Yesterday witnessed a very English relaxation of the Coronavirus lockdown. I say that not because the relaxation only occurred in England (although it did only occur in England) but because of the nature of the changes themselves. Picnics, tennis, golf, garden centres, country outings in the family car and house buying are all back on. In other words, the predominant preoccupations of middle England in Summer.
The changes were made in part by amendment to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020/350. A note about the unsatisfactory process by which the changes were brought about. The policy was announced by the Prime Minister on television on Sunday night. This was in contravention of the constitutional principle, embodied in the Ministerial Code 9.1 (page 23), that important policy announcements will be made first to Parliament. Draft amendment regulations were then not published until Tuesday afternoon and they came into effect the following day, without any Parliamentary approval. This was possible because the Government used the “emergency procedure” under s.45R of the Public Health (Control of Disease) Act 1984, on the basis that the Health Secretary was prepared to state his belief that, “by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House of Parliament”. It is however impossible to understand what that urgency was. After all, the amendment regulations gave effect to a relaxation not a tightening of the lockdown: there is no urgent public health reason for such a step. There is no evident reason why proper procedure could not be complied with and Parliament had to be bypassed. Whilst no doubt many people have been itching to get to a garden centre for weeks, resorting to emergency procedures that delay (and in effect largely remove) Parliamentary scrutiny damages public trust in emergency powers precisely at a time when public trust in such powers is most needed. The episode aggravates and underscores the problem which I and others have previously identified, that the regulations require a bespoke statutory basis and that resorting to the Public Health Act as the legal basis for such regulations is an unsatisfactory and constitutionally suspect expedient.
Amendments in England
Turning to the substance of the changes themselves, upon close examination we find that they represent a confusing amalgam of amendments to the law and tweaks to public health advice. The actual relaxation of the regulations is not as significant as might be thought.
Some changes to the law are nonetheless very clear, albeit relatively minor: Outdoor sports courts, previously closed by compulsion of law, are now permitted to open (i.e. tennis courts, basketball courts and five-aside football pitches). Garden centres and waste and recycling centres can open. (Outdoor swimming pools, children’s playgrounds and all indoor facilities will however remain closed.)
Presumably in an effort to breath some life into the housing market, people are now permitted to leave home to view houses for purchase or rental and to prepare properties to live in.
There is also a significant change for shops selling or hiring goods or operating library services that are able to operate online, by telephone or by post. Hitherto such businesses were restricted to deliveries, since leaving home to collect things from such businesses was not expressly permitted (although this might have been justified within the general concept of “reasonable excuse”). An express exception allowing people to leave their home to collect items sourced from such businesses has now been included in the regulations (also in the Welsh regulations).
The most significant change however is the introduction of a new justification for leaving home: recreation. The regulations now state that it is a reasonable excuse for a person to leave home,
“to visit a public open space for the purposes of open-air recreation to promote their physical or mental health or emotional wellbeing—
(ii) with one or more members of their household, or
- with one member of another household;”
Previously, a person could only leave their home to go to public open spaces for exercise. This resulted in “move along” directions from police and park attendants. Whilst guidance eventually clarified that stopping a walk to eat was not a contravention, picnicking, barbequing or sunbathing in parks was regarded as a step too far. This has now changed.
People in England can now leave their home for “recreation” in public spaces. The limitation that this must be for physical or mental health or emotional wellbeing may appear to be an attempt to impose some restrictions on the circumstances in which people can go outside. But these are unfortunate qualifications. In the first place they are so vague and subjective as to be all but unenforceable. But moreover, neither Boris Johnson in his statement to the nation nor the UK Coronavirus Guidance suggest that such qualifications impose limits on the ability to enjoy recreation. The Prime Minister stated that “we want to encourage people to take more and even unlimited amounts of outside exercise, you can sit in the sun in your local park …”. And the UK Government Coronavirus guidance now states:
“There are a limited number of things you can now do that you could not do before:
- spend time outdoors – for example sitting and enjoying the fresh air, picnicking, or sunbathing.”
There is no mention of a requirement of some benefit to physical or mental health or emotional wellbeing here. That is taken to be a self-evident incident of being in a public open space. After all, anyone who is in a public space could with justification claim to be “enjoying the fresh air”. Unless people study the underlying law they will not be aware of any such conditions and it would be most unfortunate if they become the focus of police enforcement.
This amendment has in any event significantly widened the justification for being outside your home. It runs the obvious risk of filling parks in fine weather and it places considerable weight on the 2 metre social distancing guidance (as to which more below).
The next significant change made by the amendment regulations is that it is now stated to be a reasonable excuse to leave home to exercise or enjoy the fresh air in the company of one other person who is not in your household. There cannot, however, be more than two people exercising or enjoying recreation together unless they are all part of the same household. That is not within the exception and would amount to an unlawful gathering. So, a person can go to a park to meet a parent but they cannot take the grandkids with them. They cannot visit their parent in their house and they cannot meet two parents together. The same principles apply to meeting friends or tennis coaches.
