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Breaking the lockdown rules

 

The recent media frenzy, or controversy depending on your view, on the alleged breach of the lockdown regulations by the PM’s adviser, Dominic Cummings, has highlighted much confusion and ill-informed discussion around the regulations and guidance on individual travel during the coronavirus emergency.

It is widely claimed that by travelling from London to Durham to his parents’ home, Cummings clearly broke the regulations. The relevant part of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (2020 No. 350), which came into force at 1.00 p.m. on 26th March 2020, is regulation 6(1) which states:

 

During the emergency period, no individual may leave the place where they are living without reasonable excuse.

Regulation 6(2) goes on to list 18 (after recent changes) circumstances which are treated as reasonable excuses. These are however statutory examples of reasonable excuses but the list is not exclusive. This is clear from the way the regulation is phrased. This is further confirmed by the Explanatory Memorandum to the Regulations which states:

6.9 This instrument also prohibits anyone from leaving the place where they are living without reasonable excuse. Examples of reasonable excuse are specified in the regulations, such as the need to provide care or assistance, to travel for the purposes of work and to access critical public services.

In fact one of the explicit reasonable excuses in regulation 6(2)(d) states:

to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person, or to provide emergency assistance

 

Assuming Mr Cummings was indeed telling the truth about his journey to Durham, the objective of making arrangements for the care of his 4 year old son, there is a perfectly reasonable case that the journey was a reasonable excuse.

Mr Cummings is perhaps on more shaky ground, however, with regard to the trial car journey to Barnard Castle to test his eyesight. Ultimately, only a court can make a definitive judgment.

The legally enforceable coronavirus regulations are frequently conflated with Government guidance which is just that, guidance not regulations. The Stay at home: guidance for households with possible coronavirus (COVID-19) infection

makes clear that:

it is very important that individuals with symptoms that may be due to coronavirus (COVID-19) and their household members stay at home. Staying at home will help control the spread of the virus to friends, the wider community, and particularly the most vulnerable

There is however the following advice in the guidance:

If you are living with children, keep following this advice to the best of your ability, however, we are aware that not all these measures will be possible

People are quick to pronounce judgment on what is the right course to follow in compliance with the coronavirus regulations. It is not always as straightforward as some suggest.

One incident connected with the Cummings story is much more clearly a breach of the regulations:

 

7.  During the emergency period, no person may participate in a gathering in a public place of more than two people except—

 

(a)where all the persons in the gathering are members of the same household,

(b)where the gathering is essential for work purposes,

(c)to attend a funeral,

(d)where reasonably necessary—

(i)to facilitate a house move,

(ii)to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006,

(iii)to provide emergency assistance, or

(iv)to participate in legal proceedings or fulfil a legal obligation

 

The crowd of reporters, protesters and other onlookers at Mr Cummings’ house were gathering in breach of this regulation. Some of them might say their presence was “essential for work purposes”. Others might be happy to say they were there to “attend a [political] funeral”. Irony aside, the gathering itself was clearly illegal. We haven’t heard much about that in the news media.

Legaleze 26 May 2020

 

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From the King’s Coronation to Coronavirus - am I still bound by my contract? A tale of frustration and force majeure