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The ‘lockdown’ has been slightly relaxed in England but much less so in the other three nations. In England, this relaxation was announced by the Prime Minister in a nationally televised address at 7pm on a Sunday. By 7am the next day, there was considerable uncertainty as to what he meant and from when he meant things to change. The First Secretary of State, no less, had to be subsequently ‘corrected’ by his own Government after a Radio 4 interview. The more draconian the legal restrictions are, the more important it is to ensure that they are readily understood by the population, which must obey them, and by the police, who must enforce them. Otherwise, they lose much of their utility in the protection of public health. That is as true of restrictions that are relaxed as it is of the original restrictions.

On the evening of Sunday 10 May 2020, the Prime Minister made his second address to the nation concerning the Coronavirus pandemic. His first address had foreshadowed the lockdown, which was imposed in law a few days later, and his second now contained news of several relaxations – applicable only to England – to the lockdown.

He said:-

“And the first step is a change of emphasis that we hope that people will act on this week. We said that you should work from home if you can, and only go to work if you must.

We now need to stress that anyone who can't work from home, for instance those in construction or manufacturing, should be actively encouraged to go to work.

And from this Wednesday, we want to encourage people to take more and even unlimited amounts of outdoor exercise.

You can sit in the sun in your local park, you can drive to other destinations, you can even play sports but only with members of your own household.” [emphasis added]

During the ensuing Monday morning commute to work, when many people had already started to travel to their workplaces, e.g. in construction and manufacturing, presumably interpreting the Prime Minister’s use of the word “now” to mean “now”, HM Government clarified that this return to work instruction had also, in fact, been intended to be from Wednesday, rather than from “now”.

On Tuesday 12 May, the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020/500 were made and they came into force on Wednesday 13 May 2020, the day from which the relaxations took effect. They make six main changes to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the English Lockdown Regulations):-

1. exercise: now permitting people to exercise one to one with a member of another household (i.e. a total of 2 people) (Reg 6(2)(b)).

2. recreation: introducing a new example of a reasonable excuse of visiting “an open space for the purposes of open-air recreation to promote their physical or mental health or emotional wellbeing”, alone, with members of their own household or one to one with a member of another household (Reg 6(2)(ba)).

3. house hunting: introducing a new reasonable excuse example of visiting estate agents’ offices and viewing homes for rent or sale (Reg 6(2)(l)) – but imposing no restriction on the number of people who may visit or be visited.

4. garden centres: permitting the re-opening of garden centres and outdoor sports courts (new paragraphs 43 and 44 of Part 3 to Schedule 2 to the Regulations), with no restrictions on numbers of people or their distancing.

5. accommodation for key workers: specifying that providers of holiday accommodation (hotels/bed and breakfasts etc) may provide accommodation to critical workers whose need is connected to their work (Reg 5). The explanatory notes say that Reg 5 is amended “to clarify” the circumstances in which hotels may provide accommodation to key workers. Accommodation providers were already open to key workers. The legal basis for doing so is not clear from Government guidance but would seem to be lawful based on a request to do so by the Secretary of State for Health (Reg 5(4)(d)).

6. fixed penalty notice fines: increases first breach fines from £30 to £50 and maximum fines from £960 to £3,200 (Reg 10).

Of these, the exercise, recreation and house hunting activities are the most difficult to enforce in practice and have the potential to give rise to absurdities.

Enforcement difficulties

Exercise

Reg 6(2)(b) provides that it is a reasonable excuse for a person:

“(b)  to take exercise—

(i)  alone,

(ii)  with one or more members of their household, or

(iii)  with one member of another household;

[…].”

The difficulties of enforcement are clear. If exercising with a person outside your household, there can only be two of you.

If police officers see a group of three or more joggers in the park, it may be one household, which is lawful, or it may include members of more than one household, which is not. How are the police to know? It matters because, if you are exercising in a public place, your group will need to comply with the draconian limitation on public gatherings contained within Reg 7 which prohibits public gatherings of more than two people, unless they are from the same household, with no ‘reasonable excuse’ exception.

As Northern Ireland eases the lockdown, a numerical limit on social groups will be introduced there: see here. At stage 1, the same difficulties of enforcement arise because the limit only applies to different households. At stage 2, however, there is a simple 10-person limit. This will be much easier for the PSNI to enforce. England could do well to take heed.

The Prime Minister made clear that, if you meet a person from another household then you must maintain social distancing (i.e. two metres distance). But the social distancing requirement (presumably aimed at greatly reducing the risk of virus transmission) is nowhere to be found in the Regulations. It is tangentially covered by the Reg 7 restriction on gatherings – in the sense that the police are less likely to view a collection of people as amounting to a gathering if they are at least two metres apart and more likely to view them as a gathering if they are closer together. In practical terms, the police would do well to regard people who are keeping to the two-metre social distancing requirements as not amounting to an unlawful public gathering and as having reasonable excuse to be outside of their homes.

