Charles Holland

No, there is no Downing Street Christmas party loophole

No, there is no Downing Street Christmas party loophole
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Was 10 Downing Street really a rule-free zone when it came to the coronavirus regulations, the laws which have governed our lives to varying extents since the pandemic first erupted? Steven Barrett writing on Coffee House, says that it was: 'the regulations almost certainly never applied to No. 10 anyway,' he argues. I'm not convinced.

Why? Because the so-called 'restrictions on gatherings' were restrictions that applied to individuals wherever they were, including on Crown land.

It's true that there is such a thing as a 'Crown exemption rule'. In short, an Act of Parliament doesn't bind the Crown unless there is an express provision saying so or an obvious implication that it applies. In 2017, the Supreme Court refused to revisit this rule in a case concerning whether the smoke-free legislation contained in Part 1 of the Health Act 2006 applies to Crown land. The 2006 Act did not say it bound the Crown – and, as Lady Hale pointed out, 'nothing would have been easier than to insert such a provision'. Like the Health Act 2006, the Public Health (Control of Disease) Act 1984 is silent on whether it binds the Crown. This appears to indicate that the Crown is not bound by the Act or regulations made under it.

But in the case of the Covid laws, the gathering restrictions were placed on individuals, rather than on land. The extent of the restriction on the individual differed depending on whether someone was in a private dwelling or other indoor space, in a 'public outdoor place' or in any other outdoor place.

As for 'public outdoor place', the regulations made it clear this included Crown land to which the public has access. This is a strong indication that the purpose of the gathering restrictions was to impose restrictions on individuals wherever in England they might be, including Crown land.

If so, then there is no 'Crown land' defence for ravers who break into an empty Crown building to party in breach of the gathering exemptions. This makes sense; after all, why allow such people the benefit of Crown immunity merely because they were in the ‘right place’?

But what about individuals in the public service of the Crown? Are the Downing Street partygoers bound by the Coronavirus regulations? There is nothing spelled out in the Act or the Covid rules that expressly includes Crown servants.

Is there any implication that they are included? There is case law which suggests that one necessary implication might be where if the Crown were not bound, the purpose of the enactment would be frustrated. As the virus does not distinguish between Crown servants and others – and as there are express exemptions for gatherings reasonably necessary for work purposes and in places such as prisons (which tend to be Crown land) – then it would not stretch the bounds of reason to find such an implication.

A further less extreme option is that those in the public service of the Crown only avoid being bound by the Coronavirus regulations when acting in the course of their duties, but are bound when they go off on a frolic of their own. This distinction was considered in the 1904 case of Cooper v. Hawkins, where an engine driver in the employ of the War Department drove his steam engine at three m.p.h., above the prevailing urban speed limit of two m.p.h. found in section four of the Locomotive Act 1865. In setting aside his conviction for speeding, the Divisional Court found the Act did not apply to a locomotive owned by the Crown and driven by a Crown servant. But while Cooper was acting in the course of his duties when motoring through Aldershot, Mr Justice Wills said that a Crown servant might be bound by the Act where:

'The act of over-driving might be own personal act. For instance if the man were drunk, or under circumstances in which he was not performing a public duty, and was not acting in accordance with his superior orders, he would be liable…'

All this suggests that it is anything but 'almost certain' that the Coronavirus regulations do not apply to those on Crown land. Individuals in the public service of the Crown should not assume they are exempt, particularly when acting outside their roles as such. So, no: I'm not convinced that the Downing Street party didn't break the rules.