household,
(ii) their carer, or
(iii) a person they are providing care to.”
So now, instead of requiring reasonable excuse to be away from home, a person in Wales only requires reasonable excuse to be away from the area local to their home.
The exceptions are broadly similarly to the non-exhaustive list before – buying essentials, seeking medical assistance, providing care to a vulnerable person, weddings, funerals and work etc.
Remember that the previous incarnation of Reg 8 prohibited a person from leaving or remaining away from the place where they were living, without reasonable excuse. Now, in Wales, you are no longer restricted to your home, but to your ‘local area’.
It is unsatisfactory that “the area local to the place where [you] are living” is not defined anywhere in the Welsh Regulations, so that Welsh residents may know with precision when they might be committing an offence, although First Minister Mark Drakeford has referred to a 5-mile radius from one’s home. While his words are not law, it will be very hard to say that those staying within that radius will not be remaining in their local area. It would, however, have been easy to specify an area, either by radius from home or perhaps walking time.
But there is now – for the first time – a definition in the Regulations of something which it is not a reasonable excuse – see Reg 8(3):
“For the purposes of paragraph (1)(a), it is not a reasonable excuse for a person to leave the area local to the place where the person is living to do something, or remain away from the area to do something, if it would be reasonably practicable for them to do that thing within the area.”
This may give rise to difficulty: what if you want to go to the seaside, which is 30 miles from your home? You cannot swim in the sea (or at all, at present, of course, unless you have your own pool) within your local area. Is not the obverse of Reg 8(3) that you are likely to be able to show that your jaunt to the (nearest available stretch of) seaside does amount to a departure from your local area with reasonable excuse?
The locality requirement is modified for exercise in this way – see Reg 8(4):
“Paragraph (1)(a) does not apply to a person who is exercising, but only where the exercise starts and finishes at the place where the person is living.”
So cyclists and runners can go as far as they like (and can), so long as they start and finish their exercise at home.
Outdoor gatherings in Wales
Reg 8B continues the ban on outdoor gatherings, save for the new relaxation on outdoor gatherings with members of no more than 2 households (Reg 8B(a)). If you have a large household and live near the England/Wales border, then a barbecue with friends on the Welsh side of the border will be lawful but the same activity on the English side of the border will not, while on the English side of the border, an outdoor barbecue with a group of 6 friends will be lawful but will be unlawful on the Welsh side because it consists of more than 2 households.
The outdoor gathering ban has no ‘reasonable excuse’ exception and there is a prescribed list of exemptions, including funerals (but not weddings) work, house moves, care of the vulnerable, emergency assistance and legal obligations.
Unlike in premises and workplaces, there is no express social distancing requirement in relation to social gatherings although the Welsh Government have always advised a 2-metre gap. Scientists appear comfortable that the risk of outdoor virus transmission is very very much lower than that of indoor transmission and the restriction on gatherings (anywhere in the UK) is therefore of questionable practical value.
In enforcing these Regulations, the police are acting as enforcers of public health and not of public order. It will be better, safer, more sensible and in keeping with the public health imperative if the police limit any coercive or enforcement action (including the imposition of fixed penalty notices) to egregious or persistent cases in which large groups of people gather, especially in confined spaces, in circumstances where there is a higher risk of person to person virus transmission through proximity or the attendance of symptomatic people who ought to be self-isolating. The requirement to self-isolate when you or a household member has symptoms is not (yet) a legal requirement but it will surely inform whether movements are done with reasonable excuse and whether it is appropriate formally to enforce compliance with restrictions in any given case.
When ‘lockdown’ was imposed, there was a simple single message (“Stay home” etc.) and there were simple restrictions on contact with others which were broadly consistent between the nations of the United Kingdom. The rules were fairly easy to understand, if draconian, and so easier to understand, obey and, if necessary, to enforce.
Now we have four different messages and four different laws in the four different nations, with the prospect of imminent local or regional lockdowns to contain localised outbreaks. We have had high profile breaches of the lockdown. The young are far less worried by the coronavirus than the old or sick. As the summer wears on, it will become increasingly hard to persuade citizens to obey restrictions which are not consistent between different places, towns or nations, let alone enforce them. There is a group of scientists specifically tasked with advising the Government on people’s behaviour, known by the acronym SPI-B (or the Scientific Pandemic Influenza Group on Behaviours). The members of SPI-B will soon have to work overtime. The Coronavirus is not going anywhere.