The foregoing interpretation would pass muster with what the Prime Minister’s deputy, the First Secretary of State, the Rt Hon Dominic Raab MP, told BBC Radio 4’s Today programme on Monday 11 May, namely, that you could go to a park and meet both of your parents there as long as you were socially distanced. This was later ‘corrected’ by the Government to one of your parents.

Where a senior Minister, and former solicitor, misunderstands Government regulations, some might say that those regulations are confusing.

Recreation

Similar, even greater, difficulties arise in ensuring that ‘recreation’ take place in accordance with the amended English Lockdown Regulations.

The new Reg 6(2)(ba) provides that it is a reasonable excuse for people:

“(ba)  to visit a public open space for the purposes of open-air recreation to promote their physical or mental health or emotional wellbeing—

(i)  alone,

(ii)  with one or more members of their household, or

(iii)  with one member of another household;”

Public open space: meaning

Reg 6(5) provides a partial definition of “public open space”. Before leaving his home to go sunbathing or picnicking, the ordinary citizen, wanting to know what is a public open space in which he or she may do so, will see that it is defined in this way:-

“(5)  For the purposes of paragraph (2)(ba), "public open space" includes—

(a)  land laid out as a public garden or used for the purpose of recreation by members of the public;

(b)  land which is "open country" as defined in section 59(2) of the National Parks and Access to the Countryside Act 1949, as read with section 16 of the Countryside Act 1968;

(c)  land which is "access land" for the purposes of Part 1 of the Countryside and Rights of Way Act 2000 (see section 1(1) of that Act).”

If he has in mind “open country”, the citizen will wish to cross refer to two different Acts of Parliament which are never far from the lips of an Englishman, the National Parks and Access to the Countryside Act 1949, and the Countryside Act 1968.

On a strict reading of the English Lockdown Regulations, as amended, it appears that people would not be able to visit for the purposes of recreation: -

(i)  Reservoirs owned or managed by “statutory undertakers” (not “open country” under Reg 6(5)(b), as read with section 16(6)(a) of the Countryside Act 1968); or

(ii)  Canals owned or managed by the Canal & River Trust which are commercial or cruising waterways (not “open country” under Reg 6(5)(b), as read with section 16(6)(c) of the Countryside Act 1968).

Those who are partial to kayaking or paddle boarding, may have to make do with lakes within parks.

However, by providing that public open space “includes” the types of land listed thereafter, the Regulations make clear that other areas might also constitute public open space.

What if I go to sit in a prime spot in the sun in a park (a specific example given by the Prime Minister) but am joined by 2 people of my acquaintance but not of my household? Is this not now an unlawful public gathering? Do I commit an offence if I simply remain in my place, while directing their attention to Regulation 7 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020?

What if I sit in a busy park on a beautiful day and get talking to my 2 immediate neighbours upon whose countenances I have never before laid eyes? Are we now participating in an unlawful gathering for the purposes of Reg 7? What if they pass me some food and I pass them some drink? What if we spend many hours chatting, eating and drinking? At what point do we begin to participate in an unlawful gathering? Do we ever begin to participate in a gathering at all for these purposes if we remain at a 2-metre distance from one another? How are the police to tell the difference between a group of socially distanced, but chatty strangers, and people participating in an unlawful gathering? Why does it matter, for coronavirus transmission purposes, if people gather but strictly maintain socially distancing?

On the topic of waterways owned by the Canal and River Trust, can people start rowing and paddle boarding again? These are activities that can be done complying with social distancing so it would seem.

Even if the location of the meeting is not problematic, there are other ambiguities in the way this reasonable excuse is drafted that may cause problems.

The visit must be for the purposes of “open-air recreation”

To rely on the reasonable excuse in Reg 6(2)(ba), people must visit the public open space “for the purposes of open-air recreation”. Why was it necessary to specify the purposes for which a person (not intending to commit crimes) may visit a public open space?

What if one of the authors of this blog went to a park with their laptop in order to complete some non-sensitive legal research for the purposes of a forthcoming trial? Their great love of the law may not quite clothe legal research with the character of “open-air recreation to promote their physical or mental health or emotional wellbeing”. Why should this not be perfectly lawful, given that it carries no greater risk of virus transmission than sitting on a park bench in order to sunbathe or eat lunch?

Put another way, so long as you are not visiting a public open space in order to commit crimes, is there any conceivable visit to a public open space which would be unlawful? Why is it not lawful simply to be outside of your home sitting in a park for any, or indeed, no, reason? The difficulty with specifying a purpose in the Regulations is that its enforcement by the police requires them to enquire into something which is seemingly wholly irrelevant to public health and to make a value judgement on why the person is in the open space.

