A look at the Cummings story - 1

Dominic Cummings is described by Wikipedia as a British political strategist who was appointed a senior adviser to Prime Minister Boris Johnson in July 2019.

From 2007 to 2014, he was a Special Adviser to Michael Gove MP including the time that Gove served as Secretary of State for Education.

From 2015 to 2016, Cummings was Director of
the successful Vote Leave campaign, an organisation opposed to continued British membership of the European Union, that took an active part in the 2016 referendum campaign for Brexit.

Allegations:

Over the weekend 22 to 24 May, the story emerged that Mr Cummings had travelled from London in late March to visit his parents' home in County Durham during the COVID-19 pandemic lockdown.  On Sunday 24 May, the Prime Minister said that Cummings had acted "responsibly, legally and with integrity and with the overwhelming aim of stopping the spread of the virus and saving lives" - see Prime Minister Statement 24 May 2020.  The Prime Minister said that he held "extensive face to face conversations with Dominic Cummings" and concluded that Cummings had "followed the instincts of every father and every parent" in travelling "to find the right kind of childcare, at the moment when both he and his wife were about to be incapacitated by coronavirus" and "when he had no alternative."

Did Mr Cummings breach either the law or the relevant guidance when he left London to go to Durham? The law and the guidance have to be treated separately because the law is legally enforceable whereas the guidance is not. As an aside, the guidance was not given statutory recognition as is, for example, the Highway Code - Road Traffic Act 1988 s38(7).

In this post I will concentrate on the departure from London to go to the north-east and my view is based on the information in the public domain on the morning of 25 May. Further allegations have also been made: (a) that Mr Cummings and his wife were in Barnard Castle on 12 April (which is also Mrs Cummings' birthday), (b) that Mr Cummings visted a wood near Houghall on 19 April. These allegations are not considered further in this post.

The law:

The relevant law applicable in the period from 1 pm on 26 March to 11 am on 22 April is The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 - SI 2020/350. The Regulations have since been amended on two occasions but the amendments were not retrospective and need not be considered here.

These Regulations were made under section 45C of the Public Health (Control of Disease) Act 1984 (as amended) which states - "the appropriate Minister may by regulations make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales (whether from risks originating there or elsewhere)" The Regulations have to be read in the light of this purpose.

Regulation 6(1) stated - "During the emergency period, no person may leave the place where they are living without reasonable excuse."  Under Regulation 9 it is an offence to contravene Regulation 6.

Liability under Regulation 6 comes about at the moment a person leaves where he or she lives without a reasonable excuse.

Regulation 6(2) begins - "For the purposes of paragraph (1), a reasonable excuse includes the need" and then sets out a non-exhaustive list (a to m) of what would be considered to be reasonable excuses to leave where one lives - e.g. a need to obtain basic necessities or a need to seek medical assistance or a need to escape a risk of harm etc. A need to find childcare (or the "right kind of childcare") is not in the list.

BUT we must remember here that the list is not intended to be exhaustive and that other reasonable excuses could possibly exist.  For example, it is possible to envisage situations where (say) a single mother may have been in contact at work with infected persons and decides to take her child to the house of a relative so as to remove the child from further risk of infection. If such a case came to court, the mother would be able to put forward argument that she had a reasonable excuse to leave where she lives. Another situation could be where a child has a particular condition necessitating care from someone with appropriate knowledge and skills. What is "reasonable" depends, as always, on all the circumstances. It is an objective test and is a question for the court to decide.

Mr Cummings was in Downing Street on 27 March - the day after the Regulations came into force. He is shown running along the street in this news item - Metro 27 March.  That he went to Durham is not doubted but the exact date of travelling is not clear.

We know that there was some infection in the Cummings' household and he claims to have acted to protect his child. No explanation was offered as to why suitable childcare arrangements could not have been made in London. The Cummings family clearly do not lack resources and, working as he does in No 10 Downing Street, his employer could have been asked to assist with making suitable arrangements. On the basis of what we know, it seems unlikely that a court would find a reasonable excuse existed in these circumstances.

The guidance:

A mass of guidance has been issued from several sources with a view to helping people during the pandemic. The relevant guidance in this situation appears to be that issued on 12 March - Covid-19: guidance for households with possible coronavirus infection. This guidance has been updated as the pandemic has developed but the crucial element in this guidance has always been a requirement to stay at home. The guidance states -

"If you live with others and you are the first in the household to have symptoms of coronavirus (COVID-19), then you must stay at home for at least 7 days, but all other household members who remain well must stay at home and not leave the house for 14 days. The 14-day period starts from the day when the first person in the house became ill. See the explanatory diagram"

Later on, the guidance says this -

This gives some leeway to parents if following the advice is not possible for some reason but the guidance does not amplify this by including any examples of situations where it may not be possible to adhere to the measures. It is not clear why Mr Cummings could not follow (or continue to follow) the guidance though we were told by the Prime Minister that both Mr Cummings and his wife "were about to be incapacitated by coronavirus" and that "he had no alternative."

The guidance was issued as part of the national effort to fight the pandemic by reducing the risk of spreading the virus. On any sensible view it did not give individuals who were, according to the PM,  about to be incapacitated the leeway to drive 250 or more miles from London to Durham.

Breach of the guidance is not a criminal offence but responsible citizens would certainly make every effort to adhere to it. Those close to the heart of government need to be seen to be adhering to it in order to maintain the confidence of the population in the government's strategy and the actions of Mr Cummings have caused widespread public anger. Although my view does not especially matter, I think that it would have been the better decision to have removed Mr Cummings from his position as adviser. That is, of course, a decision for the Prime Minister.

Other questions:

1. On Twitter, Jess Phillips MP asked - "Are all the fines given out going to be severely undermined legally speaking. This is a genuine question?"

I am not going to attempt to answer that here. Techically, those who left where they live without a reasonable excuse are guilty of an offence. However, Bernard Richmond QC answered saying - "

"Probably not unless someone fined for doing exact same thing. However, you might want to ask Braverman for the basis of her opinion, given her position; and whether she has notified the CPS of her view so that all charging decisions are made cognisant of her guidance."

Braverman is the Attorney-General who, on Saturday 23 May, tweeted "Protecting one’s family is what any good parent does. The @10DowningStreet statement clarifies the situation and it is wholly inappropriate to politicise it."

2. Schools - the government is planning to resume education in schools for some pupils - ITV News 24 May.  In "normal times" it is an offence for a parent not to send their child to school - Education Act 1996 s.444.  Schools were closed to most pupils from 20 March and, for the period 1 May to 31 May, the Minister used powers under the Coronavirus Act 2020 to disapply section 444 - see London Gazette notice.  Guidance relating to returning to schools from 1 June was issued on 12 May notes - "Parents will not be fined for non-attendance at this time, and schools and colleges will not be held to account for attendance levels." (Note - this paragraph amended 25 May 2020 to note the disapplication of section 444).