Monday 27 April 2020

What does the law say you can do under lockdown?

After five weeks, there is growing evidence of the lockdown being ignored. The recent sunny weather has no doubt played a part. Combined with a certain degree of lockdown fatigue and the reasonable assumption than the number of infections has been dropping, the last days of the full lockdown are likely to see less compliance than the first.

There is still some confusion about what is permissible. We have become used to seeing photos of seemingly over-zealous police officers hassling people on park benches, sunbathing or walking in the countryside. Are they enforcing the law as written or are they overstepping it?

In England, the legal basis for restricting people’s movement under the lockdown does not come from the Coronavirus Act, which was passed on 25 March, but from the Health Protection (Coronavirus, Restrictions) (England) Regulations which were brought into force the following day under the Public Health (Control of Disease) Act (1984).

The principal stipulation is that ‘no person may leave the place where they are living without reasonable excuse.’* The only 'reasonable excuses' explicitly mentioned in the regulations are:

  • Obtaining ‘basic necessities’, i.e. ‘food and medical supplies’ and ‘supplies for the essential upkeep, maintenance and functioning of the household’ (ibid.: 4).
  • Taking exercise alone or with members of the household (ibid.).
  • Seeking medical assistance.
  • Providing care or assistance.
  • Donating blood.
  • Travelling to work when ‘it is not reasonably possible’ to work from home.
  • Attending funerals.
  • Fulfilling a legal obligation, e.g. attending court.
  • Accessing critical public services.
  • Moving house ‘where reasonably necessary’.
  • Continuing existing arrangements between parents to access children.
  • Avoiding injury, illness or risk of harm.

The regulations also state that ‘no person may participate in a gathering in a public place of more than two people’ unless they are from the same household, except when:

  • attending a funeral.
  • it is essential for work purposes.
  • it is necessary to ‘facilitate a house move’.
  • providing care or assistance to a vulnerable person.
  • providing emergency assistance.
  • taking part in legal proceedings.

Breaching any of these rules can incur a fine of £60 which doubles for a second offence and doubles again for any subsequent offences up to a limit of £960.

The number of permissible activities is therefore very limited and the police have considerable latitude. There have been several instances of police officers going beyond the law, but in most cases, they have been enforcing laws that are unambiguously draconian.

In response to public concern and confusion, the Crown Prosecution Service has issued guidelines on what constitutes a reasonable excuse to leave the house. They do not supersede the legislation, but they do suggest that you won’t be prosecuted for taking a breather on a park bench in the middle of a long walk or driving a short distance to take exercise. Interestingly, the CPS has interpreted the rule that allows people to move house to mean that ‘individuals can move between households’, e.g. stay at a friend’s house, so long as they stay for days rather than hours. It is difficult to believe that this is quite what the legislators had in mind. 

Nevertheless, the current regulations are the most severe restrictions on the movement of individuals in modern British history. By law, they must be reviewed every 21 days, with the first review carried out on 16 April 2020.

We should not forget that the sole justification given by Boris Johnson for the lockdown when he announced it on television on 23 March was to prevent NHS services being overwhelmed by COVID-19 patients. There was no suggestion that the lockdown should remain in place until the virus was stamped out entirely, nor until other countries had eradicated it, nor until a vaccine had become available. Those who are concerned about the loss of civil liberties should be wary of any attempt to move the goalposts.

Eamonn Butler has some further thoughts.

* The law was amended on 22 April to say 'no person may leave or be outside of the place where they are living without reasonable excuse'. Visiting a 'a burial ground or garden of remembrance, to pay respects to a member of the person’s household, a family member or friend' was added to the list of reasonable excuses, as was obtaining or depositing money from banks, building societies, ATMs, etc.

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