Lack of consistency?

Many have expressed frustration that the current list of reasonable excuses gives rise to some apparent absurdities. Currently one person from one household, seemingly cannot visit another in their garden. Instead, if they want to see each other, they must travel to a park or a public garden, perhaps encountering people as they go, and while they are there. The explanation given by the Secretary of State for Health is that, if visits to domestic gardens were permitted, people would be likely to walk through the house to get to the garden: see here. This explanation loses its force where people can access household gardens via a side gate or where there is a garden in front of the house. Is an additional reason, that the state cannot police activity in gardens as effectively, police lacking a power of entry to enforce these regulations?

Adult (grand)children cannot visit their (grand)parents’ house but they can visit as many strangers’ houses as they like if they are looking to rent or buy it, thereby potentially transmitting the virus. Schoolteachers will soon be required to mix with classes of children but will still not be able to see both of their parents simultaneously. You can meet as many friends as you like inside a garden centre and gather together with them without fear of breaching Reg 7 (public gatherings), potentially transmitting the virus, but you cannot do the same thing in the open air in a park.

Your cleaner may visit you to clean your house (along with those of all of their other clients that day), potentially transmitting the virus, but they cannot visit their own relatives in their households. The differential socioeconomic impact of this has already been noted. Those who can afford a nanny and housecleaners may have many more in-person interactions than those who cannot.

The Prime Minister has made clear that you can drive as far as you like in order to visit a park for recreation or to take exercise. This suggests that there was never a basis for people being stopped from driving in order to take exercise. Indeed, the Prime Minister stressed that people who cannot work from home and who will, in increasing numbers, travel to their workplaces, should avoid public transport; walking, cycling and driving being preferable. This is because driving somewhere carries no risk of virus transmission.

Obviously, one cannot drive beyond the borders of England without infringing the laws of the other 3 nations. For example, in this jurisdiction – England and Wales, a Welsh resident may commit an offence in Wales as he drives to the border to undertake recreation in an English park but will commit no offence in England. An English resident will commit no offence in driving to exercise wherever in England she wishes, but the moment she crosses into Wales, she may be committing an offence. To that extent, there is, for the first time in history, a legal border (albeit invisible) between England and Wales.

People who need to commute to work are encouraged to do so by car (or walking or cycling) rather than by public transport, but no limitations have been imposed on car sharing by people from different households. Some will choose this as the lesser of two evils.

Lack of protection at work

In relation to work, the greatest risk of coronavirus transmission results from working inside premises, or on-board vehicles. This is why social distancing is all the more important in those circumstances. Why did HM Government not make its guidance on social distancing at work and on public transport legally binding? Schedule 22 of the Coronavirus Act 2020, given the force of law by s.52, permits the Secretary of State to make a declaration whose effect would be that he could give directions requiring social distancing inside “premises”, which include workplaces and vehicles. Those directions could impose limits on numbers of people entering premises/vehicles and their spacing inside them. Breach of those directions could result in fines, an offence being committed by a person who is the owner or occupier of the premises/vehicle or other person involved in managing entry or spacing, rather than by those merely entering. This would, however, be ideal for controlling employers’ use of their premises.

Regulations could have imposed a requirement to wear face coverings where social distancing indoors was impossible. There is modest evidence that this may somewhat reduce the risk of an infected person infecting his neighbours.

Employees’ rights at work have not been ‘beefed up’ by introducing specific protections into the Employment Rights Act 1996. Employees and ‘limb (b)’ workers will only be protected to the modest extent that the whistleblowing provisions in Part 4A, the health and safety protections in s.44 etc. and their limited flexible working rights in Part 8A assist them.

Conclusion

Police forces are in the difficult position of being required to enforce compliance with public health (as opposed to public order) measures – not something they have had to do with any regularity in recent times. How are they able to enforce restrictions fairly and consistently when the law itself is ambiguous and inconsistent? The consequences of ambiguity have already been demonstrated. Several convictions are reported to have been quashed on the basis that the Coronavirus legislation has been misapplied. It is understood that the CPS are going to review all charges under the Coronavirus laws.

The law should be clear, practical, unambiguous, fair, and logical and any restrictions on liberty proportionate to the purposes of the public health aim being pursued. It must also be seen to be fairly and sensibly applied and enforced.

As before, the police should remember at all times that they are the public health (not public order) police for the purposes of the Amended English Lockdown Regulations. If breaches of the strict terms of the Regulations could not conceivably result in a significant risk of coronavirus transmission, then no action is necessary to safeguard public health. The Regulations should be seen as a means of restraining clear risks to public health.