The Rule of Law – policing the restrictions on movement

As I have made clear repeatedly in this blog, I am a strong believer in the Rule of Law. This, of course, means not only that citizens should obey the law, but also that our government and those charged with policing the law must also act entirely within the law, and must be careful not to exceed their legal authority. However, there has been some controversy recently as to the manner in which some police forces have purported to enforce the recently imposed restrictions on personal movement.

I do not for one moment question the need for such regulations, in order to ensure that social distancing is properly practised so as to limit as far as practcable the transmission of COVID-19. This is clearly crucial. However, certain police forces have not only been over-zealous in seeking to enforce the current movement restrictions, but they have in fact exceeded their legal powers in doing so, and have themselves acted outside the law. (If Derbyshire Police really did pour dye into a freshwater pool, they have almost certainly committed an environmental offence!). Lord Sumption, an eminent lawyer and former Justice of the Supreme Court, has been particularly outspoken on this, and has pointed out that we do not live in a ‘police state’ in this country, and the police must not act as though we do. Avon & Somerset Constabulary, in particular, are completely out of order in encouraging people to ‘inform’ on their neighbours – they are a police force, not the ‘Stasi’.

The function of the police is to enforce the law. They therefore need to be clear as to the actual legal provisions that they are seeking to enforce. In England, these legal provisions are enshrined in The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 [SI 2020 No.350]. They do not include or embrace government ‘advice’ (or purported ‘instructions’) or ministerial pronouncements that do not reflect the actual contents of the above-mentioned regulations.

Regulation 6 of these regulations provides that “During the emergency period, no person may leave the place where they are living without reasonable excuse.” However, (and this is important) there is a list of no fewer than thirteen examples of the needs which constitute a “reasonable excuse”. (Regulation 6(2) in fact simply states that this list “includes” the needs that are referred to, which would appear to suggest that this list is not necessarily definitive, and that other needs could in principle, and possibly in practice, also constitute “reasonable excuse”.) However, in this post I will confine myself to discussing the needs actually listed in Regulation 6(2). All the needs listed are of equal legal status; the order in which they appear in the list does not represent any sort of ranking.

The first item in the list is (a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2.

It is important to bear in mind that purchasing any item sold or service provided by a business listed in Part 3 of Schedule 2 is capable of coming within the definition of “supplies for the essential upkeep, maintenance and functioning of the household”. I set out in my last post the premises listed in Part 3 of that Schedule but, just to remind you, they comprise Food retailers, including food markets, supermarkets, convenience stores and corner shops, Off licences and licensed shops selling alcohol (including breweries), Pharmacies (including non-dispensing pharmacies) and chemists, Newsagents, Homeware, building supplies and hardware stores, Petrol stations, Car repair and MOT services, Bicycle shops, Taxi or vehicle hire businesses, Banks, building societies, credit unions, short term loan providers and cash points, Post offices, Funeral directors, Laundrettes and dry cleaners, Dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health, Veterinary surgeons and pet shops, Agricultural supplies shop, Storage and distribution facilities, including delivery drop off or collection points, where the facilities are in the premises of a business included in this Part of Schedule 2, Car parks, and Public toilets. Thus a visit to any of these premises does, by definition, come within the needs that constitute “reasonable excuse” for leaving home.

I would endorse the suggestion, made by ministers, that people should avoid going out more frequently or for any longer than is absolutely necessary, and that in any event social distancing should be maintained at all times. But these suggestions are only advice; this advice does not constitute a legal requirement, and it is important that the police and anyone else concerned with the enforcement of the regulations should understand this, and not confuse such advice with the less stringent legal requirements enshrined in the regulations. If it becomes clear at any time that more stringent restrictions may be required in order to contain the continued spread of the coronavirus, then further regulations can and should be made. In the meantime, however, the current Regulations constitute the entire extent of the restrictions that can lawfully be enforced.

It is important to appreciate that the reasonable excuse demanded by Regulation 6(1) is not confined to obtaining “basic necessities”. Furthermore, it is clear that “supplies for the essential upkeep, maintenance and functioning of the household” can include obtaining money, and goods or services from any business listed in Part 3 of Schedule 2. A moment’s thought confirms that it would be a legal nonsense to attempt to distinguish between ‘lawful’ and ‘unlawful’ purchases from such businesses, particularly bearing in mind that it remains lawful for such businesses to remain open for the sale of all the items that they usually offer for sale.

The other point to bear in mind, that it is lawful to go out to buy goods not only for your own family, but also for the household of a vulnerable person (defined in Regulation 1(3)(c) as any person aged 70 or older; any person under 70 who has an underlying health condition, including (but not limited to) the nine underlying medical conditions listed in Schedule 1; and any person who is pregnant). This must necessarily include delivering those goods to the household of the vulnerable person. This need not be a near neighbour. I have had to make deliveries to a family who live a couple of miles away, at least two of whose members are in the vulnerable category, but who have no means of obtaining the supplies that they need in any other way. (They tried, and failed, to order food online.)

The next item in the list is (b) to take exercise either alone or with other members of their household. The English regulations do not specify that this exercise can only be taken once a day, nor do they specify any limit on the time during which this exercise may last or the distance from home to which such exercise may extend. Most important of all, there is nothing in these regulations that prevents a person driving to the point at which they intend to start a run or walk. Those police forces (such as Derbyshire and also Avon & Somerset) which have taken it upon themselves to ‘forbid’ or discourage such journeys are exceeding their powers. They (and we) should remember that the object of the exercise is to ensure that social distancing is maintained. Provided runners or walkers maintain a safe distance [not less than 2m] from other people when they are out, it is clearly immaterial whether they set out on foot or drive to the start of their walk or run.

