One United Kingdom, four lockdowns?

On 26th March, three separate Statutory Instruments giving effect to the “lockdown” came into effect in England, Wales and Scotland. Northern Ireland followed suit two days later. In each case, these Regulations were made urgently by the respective governments of the four parts of the UK with no prior approval by the legislature*, citing the “serious and imminent threat to public health” posed by the spread of coronavirus. In effect, these four sets of Regulations created four materially different lockdown laws.

It is interesting to observe the different choices that each executive has made; and it is important to be aware of these differences in practice. A citizen tuning in to the UK government’s daily briefings may be forgiven for thinking that the legally-enforceable lockdown is the same throughout the country. That is not the case.

What follows is correct as of 4th May. Since the lockdown began in late March each administration has amended its own Regulations several times, and in different ways. The law is rapidly evolving.

It is vital that individuals follow the official public health guidance and comply with the law as it applies in their area.

The lockdown offence

The Regulations create a number of offences, including prohibiting gatherings of more than two people in public places (with certain exceptions); and various rules relating to businesses.

The core of the restrictions on individual liberty is the same throughout the United Kingdom: do not leave home without a “reasonable excuse”.  This lockdown or “stay at home” order was put in place by all four regions to combat coronavirus. In each case, the restrictions are in force “during the emergency period”, which will last until the relevant executive directs otherwise.

Yet beyond that core restriction, each part of the country has created its own, subtly different offence to enforce the lockdown.

England:                      Regulation 6(1), “no person may leave or be outside of the place where they are living without reasonable excuse.”

Wales:                         Regulation 8(1), “no person may leave the place where they are living or remain away from that place without reasonable excuse.”

Scotland:                     Regulation 5(1), “Except to the extent that a defence would be available under regulation 8(4) … no person may leave the place where they are living.”

Regulation 8(4), “It is a defence … to show that the person, in the circumstances, had a reasonable excuse.”

Northern Ireland:       Regulation 5(1), “no person may leave the place where they are living without reasonable excuse.”

Note that a person’s home includes the garden or yard of the premises (see, e.g. Regulation 6(3) of the English Regulations).

It is apparent that the relevant offences are broader in England and Wales than in Scotland and Northern Ireland. In the latter two jurisdictions, the question is simply whether the individual had a reasonable excuse, or purpose, for going out at the point that they left home. In England and Wales, even if the person had a reasonable excuse to leave home in the first place, they may later commit a separate offence if they are “outside”, or “remain away from”, home (respectively) without reasonable excuse.

The upshot, as I discussed in an earlier article about amendments to the English Regulations, is that having a “reasonable excuse” to leave home probably does not protect you indefinitely—at least, in England and Wales.

The burden of proof

Another key difference between the relevant lockdown rules is that in England, Wales and Northern Ireland, the burden of proof appears to lie on the prosecution to show that the person who left home (etc) did not have a “reasonable excuse”.

In Scotland, by contrast, it is for a person who is prosecuted under the regulations to show that they had a “reasonable excuse”; this operates as a defence, rather than a component of the offence.

What is a “reasonable” excuse?

In all four parts of the UK, the relevant Regulation includes a list of reasonable excuses. In each, for example, this includes the need to obtain food or medical supplies. It is important to stress that these lists are non-exhaustive, so there may be other excuses too; and what is “reasonable” is fact-sensitive.

Interestingly, however, Wales and Northern Ireland have each chosen to limit the scope of “reasonable” excuse in the context of exercise. In Wales, exercise is limited by law to “no more than once a day” unless the person has a health condition or disability which requires greater frequency: Regulation 8(2)(b). (This qualification may reflect concerns, and a threatened legal challenge, from parents of children with autism.) In Northern Ireland, taking exercise is not an excuse unless “associated travel” is reasonable: regulation 5(5).  This is, presumably, intended to cater for reported instances of people driving far from home to beauty spots (the UK government’s guidance is to exercise locally where possible: FAQ question 15, last updated 1st May 2020).

Enforcement of the lockdown offence

In Scotland, only police officers can enforce the lockdown. This is not so in the other jurisdictions; in Northern Ireland, for instance, “relevant person” includes those designated by the Department of Health (Regulation 7(12)). Enforcement can include forcibly removing someone to their home (see, e.g. Regulation 8(3)(b)-(4) of the English Regulations).

 

In sum, the four parts of the United Kingdom have taken different paths, but it does not necessarily follow that one is “right” and the others “wrong”. There must be some scope for devolved governments to adopt different solutions to a public health crisis.

Nevertheless, it is vital that citizens have clear, intelligible information about restrictions on their liberty backed by the criminal law; and that restrictions are proportionate. Equally, and given the complexities of four sets of (amended) Regulations, enforcing officials need clear guidance about the extent of their powers.

 

Rachel Jones is a barrister at Blackstone Chambers practising in public, employment, European and commercial law

 

*On Monday 4th May 2020, the House of Commons debated a motion to approve the English Regulations ie Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) and Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 (SI 2020/447). There was no division. See also, as amended: Health Protection (Coronavirus, Restrictions) (Scotland) Regulations 2020 (Scottish SI 2020/103); Health Protection (Coronavirus, Restrictions) (Wales) Regulations 2020 (Wales SI 2020/353 (W80)); Health Protection (Coronavirus, Restrictions) (Northern Ireland) Regulations 2020 (Statutory Rules of Northern Ireland 2020 No55).