The following is part one a two-part guest post by Clare Feikert-Ahalt, a senior foreign law specialist at the Law Library of Congress covering the United Kingdom and several other jurisdictions. Clare has written a number of posts for In Custodia Legis, including Weird Laws, or Urban Legends?; FALQs: Brexit Referendum; and The UK’s Legal Response to the London Bombings of 7/7.
The restriction on the movement of individuals in England during the pandemic, frequently referred to as the “lockdown”, was announced during an address to the nation by Prime Minister Boris Johnson on March 23, 2020. Johnson announced the closure of many businesses classed as non-essential, including entertainment businesses, vacation homes, museums, and retail shops selling non-essential items. Cemeteries and crematoriums, with the exceptions of providing funerals or burials, and places of worship, with the exception of providing funerals, broadcasting services and providing “essential or urgent public support services” were also closed. Social gatherings of two or more people not of the same household, including for reasons such as weddings and baptisms, were prohibited, with limited exemptions. One of the most controversial provisions of the address was the announcement of significant restrictions on the movement of people across the United Kingdom.
The Prime Minister stated the police have the power to enforce the rules he announced in his address through both fines and by dispersing any public gatherings. These powers were provided for under emergency regulations, made three days after Johnson’s public address on March 26th for England, Wales, and Scotland, and on March 28th for Northern Ireland.
For the purposes of this blog post, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulations), which were made under preexisting powers contained in the Public Health (Control of Disease) Act 1984, will be considered. Regulations for Wales, Scotland, and Northern Ireland approximately mirror this regulation. The regulations for Scotland and Northern Ireland were made under powers provided for in the Coronavirus Act 2020, which was introduced as emergency legislation “to enable the Government to respond to an emergency situation and manage the effects of a pandemic.” The act covers a wide range of measures relating to the impact of COVID-19 in the UK that vary from sick pay, health and social care measures, childcare and education, elections, managing the deceased, food supply, the courts and tribunals, and local authorities, and provides the power for Scotland and Northern Ireland to introduce regulations in this area in the schedules to the act.
The Regulations state “[d]uring the emergency period, no person may leave the place where they are living without reasonable excuse.” The Regulations do not specifically define what constitutes a “reasonable excuse,” but do provide a non-exhaustive list of purposes for which a person may be considered to have a reasonable excuse to leave their homes, including to:
- shop for basic necessities, including food and medications for household members or vulnerable persons, who are defined in the Regulations as any person over the age of 70 years old, or who is under 70 years of age but has an underlying health condition, or any person who is pregnant;
- shop for “supplies essential for the essential upkeep, maintenance and functioning of the household or the household of a vulnerable person, or to obtain money”;
- engage in exercise, either alone or with family members;
- obtain medical assistance, provide medical assistance or care to a vulnerable person or donate blood;
- travel to and from their place of employment, or to provide voluntary or charitable work;
- attend the funeral of a close family member, member of the person’s household or if none of these members will attend, the funeral of a close friend;
- access critical public services, such as childcare or educational institutions, social services or services provided to victims;
- access children in accordance with child custody arrangements;
- move home, where necessary;
- attend places of worship for ministers of religion; or
- to avoid injury, illness or to escape a situation that poses a risk of harm.
While Johnson stated that trips to shop for essentials should be done as “infrequently as possible” and that exercise should be “one form” per day, the regulations do not assign a numerical value to these exemptions, nor do they specifically allocate a number of times per day that a person may leave their home. Instead, they simply require that people must have a “reasonable excuse” each time they leave their home.
The enforcement powers provided by the Regulations to the police area fairly broad and enable them to stop a person if they “consider” that a person is contravening the Regulations and provide the police with the authority to:
- Direct people who they consider are outside without a reasonable excuse to return home;
- Direct people who are gathering in prohibited numbers to disperse and/or return to their homes;
- Return people to their homes if they fail to comply with a direction, using reasonable force if necessary;
- Arrest people they suspect have committed an offense if this is necessary to maintain public health and order.
When using any of these powers, the police must consider if it is a “necessary and proportionate means of ensuring compliance with the requirement.”
Given the restrictive nature of the Regulations, provisions were included for regular review. The Regulations created an emergency period, which started when they entered into force and will end when the Secretary of State terminates them, or when the regulations expire in their entirety six months after the date they received Royal Assent. The Secretary of State is under a legal obligation to review whether the restrictions imposed by the regulations are needed a minimum of once every 21 days and must terminate the restrictions, either wholly or in part, when he considers they “are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England with the coronavirus.”
The first review of the regulations occurred on April 16, 2020, and the Secretary of State determined the restrictions needed to remain wholly in force for an additional 21 days after receiving advice that easing restrictions would
… risk a significant increase in the spread of the virus [t]hat would threaten a second peak of the virus, and substantially increase the number of deaths. It would undo the progress made to date, and as a result, would require an even longer period of the more restrictive social distancing measures. So early relaxation would do more damage to the economy over a longer period.
In this review, the government established a set of five criteria that must be satisfied, based on science and data, and has been met before it will consider easing any of the Regulations. These criteria are:
- Ensuring the National Health Service (NHS) can cope and provide treatment to all across the UK;
- Seeing a “sustained and consistent fall in the daily death rate” to show the UK has moved passed the peak of infections;
- Receiving reliable data from the Scientific Advisory Group for Emergencies (SAGE) that shows the rate of infection decreasing to manageable levels;
- Ensuring “operational challenges” that include the supply of tests and Personal Protective Equipment (PPE) can meet future demand;
- Being confident any adjustments would not risk a second peak of infections that would overwhelm the NHS.
With these criteria and the current statistics on the spread of COVID-19 across the UK, it seems the restrictions in the Regulations will be extended following the next review.
The second part of “Restrictions on Movement due to the Coronavirus Pandemic Across England” will be published tomorrow.