As one person observed in a TV interview, his local park was crowded, so he drove to nearby woodland to go for a walk ‘far from the madding crowd’, only to find that Mr Plod had left a threatening leaflet on his car. And police really don’t need to get unduly worried if they see a number of cars parked in a car park, as their occupants are unlikely to return to their cars all at the same time. A less flat-footed approach on the part of the police is clearly required. To quote a government minister in a recent interview, people will remember for a long time the manner in which the police conduct themselves during the present crisis, and it is important that they should not undermine public confidence in the fair and proper enforcement of the law, which they risk doing if they exceed their powers by taking an over-zealous approach to the problem that this legislation is designed to address.

[Regulation 7 provides a more effective means of ensuring social distancing, and I suggest that this would be a more appropriate focus for the police than Regulation 6. Regulation 7 prohibits gatherings of more than two people, other than family members in the same household. Here too, however, the regulation provides for exceptions, for which due allowance must be made.]

Reverting to Regulation 6(2), the next item on the list is “(c) to seek medical assistance”, including to access dental services, opticians, audiology services, chiropody, chiropractors, osteopaths and other medical or health services, including services relating to mental health, and also veterinary surgeons and pet shops (which is self-explanatory, and calls for no comment). Similarly, one may leave home, in accordance with paragraph (d), ”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”; or under paragraph (e) “to donate blood.

Travel to work is covered by paragraph (f) (“to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living”). Clearly, working from home is to be encouraged wherever possible.

Paragraph (g) allows you to attend the funeral of a member of your household, of a close family member, or (if no-one in those two categories is attending) of a close friend.

Under paragraph (h) you may leave home to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings, and under paragraph (i) you may leave home to access critical public services, including childcare or educational facilities (where these are still available to a child in relation to whom you are their parent, or if you have parental responsibility for, or care of, that child). Under this paragraph, you may also leave home to access social services, services provided by the Department of Work and Pensions, and services provided to victims (such as victims of crime).

In relation to children who do not live in the same household as their parents, or one of their parents, paragraph (j) allows the continuance of existing arrangements for access to, and contact between, parents and children (and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child).

Paragraph (k) allows a minister of religion or worship leader, to leave home to go to their place of worship; paragraph (l) allows you to move house “where reasonably necessary” [?] and finally you may lawfully leave your home, to avoid injury or illness or to escape a risk of harm. (So you are not breaking the law if you rush out of the house because it is collapsing or because it is on fire. More seriously, victims of domestic abuse may lawfully seek refuge elsewhere.) With regard to moving house, the government has indicated that this should be put on hold wherever possible, but it nevertheless remains lawful to do so.

This brings me back to the basic point. The essential requirement is that we should all rigorously observe social distancing at all times. That is what these regulations were designed to ensure. My impression is that people are generally complying, and are following ministerial advice, even where it goes further than the regulations. But enforcement must be confined solely to breaches of the regulations themselves and, even then, persuasion and a generally light touch on the part of the police is likely to be more effective than a more heavy-handed approach (let alone the flat-footed actions of certain police forces, which Lord Sumption has roundly condemned).

One final legal note: There are various levels of enforcement. Regulation 8 empowers an authorised person (such as a police officer or a PCSO) who considers that a person is outside the place where they are living without reasonable excuse to direct that person to return to the place where they are living (or to remove that person to the place where they are living). But the belief needs to be a reasonable one, and due regard must be paid to the circumstances discussed above that constitute “reasonable excuse”. So a police officer or PCSO would need to tread very warily in exercising this power, and would need to be well-versed in the detailed provisions of Regulation 6 if they are to avoid possibly adverse legal consequences for themselves or their police force if they get it wrong.

[Officers are likely to find themselves on firmer ground in exercising their powers under Regulation 8(9) where they consider that three or more people are gathered together in contravention of regulation 7. In this case, they may direct the gathering to disperse, or direct any person in the gathering to return to the place where they are living; or they may remove any person in the gathering to the place where they are living.]

Under Regulation 8(11), an officer exercising these powers may also give the person concerned any reasonable instructions they consider to be necessary. However, the lawfulness of such an instruction will inevitably depend on the factors mentioned above. Officers may need some fairly careful training to make sure they get this right. A gung-ho approach would be wholly inappropriate.

Regulation 10 empowers an officer to issue a fixed penalty notice to any person over the age of 18 whom they reasonably believe to have committed an offence under these Regulations. The belief needs to be a reasonable one, and it relates solely to an offence under these regulations; it does not extend to a failure or refusal to observe other ministerial advice that is not covered by the regulations. Similarly, Regulation 9 makes it an offence, without reasonable excuse to contravene a requirement in regulation 4, 5, 7 or 8, or to contravene a requirement in regulation 6. Here again, this refers to the Regulations themselves, and not to any other requirement or purported instruction.

As always, a proportionate approach needs to be taken in the enforcement of these regulations, never forgetting that the most effective form of policing in this country is ‘policing by consent’. It is an essential element in upholding the Rule of Law in its widest sense.

© MARTIN H GOODALL