England’s Lockdown Regulations: a Compressed History
As Sue Gray is set to publish her report into alleged law-breaking in 10 Downing Street during the Covid-19 lockdowns, John Binns, Partner at BCL Solicitors LLP examines how the law has evolved and which rules have applied since March 2020
An extraordinary journey
The turbulent trajectory of the UK’s laws to combat the spread of Covid-19 over the last two years is such that it can be hard to recall exactly what has been prohibited and when. The following may serve as a reminder.
The original Regulations
The original use of Regulations to restrict movements and gatherings by England’s general population came into force on 26 March 2020.
Restriction on movement
In broad terms, the principal restriction (in Regulation 6) said starkly that ‘no person may leave the place where they are living without reasonable excuse’.
A non-exhaustive list of reasonable excuses was provided, which included:
- to obtain basic necessities;
- to take exercise (alone or with members of the same household);
- to seek medical assistance;
- to provide care or assistance to a vulnerable person;
- to donate blood;
- to travel for the purposes of work (where it was ‘not reasonably possible for that person to work… from the place where they are living’); and
- to attend a funeral of a member of the person’s household, a close family member, or (if no-one in those categories was attending) a friend.
The definition of ‘the place where a person is living’ included, for example, their garden.
Restriction on gatherings
At that time, the restriction on gatherings, with exceptions, including those ‘essential for work purposes’, only applied to those of more than two people in public spaces.
The criminal offence
Regulation 9 then created various offences, including of breaching Regulation 6. These were punishable on summary conviction with fines, or by Fixed Penalty Notices (FPNs), the favoured route for dealing with breaches, largely bypassing criminal proceedings altogether. The maximum penalties that could be imposed increased sharply where there were multiple breaches by the same individual.
Amendments to the original Regulations
Changes to ‘stay at home’ rules
These original Regulations were amended four times.
The first set of amendments, which took effect on 22 April 2020, amended the principal restriction to say that ‘no person may leave or be outside the place where they are living without reasonable excuse’, to cover scenarios where excuses existed at the time a person left their home, but ceased to apply later.
The second set of amendments, after the government’s messaging changed from ‘stay at home’ to ‘stay alert’ on 10 May 2020, and taking effect on 13 May 2020, extended the list of ‘reasonable excuses’, including by:
- allowing exercise, and visits to public open spaces for ‘open-air recreation’, with one member of another household; and
- amending the work-related excuse, so that it simply said, ‘to work’, rather than ‘to travel for the purposes of work’, although this may not have made any real difference, and the important caveat, ‘where it is not reasonably possible for that person to work… from the place where they are living’, still applied.
Changes to rules on gatherings
A significant third set of amendments came into force on 1 June 2020. Importantly, the principal ‘stay at home’ prohibition was replaced with one against staying away from home overnight (without a reasonable excuse).
This shifted the emphasis to the restrictions on gatherings, which now said that no person could participate in a gathering which took place:
- outdoors, and consisted of more than six people; or
- indoors, and consisted of two or more (rather than the original ‘more than two’) people.
Exceptions to those restrictions included where the gathering was ‘reasonably necessary for work purposes’, or where it took place ‘at an educational facility and [was] reasonably necessary for the purposes of education’ (to facilitate the reopening of schools).
This set of amendments also introduced a definition of gatherings, which it said occurred ‘where two or more people are present together in the same place… to engage in any form of social interaction with each other, or to undertake any other activity with each other’.
A final (fourth) set of amendments to these original Regulations, on 13 June 2020, introduced the concept of ‘linked households’, or ‘bubbles’, for the first time, in effect allowing people to stay overnight in one other household, and/or to gather with members of that household, as if it were their own.
In their amended form, these Regulations stayed in force until 4 July 2020, dubbed ‘Independence Day’ by some.
The later Regulations
The ‘rule of six’
For several months, there was no national restriction on movement, though there were various local restrictions, and the only restriction on gatherings was for more than 30 people. This was reduced to six on 14 September 2020, dubbed the ‘rule of six’; it was also subject to more and more detailed exceptions than before.
A new set of Regulations, based initially on the idea of dividing the country into ‘tiers’, from 14 October 2020:
- effectively reintroduced the previous restriction on all indoor gatherings, resembling that in place on 1 June 2020, alongside a newly tightened restriction on all outdoor gatherings, to the country on a staged, but unexpectedly rapid, basis;
- was interrupted by a brief national lockdown, dubbed a ‘circuit breaker’, from 5 November 2020 until 2 December 2020, returning to the previous restriction on leaving or being outside the home, resembling that in place on 13 May 2020, while also adapting the ‘linked household’ concept to facilitate childcare arrangements; and then
- by the creation of a new ‘tier 4’ on 20 December 2020, which was applied to the whole of England on 6 January 2021, effectively applied all these restrictions to the whole country.
These new Regulations included longer and more detailed lists of exceptions to the restrictions; they also retained the concepts of ‘linked households’ and ‘linked childcare households’. The principal rules, including on work, education, and ‘open-air recreation’ with one member of another household, however, remained substantially the same as they had been in spring 2020. Breaches of the rules remained criminal offences, albeit non-imprisonable and principally enforced by way of FPNs, though the maximum fines increased over time.
The restriction on leaving or being away from home was removed again on 29 March 2021 (and not replaced, this time, with a ban on staying elsewhere overnight). The restrictions on gatherings were lifted more gradually, under new ‘steps’ Regulations following the government’s ‘road map’:
- initially, gatherings of up to six people were allowed outdoors;
- from 17 May 2021, this was increased to 30, while up to six people were allowed to gather indoors; and
- the regulations were revoked entirely on 19 July 2021, ‘freedom day’
Does it matter?
At the time of writing, no return to these restrictions is proposed, but allegations of historic breaches remain a matter of public interest and debate.
Fundamentally, these are some of the most unusual and far-reaching criminal laws we have ever seen, or may ever see, in this country. The story of how they evolved goes hand in hand with the story of how they were enforced, complied with, and breached by different sectors of society. To understand those stories properly requires close attention to the dates on which event or alleged event occurred, and what precisely the rules were then.
John Binns is a partner at BCL Solicitors LLP in London, specialising in financial crime.
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