Making Sense of the Amended Lockdown Law

1 May 2020 by Guest Contributor

As has been widely reported, not least on this blog, the ‘lockdown’ imposed by the UK Government to tackle the continuing pandemic is governed in the main by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) (the Original Regulations).

What has been less widely publicised is that the Original Regulations were recently amended by the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 (SI 2020/447) (the Amending Regulations). These came into force at 11am on Wednesday 22 April 2020. 

As this could otherwise get confusing, I’m going to call the Regulations that are currently in force, i.e. the Original Regulations as amended by the Amending Regulations, the Current Regulations.

The Amending Regulations enact a number of changes to the lockdown law, some more consequential than others. This post does not go through the more insignificant changes in any great detail; for example, Amending Reg (4)(b)(iv) correcting the name of DWP in Original Reg 6(i)(iii) from “Department of Work and Pensions” to “Department for Work and Pensions”. 

What this post does instead is outline four of the changes provided for by the Amending Regulations in ascending order of importance.

• Increasing the scope of the Original Regulations

Certain amendments increase the scope of the Original Regulations. For example, Amending Reg (6)(a) replaces “over the age of 18” with “aged 18 or over”, meaning that 18-year-olds can now be issued with a fixed penalty notice under Current Reg 10(1). Amending Reg (7)(a) shuts outdoor swimming pools as well as outdoor gyms, playgrounds and sports courts: see Schedule 2 paragraph 20 of the Current Regulations.

These changes don’t drastically change the scope of the Original Regulations. Their original omission was almost certainly a mistake. But the making of such simple mistakes does raise the question of whether the Original Regulations were subject to sufficient scrutiny in the first place.

• Re-opening burial grounds

A more important change is contained in Amending Reg 2(3). Original Reg 5(8) obliged crematoriums and burial grounds to shut, except during funerals or burials. This prevented mourners from visiting the graves of their loved ones during the lockdown period. 

Amending Reg 2(3) means that the lockdown does not apply to grounds surrounding a crematorium, “including any burial ground or garden of remembrance”. The Communities Secretary has since asked councils to reopen any closed cemeteries and graveyards. This is a welcome relief for bereaved families and friends, who are no longer prevented from paying their respects to their loved ones.

• Enforcing the ban on gatherings

Original Reg 7 prohibited gatherings of more than two people in a public place. The police were empowered, under Original Reg 8(9)(c), to disrupt such gatherings and “remove any person in the gathering to the place where they are living”. 

However, it was left unsaid exactly how the police were to achieve this. The Original Regulations made no provision for use of force to enforce the prohibition on gatherings under Original Reg 7 –  they only made provision through Original Reg 8(4) for use of reasonable force, if necessary, to enforce the prohibition on leaving the house without reasonable excuse under Original Reg 6. 

This lacuna has now been filled by Amending Reg 2(5)(b). The police may now use reasonable force, if necessary, to remove a person from a gathering to a place where they are living: see Current Reg 8(10). 

However, it would appear that prior to Wednesday 22 April, the police were not so empowered. Anyone who, before that date, was a member of a gathering broken up by police and who was forcibly returned to their home may wish to seek legal advice on their treatment and any resulting enforcement action. 

• The new offence of being outside of your home

This is the most important change. Original Reg 6(1) created the offence of leaving your home without a reasonable excuse. However, having left your home with such an excuse, it was open to you to stay outside of that home for as long as you wished. The ‘reasonable excuse’ factor attached only to the leaving of the home. 

Whether this was intentional on the part of the parliamentary draftsman or not, it follows from the strict wording of Original Reg 6(1) that, prior to Wednesday 22 April, you did not commit an offence by being outside at any point as long as at the time that you left your house you had a reasonable excuse to do so. 

After 11am on Wednesday 22 April, Current Reg 6(1), amended by Amending Reg 2(4)(a), now reads:

Restrictions on movement

6. (1) During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse.

With no Parliamentary scrutiny, the Amending Regulations have created a new offence. Even if you had a perfectly good excuse to leave the house in the first place, staying outside once that excuse has ‘expired’ is now against the law. In case there was any doubt about this conclusion, paragraph 6.6 of the Explanatory Memorandum to the Amending Regulations confirms that “a person commits an offence if they remain outside of their home without a reasonable excuse, having left it for a permitted reason.”

This raises more questions than answers. At what point in time does a reasonable excuse expire? If you are outside for exercise (a reasonable excuse under Current Reg 6(2)(b)) but then take a break to answer a phone call, do you commit an offence? On a literal reading of Current Reg 6(1), it would appear that you do. It would probably be a surprise to millions of people in the UK to hear that, at some point over the last week, they have committed an offence. 

Similarly, on the plain wording of the law, the reasonable excuse of shopping for basic necessities (see Reg 6(2)(a)) now expires once those basic necessities have been obtained. Under the Original Regulations, it was legal to also purchase other goods as long as you left the house for the purpose of obtaining basic necessities. 

Conclusion

Inevitably, how Current Reg 6(1) will affect different factual situations is uncertain. Yet the problem is emblematic of the subjectivity surrounding the lockdown law. Such subjectivity risks confusion by leaving people reliant on a generous interpretation of the law by the police on the day, instead of being able to rely on the clear, precise and unambiguous wording of the legislation.

Oliver Jackson is a pupil barrister at Monckton Chambers