Enforcing "Stay Alert"

13 May 2020

On Sunday, the Government’s guidance to the public in combatting the coronavirus changed. What was previously the directive command of ‘Stay at home; Protect the NHS; Save lives’ was altered to the more ambiguous request to ‘Stay alert; Control the virus; Save lives’.

This has prompted media fury and Twitter outcry. For most, complying with Government advice is something they want to do; the new slogan, combined with Boris Johnson’s televised address, did not specify how they can continue to. For all the jokes surrounding the impossibility of staying alert to an invisible virus, what seems clear is that the Government wants the public to stay alert to the rules. What is perhaps less clear is what those rules require.

The Regulations and the “Stay Alert” policy

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulations) came into force on 26 March 2020. Following the Government announcement of the ‘Stay Alert’ policy, on 12 May the Government published the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No.2) Regulations 2020. These amend those which came into force on 26 March, and were laid before Parliament on 13 May at 9.30am, coming into force on the same day. It is important for individuals to appreciate and understand how the Government advice relates to the Regulations so that people can comply with the advice without fear of breaching them. It is an offence to breach the Regulations which can be punished by summary conviction or fine (see here).

Regulations 6 and 7 are perhaps those that have the greatest impact on our day to day life as Regulation 6 restricts our movement and Regulation 7 restricts gatherings. Considering Regulation 6 first, Boris Johnson announced on Sunday that, from Wednesday, “we want to encourage people to take more and even unlimited amounts of outdoor exercise”. Under Regulation 6(2)(b), people have always been permitted to take exercise and the Regulation set no time limit. As such, the change announced by the Prime Minister is actually not a legal change but simply a policy change as to what is considered to be a reasonable excuse.

Likewise, permissions to sit in the sun in the park and play sport with members of your household constitute an expansion of what Government policy considers a ‘reasonable excuse’ for being outside the home (see here). The list of reasonable excuses detailed in Regulation 6(2) was never an exhaustive list; however the amendment regulations have added to it, so that it now includes both taking exercise and visiting a public open space for open air recreation, either alone, with one or more members of their household, or with one member of another household.

Regulation 7 states that “no person may participate in a gathering in a public place of more than two people” except where specified exceptions apply. This position has not changed. It is still the case that people may not meet more than one person from outside their household, and if they do meet one person, this must still be at the socially distanced parameters of 2 metres apart, and in a public place.

There is some apparent discrepancy here between previous guidance and the Regulations. The Regulations have always been set out in this way. However, because under previous guidance the reasonable excuses for being outside your house were more limited there would previously have been no opportunity lawfully to meet one other person outside of your household. This is because, whereas previously people were only permitted in outdoor space such as parks for the purpose of exercise, and exercising was only permissible “alone or with members of your household” (see here) now, with the expansion of reasonable excuses for being outside under regulation 6 as detailed above, people will have the opportunity to meet one other person who is not from their household in a way that they were not able to before.

Whilst there has been a small shift in policy in relation to social interaction, the legal position under the Regulations remains the same. It will be when “Step Two” of the Government’s route out of lockdown begins (see here, p.31), and more social contact is permitted, that Regulation 7 will need to be amended.

Enforcement of the Regulations

Turning to enforcement, the police have been clear that their strategy is “Engage, Explain, Encourage and Enforce” (see here). Where members of the public can point to inconsistencies in Government messaging, and unrealistic expectations arising from rollout of the policy, it will be harder for police effectively to explain and encourage. Several inappropriate prosecutions under the Act and Regulations to date suggest that enforcement has not been smooth thus far.

The first prosecution under the Coronavirus Act 2020 was the prosecution of Marie Dinou (see here) who was prosecuted for failing to provide her identity or reasons for travel to police, and failing to comply with the requirements of the Coronavirus Act having been arrested loitering at Newcastle train station. The CPS subsequently had to re-list the matter, overturn the conviction, and withdraw the charges after it became clear that the police had not suspected that Ms Dinou was infectious.

More recently it has been reported that Sultan Monsour, a homeless man, appeared in court charged with being ‘outside of the place where you were living, namely no fixed address’ (see here). Despite Regulation 6(4) expressly providing that “Paragraph (1) does not apply to any person who is homeless”, the CPS asserted that it would be pursuing the prosecution. Given these seemingly unlawful prosecutions, it begs the question whether the CPS review of all prosecutions brought under the Regulations announced on 2 May – the first review of its kind – is having proper effect.

Boris Johnson stated on 10 May that “The Government will impose higher fines to reflect the increased risk to others of breaking the rules as people are returning to work and school. The Government will seek to make clearer to the public what is and is not allowed.” (see here, pg.29) It is, therefore, Government policy to increase the fines imposed on people for breaching rules.

Businesses and transport providers

More problematic, however, is the new position for businesses and transport providers. The Government’s Recovery Strategy clearly states that “All workers who cannot work from home should travel to work if their workplace is open.” (see here, pg.25) It also states that “When travelling everybody (including critical workers) should continue to avoid public transport wherever possible.” (see here, pg.26) Putting to one side the disconnect this might reveal between the Government and its understanding of how many people travel to work on public transport, the guidance on making workplaces and transport systems safe is, as yet, unknown. On 10 May, the Prime Minister stated that individuals would be encouraged to go to work from 13 May. However, the Recovery Strategy, published on 11 May, states that the COVID-19 Secure Guidelines are to be released “this week”. These are guidelines which are to “set out how each type of physical space can be adapted to operate safely” and will apply to both workplaces and transport operators (see here, pg.22).

There is no concrete date for the Guidelines’ publication. Rather, it is foreseeable that businesses and transport operators will need time to put in place measures which will render them compliant. Expecting people to return to work before the guidelines are published, let alone implemented, is perhaps suggestive of an expedited approach adopted by Government to lifting the lockdown. This might in turn lead to legal action by employees compelled to return to work against workplaces and employers who are not acting consistently with guidelines which they in turn have been given no time to implement.

Inconsistency

An additional issue is that the announcement creates apparent inconsistency. One example is the active encouragement of people to go to work if they cannot work from home. The Government’s Recovery Strategy states that “All workers who cannot work from home should travel to work if their workplace is open.” (see here, pg.25) This, then, perhaps suggests that employees may be permitted to go to into homes to undertake their work (e.g. plumbing or cleaning services) but would not be permitted to have one member of their extended family visit their own home. Similarly, a person is now permitted to meet one person from outside their household in a public space such as a park (see here, pg.27), provided they remain socially distanced, but is not permitted to meet this person, remaining socially distanced, in their garden. Again, the Recovery Strategy states that “People may drive to outdoor open spaces irrespective of distance” (see here, pg.27) but highlights that they may not travel to other parts of the UK, such as Wales or Scotland, due to the differing advice and guidance in place there.

Whilst it is important, of course, to follow Government advice and stay alert to prevent transmission of this virus, perhaps it is equally important is to stay alert to how the Coronavirus emergency legislation is being enforced and policed. An inconsistent, and arguably rushed Government policy, published prior its own new Guidelines, will inevitably lead to confusion, and if we do not remain alert to our rights and responsibilities, could lead to more wrongful enforcement, prosecutions and convictions.

Rebecca Steels

9 Bedford Row

13 May 2020

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