Dominic Cummings and the law

26 May 2020

In a previous post (see here), I discussed the law, regulations and guidance applying to the general public throughout the Covid-19 crisis, and how this changed on 10 May when the Government changed its messaging from ‘Stay at home; Protect the NHS; Save lives’ to ‘Stay alert; Control the virus; Save lives’. Whilst this guidance seeks to regulate and control what people may do in their day to day lives, there has been additional, more specific law and guidance directed at individuals who have, or may have, the virus.

The last couple of days have thrust this law and guidance into the spotlight again due to reports across the media (for example see here and here) of a trip taken by Dominic Cummings to his parents’ home in Durham when his wife was suffering symptoms of Covid-19. Whilst the weekend stories provided the allegations, at a press conference on 25 May Mr Cummings provided his defence.

Mr Cummings says that he drove to Durham on the evening of 27 March when his wife, Mary Wakefield, had begun experiencing symptoms of the coronavirus. Fearing that he too would begin to feel unwell, and that there would be no-one to look after their 4 year old son, Mr Cummings made the decision to drive to his parents’ farm. There, his family stayed in a cottage on his father’s land. They did not meet his parents (who live in another cottage) or his sister and her children (who live in a third cottage). However, Mr Cummings was reassured that his sister and nieces had volunteered to look after his son should that become necessary.

Mr Cummings became unwell with suspected Covid-19; however his wife had recovered and in fact the couple did not need to call upon Mr Cummings’ family to assist with childcare. In Durham, Mr Cummings made a further two trips. The first was on 3 April to pick his son up from the hospital where he had been admitted the previous day. The second was on 12 April. That was in advance of the family’s return to London as Mr Cummings claimed that he wanted to test that he was well enough for the long drive, particularly given he felt the virus had impacted his eyesight. For this, he drove to Barnard Castle (though he says he did not visit the castle itself), stopped briefly beside a river, and then drove back to his parents’ home. The following day Mr Cummings returned to London with his wife and son.

Regulations

If what Mr Cummings says is true, he may not have broken the law. There are two aspects to consider: the coronavirus regulations and the Government’s guidance.

At the time of Mr Cummings’ trip to Durham, the version of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 enacted on 26th March 2020 was in force. Under Regulation 6, “during the emergency period, no person may leave the place where they are living without reasonable excuse”. What might constitute a reasonable excuse was then detailed in a non-exhaustive list, including taking exercise alone or with members of your household and seeking medical assistance. Whilst accessing critical public services including childcare was also listed, this does not seem to relate to relatives who might care for your child but rather access to public services.

Regulation 6 as it is now prescribed contains a wider definition of what constitutes a reasonable excuse, largely in relation to spending more time outside. However, travelling to see relatives in their home is still not permitted, nor are overnight stays in places other than your home.

In tweets such as those by Rishi Sunak, Michael Gove and Matt Hancock, ministers have sought to stress that Mr Cummings was acting ‘responsibly’ to source care for his child. This is, perhaps, an effort to suggest that Mr Cummings’ excuse for leaving his home was reasonable.

Reasonable excuse

On Monday, Mr Cummings sought to stress that the guidance (see below) provides exceptions where the interests of young children need to be considered. As such, given his and his wife’s health, and his desire to ensure his son could be cared for, Mr Cummings argues that he did have a reasonable excuse to leave his house in London and drive to Durham.

What might be more difficult to claim as reasonable is the trip made by the Cummings family on 14 April. Given his recovery from illness and desire to return to work, Mr Cummings considered that a test drive was reasonable prior to driving to London. It is questionable whether the 30-mile drive to a nearby town can properly be regarded as essential.

Guidance

The reasonableness of Mr Cummings’ conduct will be informed by the Government’s guidance.

Firstly, the Government has issued guidance on essential travel during the Covid-19 pandemic, in force since 22 March. This states that, “essential travel does not include visits to second homes, camp sites, caravan parks or similar, whether for isolation purposes or holidays. People must remain in their primary residence.” It is the Government’s position that travelling to a second residence, be that closer to parents, friends, or the seaside, is simply not permitted irrespective of whether this is to assist with isolation or otherwise. As such, Mr Cummings’ trip to Durham to isolate in a home close to his parents appears to run in contravention to the guidance on essential travel.

Secondly, Mr Cummings’ trip also appears to contradict the Government’s guidance on social distancing. This was withdrawn on 1 May but was in force at the time of Mr Cummings’ drive to Durham. It advises “those who are at increased risk of severe illness from coronavirus (COVID-19) to be particularly stringent in following social distancing measures”. Those listed as being at increased risk include those who are over 70, as Mr Cummings’ parents are.

Thirdly, the Government’s guidance for households with possible coronavirus infections, first published on 12 March, is relevant and, indeed, is relied upon Mr Cummings. It states that “If you live with others and you or one of them have symptoms that may be caused by coronavirus (COVID-19), then household members must stay at home and not leave your house for 14 days”. However, it acknowledges that not all its measures may be possible if living with children, and it stresses that people must “keep following this advice to the best of [their] ability”. Mr Cummings has relied on this exception to explain the reasonableness of his trip to Durham and he appears to argue that strict compliance was not possible given the circumstances of his situation and the need to safeguard his child.

On 24 May, the prime minister defended Mr Cummings, stating that, "In every respect, he has acted responsibly, legally and with integrity."

Further Inquiry?

Ultimately, the reasonableness of Mr Cummings’ excuse for travel can only properly be assessed when the full facts are known and once Mr Cummings’ account is tested.

Mr Cummings’ statement made clear that he did not ask Mr Johnson’s permission, or even inform him of his intention, to drive to Durham. However he says that he informed the prime minister of his whereabouts the following week, albeit that due to their health neither of them fully recall the conversation. He further stated that he had only discussed his movements in detail with Mr Johnson following the breaking of the story over the weekend.

The discussion of Mr Cummings’ behaviour is likely to remain in the public attention for so long as he remains in his position advising the prime minister. His statement makes it clear that he considers he had a reasonable excuse to travel in the way that he did. Whether his reasoning can be objectively assessed as such will determine whether he broke the Regulations and acted in contravention of the Government guidance. However, such considerations cannot properly take place unless there is some form of inquiry to establish the truth of the account he has provided.

Durham constabulary has reportedly received information from members of the public since the story of Mr Cummings’ trip broke over the weekend and is said to be is reviewing the information. Meanwhile, Sir Keir Starmer and the SNP have written to the head of the Civil Service, Sir Mark Sedwill, to ask him to investigate the trip.

As a SpAd (Special Advisor), Mr Cummings is bound by the Government Code of Conduct for Special Advisors. This states that “special advisers are bound by the standards of integrity and honesty required of all civil servants as set out in the Civil Service Code.” This Civil Service Code sets out the expectations on civil servants to always act in a professional way and to retain the confidence of all those they deal with, and to set out the facts and relevant issues truthfully. A number of Tory backbench MPs have also called for a full inquiry.

Rebecca Steels

9 Bedford Row

26 May 2020

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