Government instructions to "stay at home" are simple enough, but there are shades of grey. Our Partner Jonathan Goolden gives an overview of the law in these extraordinary times
I think I'm done with the sofa
I think I'm done with the hall
I think I'm done with the kitchen table, baby
Let's go outside (let's go outside)
So sang George Michael in his 1998 hit penned in response to him being arrested for engaging in a “lewd act” by an undercover police officer in the public lavatory of the Will Rogers Memorial Parkin Beverly Hills, California. The song video features scenes of LAPD helicopters spying on couples trying to “go outside” and makes interesting watching now that Derbyshire Constabulary were criticised for using drones to urge visitors to the Peak District to return to their homes in accordance with the Government’s current Covid-19 restrictions.
There have also been stories of police control rooms being overwhelmed with questions from the public about what they can and cannot do, even cases of neighbours calling for the arrest of those they think should not be travelling.
The Government’s message has appeared simple – “stay at home, protect the NHS, save lives” but in practice, ministers have given a range of interpretations on what that means, especially on who may travel to work outside their home. Confusion over construction activity is a case in point.
So what is the definitive position? Well, while as responsible citizens, we all want to follow Government guidance, the UK is subject to the rule of law and there must a legal basis for a system for restricting movement, especially if it is to be policed by fines.
In England and Wales, the Secretary of State for Health and Social Care can make regulations to control the movement of people for the prevention and control of disease under sections 45C, 45F and 45P of the Public Health (Control of Disease) Act 1984. Health Minister Matt Hancock issued the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 at 1pm on 26 March and these were laid before Parliament just before MPs went into isolation.
The regulations cover which premises must shut and which can stay open during “the emergency period” – which started on 26 March and will last until the Secretary of State ends it. Broadly speaking, it’s intended that these provisions will be enforced by local authorities through fines provided for in the regulations and existing licensing powers.
Regulation 6 deals with restrictions on movement. No person may leave the place where they are living without reasonable excuse. The place where someone is living incudes the premises, any garden, yard, passage, stair, garage, outhouse or “other appurtenance” of such premises. An appurtenance is actually a right or thing, attached to or associated with land, that benefits or burdens the use or enjoyment of the property by its owner and continues to do so when title passes to another. If your house has a private right of way through your neighbour’s garden, then you would not be in breach of the regulation if you used it, but you would want to observe social distancing when doing so.
So what is a reasonable excuse for leaving the place where you are living?
Regulation 6(2) sets that a reasonable excuse includes the need to do various listed activities which include:-
obtaining basic necessities, including food and medicines for those in the same household or vulnerable persons (meaning anyone 70 and over, who is pregnant or has one of a list of underlying health conditions listed in schedule 1 of the regulations – such as asthma, COPD, heart, liver or kidney disease, Parkinson’s, MS, a learning disability, diabetes, a weakened immune system or with a BMI of 40 and above);
to take exercise either alone or with other members of your household;
to seek medical assistance;
to provide care or assistance to a vulnerable person or to provide emergency assistance;
to donate blood;
to travel for the purposes of work or to provide voluntary or charitable services where it is not reasonably possible to work or provide those services from the place where you are living;
to attend a funeral of a member of your household, a close family member or a friend if no member of their household or close family member would be going;
to fulfil a legal obligation, including attending court, satisfying bail conditions or taking part in legal proceedings;
to access critical public services such as childcare, schools (but only if your child is being schooled), social services, DWP or victim services (such as Victim Support);
to continue access arrangements for a child of separated parents or those who have parental responsibility for the child;
for a minister of religion or worship leader to go to their place of worship;
to move house where reasonably necessary (even though the Government has just advised all house sales to stop for the present);
to avoid injury, illness or escape a risk of harm (for example for a partner to escape domestic abuse).
Of these, the most relevant to many people is whether they can go to work. It is clear from (f) above that you can only travel to a workplace if you cannot reasonably work from home. That might be because your work involves equipment that you cannot use at home or that you cannot adapt your home to enable you to work from it.
Regulation 7 restricts gatherings of more than 2 people unless it is of people from the same household, where it is essential for work purposes, to attend a funeral and where reasonably necessary for a house move, to help a vulnerable person, provide emergency assistance, take part in legal proceeding or fulfil a legal obligation.
Regulation 8 provides that a police officer or PCSO can direct you to return to the place where you are living or take you there by reasonable force if necessary if they consider you are in breach of regulation 6.
Regulation 9 makes it a criminal offence punishable by a fine in the Magistrates Court to breach these requirements. Significantly, a company can be found guilty and if so the directors and managers can be prosecuted as well.
However, in almost all cases, fixed penalty notices of £60, reduced to £30 if paid within 14 days will be used to enforce the regulations and these are provided for in regulation 10.
Overall, the restrictions are very extensive but perhaps easier to follow in practice than the general Government guidance and statements from ministers. Whilst we all want to do the right thing, guidance is just that – to be followed unless there are good reasons not to. The regulations are law and must be followed, but they do allow some sensible exceptions.
Jonathan Goolden
The above article is a summary of the law and not legal advice. Reference should be made the full text of the regulations referred in individual cases.