The extent to which this is a change to the substance of the law is however open to question. It is true that the regulations previously stated that you could leave your house to exercise only with members of your household or alone, and they did not mention doing so with another person. But the regulations also allowed two people from different households to meet. The UK Coronavirus Guidance also previously stated that, “you must not gather in groups of more than two people in public spaces like parks”. Since you could only be in a park for exercise, the rules and guidance seemed to imply that you could meet in pairs of two people in parks for exercise, or at least whilst exercising. In reality, people have probably been exercising alongside a friend already – jogging, walking or cycling – on the basis that it does not constitute an unlawful gathering. It was a grey area and the amended regulations have now made clear that such practices are lawful in England.
By contrast to these changes in the legal rules, other much touted relaxations are not relaxations of the law at all. The ability to take exercise as many times per day as you like – referenced by the Prime Minister in his televised address – is not a change to the regulations. It has always been the law in England that you can leave your home to exercise as many times as you like. Only Wales has prohibited leaving home to take exercise more than once per day. The once a day rule in England was advisory and not binding.
Similarly, the supposed relaxation allowing people to drive to take exercise– also mentioned by the Prime Minister –has also always been the law. The regulations do not prevent driving to take exercise in England. The College of Policing Covid-19 Guidance on reasonable excuse was explicit that “[i]t is lawful to drive for exercise” . This was said to include driving to the countryside for a walk.
The Prime Minster also stated that people were now being encouraged to go to work where they cannot work at home. But again, it has always been the law that you can go to work when it is not reasonably practicable to work at home. The change here appears to be that people are now encouraged to go to work, when previously they were … not encouraged.
That brings us to golf. The interesting thing about golf is that it was never prohibited in the first place. You do not play golf on a sports court so golf courses were not required to be closed. The Guidance is now clear that golf is okay, as long as it is with members of your household or in pairs. But since golf has never been prohibited this is also not a change, certainly it is not a change of the law.
We should also consider the 2 metre guidance. This was referred to by the Prime Minister in his address. He suggested that you can only enjoy your new freedoms outside if you observe the 2 metre “rule”. However, the 2 metre guidance is not law and does not feature in the regulations. Buried away in the Government’s new Covid-19 recovery strategy (in Annex A) one finds the following description of this guidance: “Public Health England recommends trying to keep 2m away from people as a precaution. However, this is not a rule and the science is complex. The key thing is not to be too close to people for more than a short period of time, as much as you can.” The 2 metre guidance is extremely important public health advice but it is not a rule of law breach of which results in criminal sanctions (note that in Wales and Scotland there are laws requiring businesses to take reasonable measures to ensure 2 metre distancing).
There are also respects in which the lockdown has become more rather than less restrictive. The levels of fines for breaches of the regulations have been increased. This is a matter of real concern given the complexity and ambiguity in a number of the rules, which mean that people might have a defence to an asserted contravention that they do not appreciate. It is particularly worrisome when enforcement is principally through inviting people to accept a fixed penalty notice. The UK Government Guidance has also been changed to state that people should not take public transport unless this is unavoidable and to be more emphatic that people should not share private cars. Previously, the guidance on both issues was more permissive.
Finally, as explained in a previous post, there are a number of respects in which the regulations should have been amended so as to properly qualify powers and ensure that they are legally robust and fit for extended use. Regrettably such amendments have not been made to the English regulations.
Wales, Scotland and Northern Ireland
There have been no changes to the regulations in place in Northern Ireland and Scotland, which remain closely aligned with the previous English regulations. The key change from exercise to recreation has not been replicated in any other part of the United Kingdom.
The Welsh regulations have however been amended. The amendments remove the restriction on exercising more than once per day, bringing them in this respect into line with the rest of the United Kingdom. But at the same time the Welsh amendment regulations have introduced a requirement that exercise be “local to the place where the person is living”, which is a movement in the opposite direction.
The Welsh guidance does make clear that picnics are permitted as long as you walk for longer than you sit to eat. It also recognises that there is no prohibition on golf courses being open, but does not suggest that they should therefore reopen (on the contrary, the guidance states that the English position will be monitored by Wales Golf and there will be a “partial resumption in Wales when the conditions are right.”). Libraries can however reopen in Wales.
Overall, the picture is one of divergence between England and other parts of the United Kingdom, with England taking the first steps to a more permissive approach.
The first stage in the UK’s relaxation of the Coronavirus lockdown restrictions is a very English affair. And one cannot help but feel that it will benefit mainly households with private gardens and cars, who play golf or tennis.
Many of the changes are really changes of UK Government advice, even changes of emphasis in Government messaging, rather than reflecting any change in the law, such as “take unlimited exercise”, “enjoy the fresh air”, “drive to the countryside”, “go to work if you cannot work at home” and of course the fact that the UK Government, but not the devolved governments, has dropped the “stay at home” message applicable within England. The most significant legal change is that people are now permitted to leave home for recreation in open spaces. Whether that change turns out to be too hot, too cold or just right from a public health perspective may depend on another famous English characteristic: the unpredictable English weather.
Tom Hickman QC, UCL and Blackstone Chambers
(Suggested citation: T. Hickman, ‘A very English lockdown relaxation’, U.K. Const. L. Blog (14th May 2020) (available at https://ukconstitutionallaw.org/))