As is perhaps inevitable when advance notice is given of a stable door shutting, the response of many in London last night was to head for the railway stations and get out of town whilst they could.
The reaction to this has been condemnation. The Health Secretary Matt Hancock described the scenes at stations as ‘totally irresponsible’. The Transport Secretary Grant Shapps weighed in, not just with condemnation, but hinting at a police response. He said ‘If you are in Tier 4, the law means you must stay at home and you cannot stay overnight away from home’; ‘Follow the guidance and please do not come to a station unless you are permitted to travel. Extra British Transport Police officers are being deployed to ensure only those who need to take essential journeys can travel safely.’ Peter Hendy, the government’s ‘Christmas travel tsar’ (who knew?) said that ‘additional BTP officers are in place to ensure only essential journeys take place’.
What does the law say?
When I refer to law, I mean the regulations, published at 6.57am on Sunday and (with the bewildering speed that has become commonplace during this pandemic) coming into force 3 minutes later at 7am. What I do not mean is guidance, ministerial or departmental statements, nor what is morally right or epidemiologically sensible. Whilst those matters are extremely important, they are not laws that the police can enforce. Rather, for lawyers (and the courts) they are matters of personal responsibility.
From the get-go, despite having draconian powers at its fingertips, the government seems to have resolved to overstate its exercise of those powers in published guidance, rather than taking the more obvious step of passing laws that matched what it wished for.
An early example of this was guidance published at the time of the first lockdown in March to the effect that exercise could only be taken locally, and only once a day. There was no regulatory basis for these qualifications, and the offending guidance was withdrawn following a threat of legal challenge. When the second lockdown came into force in November, guidance suggested that travel (including travel abroad) was only permitted for specific reasons, when the actual regulations said nothing about travel and did not prohibit leaving the home when there was a ‘reasonable excuse’ to do so. And, when the country emerged from lockdown and into the three-tier system earlier this month, government guidance advised residents of Tier 3 areas to ‘avoid travelling to other parts of the UK … other than where necessary’. Whilst obviously sensible advice, this injunction did not form any part of the regulations: that did not prevent at least one Tier 2 police force from issuing a statement as to what it thought was ‘necessary’ for these purposes and ominously stating that it would be ‘actively patrolling’ its ‘border areas’.
And so the theme continues today. The new Tier 4 regulations do not contain any express restrictions on travel, ‘essential’ or otherwise. What they effectively consist of is a cut and paste of the second national lockdown regulations to take effect as Tier 4 restrictions. And so, as was the case nationally during Lockdown Two, the new regulations provide for a restriction on ‘movement’: no person who lives in the Tier 4 area may leave or be outside of the place where they are living ‘without reasonable excuse’. The regulations then give what lawyers would call a ‘non-exclusive’ list of exceptions which constitute ‘circumstances in which a person has a reasonable excuse’. The list is non-exclusive because an excuse which is reasonable but not listed will also suffice. Whether or not an excuse is reasonable is a question of fact (ultimately for a court). There are 16 categories of exceptions, too detailed to comprehensively paraphrase here, but they include a mix of broadly drafted circumstances (such as work purposes) right down to the hyper-specific (visiting a waste disposal or recycling centre). A particular exception is ‘to visit a member of a house which is a linked household’ - so someone living in Tier 4 who is in a so-called ‘support bubble’ with another household in England can lawfully be away from where they live to visit that household (and a separate exception to the gathering restrictions permits that support bubble to gather in the same place).
What the English regulations don’t do is place any ban on journeys that are not ‘essential’. There is no direct restriction on travel in the regulations, and it is not right to speak of being ‘permitted’ to travel. A restriction is only reached by the indirect route of the ban (for those who live in Tier 4) on leaving or being away from the home ‘without reasonable excuse’. And indeed what might colloquially be regarded as non-essential may be deemed to be reasonable by virtue of coming within one of the 16 categories of excuse.
So, although the deployment of police at railway stations might have the highly beneficial effect of discouraging travel from a viral hotspot, there is no requirement for residents of Tier 4 to only be undertaking ‘essential journeys’, and no lawful way by which travel could be policed on that basis.
However, the new Tier 4 regulations have resurrected from the Lockdown Two regulations a specific power to police constables and support officers (PCSOs), where they ‘consider that a person is outside the place where they are living’ in contravention of the restriction on movement, to ‘direct that person to return to the place where they are living’.
Whilst Messrs Shapps and Hendy (in my view) go further than the law in saying that only ‘essential journeys’ are permitted, if an individual constable’s consideration is that a journey constitutes a breach of restriction on leaving home, and a direction is given, then a debate at that point about whether that direction was right or wrong does not prevent the direction having effect. This is a significant reinforcement of police powers. It could make the sort of distinctions lawyers draw between law and guidance of less practical relevance on the ground.
None of the above should constitute encouragement for people to take unwise advantage of the ‘reasonable excuse’ exception. Professor Chris Whitty’s advice yesterday to a hypothetical Tier 4 resident with a packed bag ready to travel to ‘please unpack it at this stage’ is something that will have given many serious pause for thought. The law does not, however, go as far as Mr Shapps and Mr Hendy imply. What might be the right set of laws is outside this lawyer’s competence: but, whatever the law is, it would be helpful to have clarity and consistency between law and guidance, rather than disparity and confusion. We are nine months into the pandemic and that has yet to be achieved.
Charles Holland is a barrister at Trinity Chambers and Francis Taylor Building.