The first thing that any lawyer finds out when they leave law school and start practice is that, in the real world, very few cases turn on what the law is: almost all cases turn on the evidence. So any analysis of whether and why a politician breached lockdown rules needs the health warning that it all depends on the precise evidence. What legal commentary can do, though, is to give you a guide as to what the rules were and what facts are likely to be critical or completely irrelevant, and help you to pick out the points that matter from the dross.
The lockdown rules in England were highly complex and varied over time. But for present purposes, in looking at allegations over the second main lockdown period from autumn 2020 to spring 2021, the key point was that “gatherings” were generally prohibited unless various exceptions applied. The critical exception for present purposes is that gatherings were permitted when they were “reasonably necessary for work purposes.”
The drafting of that phrase indicates that the gathering had to be (a) for work purposes and (b) reasonably necessary for those purposes. Gatherings for the purposes of dancing to loud music, getting tipsy together, or celebrating a life event would not be “for work purposes.” In those cases the question of whether the gathering was “reasonably necessary” would not arise. On the other hand, a gathering of employees held in order to discuss their employer’s marketing strategy would be “for work purposes”—though if the meeting could just as effectively have happened online, it would not have been “reasonably necessary.”
Once you have got that framework, you can begin sensibly to analyse the various events that have been splashed across newspaper front pages to see what is important and what is froth. The key first question to ask is: “what was the purpose of the gathering?” or, in other words, “what were the people involved coming together to do?” If the answer is “to celebrate a life event” or “to relax and socialise” then the gathering was not “for work purposes,” and the work exception will not apply. If the answer is “to discuss or engage in political/party/government business” then (if you are talking about politicians, political advisers and party officials) you have a gathering that is “for work purposes.”
If the purpose is in dispute, what facts are likely to be relevant to whether a gathering was “for work purposes”? The fact that food and drink was provided during or at the beginning or end of the meeting will not in itself get you very far, as humans cannot work effectively for hours on end without nourishment. But if nothing much happened at the event apart from enjoying the food and drink, then you can sensibly infer that the gathering was not “for work purposes.” It is irrelevant whether the food and drink was planned in advance, as any well-organised long meeting will involve the organisation of refreshment. The odd alcoholic drink is, even these days, not inconsistent with a work meeting, especially during the evening: but if large quantities of alcohol are organised or consumed, that rather casts doubt on the gathering being genuinely for work. A bit of gossip and chat before, during, or at the end of a work meeting is still consistent with the purpose of the gathering being work: but a gathering where gossip and chat is all that happens is unlikely to have been “for work purposes.”
The fact that a gathering was for work purposes is not the end of the matter: you also have to look at (b). A meeting in real life that was genuinely for work purposes but which could just as effectively have been held online would not have been “reasonably necessary.” However, once a police officer or court has accepted that the purpose of a gathering really was political or government business, it would be a brave move for them to say that it wasn’t “reasonably necessary” for that business: is a police officer or court really—except in clear-cut cases—the best judge of that? In practice, therefore, I suspect that all these cases will turn on (a) and the question of the purpose of the gathering.
By this point, you may well be wondering whether the focus in the rules on the purpose of each gathering makes sense, especially if the people concerned at a particular event were regularly meeting anyway for genuine work purposes. The answer is that the public health emergency required the prohibition of most social contact. Drawing the line between what had to stop and what needed to be permitted in order to keep the basic infrastructure of national life running was not an easy task and was bound to involve lines being drawn in difficult places. And in an environment where every additional gathering of people created additional risk of transmission, it made sense to have a rule that kept people apart—even if they worked in the same building—unless they were genuinely getting together to work. Ignoring that rule therefore carried with it a real public health risk, as well as disrespecting the sacrifices made by those millions of ordinary citizens who were trying at immense personal cost to comply with the restrictions.
