On Monday 23 March, the Prime Minister in his broadcast to the nation spoke of the need to "halt the growth of this virus" and pointed out that "if too many people become seriously unwell at one time, the NHS will be unable to handle it - meaning more people are likely to die, not just from Coronavirus but from other illnesses as well."
Mr Johnson then went on to "give the British people a very simple instruction" to stay at home. He amplified this "instruction" and then indicated that the Police were to be given powers of enforcement.
The law:
The powers arrived
at 1pm on 26 March - The Public Health (Coronavirus, Restrictions) (England) Regulations 2020. My previous post of 26 March is an overview of the Regulations. The Regulations are made under powers which exist for public health purposes. This needs to be borne in mind when interpreting the Regulations - see previous post.
Government Guidance to the public:
In addition to the Regulations, the government has continued to publish guidance. It is dated 29 March and is at Coronavirus outbreak FAQs: What you can and can't do. There are some significant differences between the Regulations and the guidance.
The Independent newspaper - Coronavirus: the official UK government advice
College of Policing Guidance - 26 March:
The College of Policing issued a summary (dated 26 March) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 – including what the changes mean for the public, an outline of the policing approach, enforcement and police personal safety. The College webpage contains a link "COVID-19 Police Brief in response to the coronavirus". The Police brief is dated 31 March.
The College of Policing put forward a 4 phase approach - Engage, Explain, Encourage, Enforce - with enforcement viewed as a last resort.
It is fundamental that any Police advice to individuals about the law is accurate. Key to the Regulations is the point that anyone leaving the place where they live must have a "reasonable excuse" to do so. The legislation sets out a non-exhaustive list of "reasonable excuses" even though there are difficulties of interpretation with some of them.
In practice:
Some reports say that Police have been stopping drivers to check their reason for being away from home - ITV Report 25 March. This was taking place even before the Regulations became law.
A person driving a mechanically propelled vehicle on a road must stop the vehicle on being required to do so by a constable in uniform or a traffic officer - Road Traffic Act 1988 s163.
There has been criticism over the sale of Easter Eggs . As the BBC reported 30 March, some shops were told by police and local councils that the chocolate eggs are considered non-essential goods. The Association of Convenience Stores (ACS) blamed “overzealous enforcement and a misreading of the rules."
A number of reports arose about the actual approach being taken by some Police Forces. Derbyshire Police were criticised in this BBC report of 27 March for using a drone to film people in pairs rambling in the Curbar Edge area and officers said that travelling to remote areas for exercise did not count as "essential travel" as permitted by the rules.
Shopping and exercising appear to have been the main points of contention.
Shopping and exercising:
Regulation 6
(1) - During the emergency period, no person may leave the place where they are living without reasonable excuse.
(2) - For the purposes of paragraph (1), a reasonable excuse includes the need -
(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;
(b) to take exercise either alone or with other members of their household; ....
(a) refers to "basic necessities" and then goes on to say that this includes food etc. There is NO list of what is classed as a non-essential food. There is surely a reasonable excuse if one goes out for shopping (meat, vegetables etc) and also buys an Easter egg. There was a reasonable excuse at the time the individual went out. The guidance refers to shopping for basic necessities, for example food and medicine, which must be as infrequent as possible. The bit in blue is not in the Regulations.
(b) Exercise - the Regulations do not specify anything about what exercise may entail. There is nothing in the Regulations about once a day. or the form of exercise (e.g. walking, jogging, cycling) or where the exercise may be taken. On the other hand, the government guidance goes further and states - "one form of exercise a day, for example a run, walk, or cycle - alone or with members of your household." There appears to be nothing in the law to prevent someone driving to a beauty spot for a walk even if it may be preferable for individuals to confine their activities close to home. The Police Brief (31 March) says this to Police Officers:
On 30 March, Lord Sumption (a retired Supreme Court Justice) had something to say about policing.
Lord Sumption:
Lord Sumption took part in the BBC World at One programme on 30 March. He criticised Derbyshire police for stopping people exercising in the Peak District. He considered that such Policing risks plunging Britain into a “police state"- The Guardian 30 March.
Lord Sumption warned that police had no legal power to enforce “ministers’ wishes” and that the public should not be “resigning their liberty” to over-zealous citizens in uniform.
“The behaviour of the Derbyshire police in trying to shame people in using their undoubted right to take exercise in the country and wrecking beauty spots in the fells so people don’t want to go there is frankly disgraceful,” he said.
The BBC broadcast is available for a limited period at BBC Radio 4 - World at One 30 March 2020.
Lord Sumption went further and criticised the government's handling of the pandemic. He referred to the "hysterical" approach to the spread of the virus by closing essential businesses and instructing people to stay at home, arguing that the move would wreck the economy and saddle future generations with a mountain of debt.
“Anyone who has studied history will recognise here the classic symptoms of collective hysteria,” he claimed. “Hysteria is infectious. We are working ourselves up into a lather in which we exaggerate the threat and stop asking ourselves whether the cure may be worse than the disease.”
During the programme, Lord Sumption did not address the Prime Minister's point about trying to avoid flooding the NHS with cases. (Some steps have been taken to improve NHS capacity - e.g. NHS Nightingale , obtaining more ventilators, improvements to testing etc - but these are not discussed further here).
Exaggeration?
It has to be seriously doubted whether the threat has been exaggerated given that, on 30 March, the death total in the UK had reached 1415 and 9000 people were being treated by the NHS - Sky News 30 March. Figures in other countries are also worth noting - see Statista - where it is reported that the most deaths have occurred in Italy at 10,781. On 29 March there were 2,683 deaths recorded in 34 different European countries and on 30 March, 2,537 deaths were recorded across 35 countries.
The government has, over the last two weeks, moved to a suppression strategy - (see this article at Medical News Today 20 March) - of which the Regulations are a part but there are obvious questions such as for how long it will be possible to maintain the stringent restrictions now imposed on business and individuals. Another question is how the government will manage a return to some form of "normality."
Conclusion:
Debate about these matters will continue for a long time and almost every point is intensely debatable! Furthermore, there ought to come a time when the entire handling of the coronavirus pandemic is subjected to a detailed inquiry of some sort. I hope this happens and any such evaluation must be evidence-based and objective. Government and official actions will require scrutiny with a view to future improvement and development of an improved national plan for handling crises.
For now, we have to live our lives in manner restricted by the Regulations which have been made
for the general health of the population. It is to be hoped that the need for the Regulations will be as short as possible.
The Police need to conduct their duties in a manner that retains the support that the population is undoubtedly willing to give them. If it comes to enforcement then it is vital that the Police act according to the powers the LAW gives them and no more.
Also, it would be wise for us all to follow the government's guidance.
31 March 2020
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