Unprecedented times have meant unprecedented restrictions on commercial and personal freedoms.

But, confusion is arising about what the law actually says, how it is should be interpreted and implemented. Some Government guidance states things ‘must’ be done where this is not an actual law but in fact very strong advice, for entirely sound reasons.

Everyone needs to know where the actual law is in all this.

This is not academic – it is a fundamental necessity that there should be clarity. Good law is clear and unambiguous – interpreted equitably, proportionately and consistently.

All this is creating problems for businesses or individuals and for police and other authorities all of whom need legal certainty.

The legal bit

Restrictions on gatherings

In normal times Regulation 7 (Health Protection (Coronavirus, Restrictions) (England) Regulations 2020) would be astonishing for any democratic society as: ‘no person may participate in a gathering in a public place of more than two people’.

There are exceptions where:

• all the persons in the gathering are members of the same household
• the gathering is essential for work purposes
• to attend a funeral
• where reasonably necessary in these situations (i) to facilitate a house move or (ii) to provide care or assistance to a vulnerable person or (iii) to provide emergency assistance, or (iv) to participate in legal proceedings or fulfil a legal obligation.

Restrictions on movement & reasonable excuse

The basic regulation is that you may not leave the place where you are living ‘without reasonable excuse’. (Regulation 6 Health Protection (Coronavirus, Restrictions) (England) Regulations 2020).

But, what is meant by ‘reasonable excuse’? The regulations state what is included in ‘a reasonable excuse’. (A full list is included at the bottom of this blog NB this is NOT a definitive list – there may be other reasonable excuses.) Some things are very clear whilst some will be subject to a greater degree of interpretation.

Exercise

‘Reasonable excuse’ permits citizens ‘to take exercise either alone or with other members of their household’.

Here the England regulations set out no restriction on the number of occasions daily exercise can take place or its duration. (Oddly enough the Wales regulations state “no more than once a day”!). We have heard reference to no more than one hour of exercise being permitted per day. But, again, this is not the law. As though this is a legal limit HM Government guidance states ‘one form of exercise a day, for example, a run, walk, or cycle – alone or with members of your’ household’. Further, there is no prohibition in relation to the distance of travel to a location in order to carry out the exercise.

So, the question is whether repeated daily exercise or how much travel in specific cases amounts to ‘a reasonable excuse.’ There is anecdotal evidence of issue being taken with those who walk through a park but then sit on a bench for a rest. Sunbathing away from the home address would seemingly clearly not amount to a reasonable excuse. In between black and white, there are many shades of grey.

Food/medicines etc

A reasonable excuse is to ‘obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons …and obtain….’ supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or..’ to obtain money, including from any business…’.

There is no legal restriction on the number of such trips though Government guidance states shopping ‘must be as infrequent as possible’. Again, some of this is open to interpretation: what amounts to ‘basic necessities’? Is a trip to a supermarket solely to buy wine or beer or cream cakes ‘a reasonable excuse’? One person’s necessity is another’s non-necessity or luxury.

Travel

Within reasonable excuse is the ability to travel:

a) for the purposes of work

b) to provide voluntary or charitable services

But with the rider that this must be ‘where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living’.

This is very hard to police. In some cases, it will be obvious that work cannot be conducted at home. The Government guidance here states: ‘Sometimes this will not be possible, as not everyone can work from home. Certain jobs require people to travel to, from and for their work – for instance, if they operate machinery, work in construction or manufacturing, or are delivering front line services.’

There are clear tensions here: some might not want to work at home but could do so. Some employees want to work at home but be under pressure to attend their normal place of work. There is clear evidence that some workers are being asked by police to account for their journeys en route to/from work – in essence, whether ‘reasonable excuse’ is made out.

HM Government’s policy position is: ‘With the exception of the organisations covered above in the section on closing certain businesses and venues, the government has not required any other businesses to close – indeed it is important for a business to carry on. Employers and employees should discuss their working arrangements, and employers should take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working.’

Penalties

All this is taking place where most people are trying to operate in the spirit of the time. But there will be circumstances where enforcement action may be taken

A fixed penalty or a court fine can be imposed for breaching the regulations.

It is highly likely that most breaches will be dealt with by way of a fixed penalty notice. The sum of £60 is payable for the first fixed penalty notice (reduced to £30 if paid within 14 days) then £120 for a second fixed penalty notice. For a third and subsequent fixed penalty notice, the amount is double the amount specified in the last fixed penalty notice, up to a maximum of £960 (seemingly a fifth penalty notice.) As with most penalty notices it may be a risky strategy to contest a fixed penalty in court given one cannot recoup one’s legal costs, a problem in all such challenges. Where such case does take place they will be many months away given that no non-urgent cases of any kind are currently being heard in live court hearings (virtual courts are sitting).

List of some permitted activities outside the home

The Regulations: a reasonable excuse includes the need:

• to obtain basic necessities, including food and medical supplies for those in the same household or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money
• to take exercise either alone or with other members of their household
• to seek medical assistance
• to provide care or assistance to a vulnerable person, or to provide emergency assistance
• to donate blood
• to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living
• to attend a funeral of (i)a member of the person’s household (ii)a close family member, or if neither of those attending, a friend
• to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings
• to access critical public services, including (i) childcare or educational facilities (where these are still available to a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child); (ii) social services; (iii) services provided by the Department of Work and Pensions; (iv) services provided to victims (such as victims of crime)
• in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child
• in the case of a minister of religion or worship leader, to go to their place of worship
• to move house where reasonably necessary
• to avoid injury or illness or to escape the risk of harm.

Further information

We will continue to update you about developments as they arise.

Please contact Tim Ridyard for individual advice for your business.

Alternatively, if you or your business require advice or need assistance for any road transport matters, please get in touch with our specialist Regulatory team through this website or by calling 0330 404 0778.

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This information is correct at 3.30pm on 2 April 2o20.