In these extraordinary times, it may be worth a reminder of precisely how the UK government is able to criminalise ordinary conduct by the general population, such as leaving one’s home, or ‘gathering’ with people, in response to the threats of a pandemic. By looking at these powers and how they have been used before in England, we may be better placed to predict how they may be used again, perhaps imminently.
What powers does the government have to impose lockdowns?
The enabling primary legislation is the Public Health (Control of Disease) Act 1984 (‘the 1984 Act’), specifically a set of provisions added (after the 2002-2004 SARs outbreak) in 2008 (as Chapter 2A, Sections 45A to 45T). Among other things, these empower the appropriate minister to make ‘health protection regulations’.
What we might refer to as ‘lockdown’ restrictions and offences are examples of regulations described in the 1984 Act as ‘imposing… restrictions or requirements on or in relation to persons, things, or premises in the event of, or in response to, a threat to public health’ (s45C(3)(c)). The appropriate minister may make these if they consider them to be ‘proportionate’ (s45D(1)). Their provisions may include the creation of offences (s45F(2)(b)), albeit punishable only with fines rather than imprisonment (s45F(5)(a)).
With respect to parliamentary procedures, the 1984 Act says that such regulations must normally be made only after a vote in both houses (the ‘draft affirmative’ procedure) (s45Q), unless the minister declares that, by reason of urgency, it must instead be made subject to a confirmatory vote by both houses (the ‘made affirmative’ procedure) (s45R). Ministers have routinely made use of these urgency provisions for lockdown measures, though not without controversy. Because the regulations are secondary legislation, the choice is either to accept or reject them in their entirety; they are not susceptible to amendment.
How have these powers been used in the pandemic?
Measures short of lockdowns
In the very early days of the SARS-CoV 2 (Covid-19) pandemic, the government made use of the 1984 Act to impose restrictions on international travel, and to close various business premises, while issuing (non-binding) guidance to the public at large (including on avoiding public transport, social distancing, ‘staying local’, wearing of face coverings or masks in various settings, and working from home), and to specific groups (such as on ‘shielding’ of those deemed ‘clinically extremely vulnerable’).
Other measures, not involving the creation of specific offences, were (and have since continued to be) imposed via local licensing authorities and providers of public education, health and social care, and transport services. Specific regulations under the 1984 Act on self-isolation, face coverings (masks), and ‘Covid passports’ have also since been added to the government’s armoury for tackling the disease and its effects.
The first national lockdown
The first use of the 1984 Act (not, it should be noted, the Coronavirus Act 2020 – the cause of some initial confusion by police and prosecutors, who tried to pursue breaches under the latter) to impose restrictions on people’s movements and gatherings was announced on 23 March 2020, with Regulations coming into force (for England) on 26 March 2020. Among other things, they provided that:
- ‘no person may leave the place where they are living without reasonable excuse’ (later amended to ‘leave or be outside’, to cover scenarios where excuses arise, or cease to apply, while the person is outside);
- ‘no person may participate in a gathering in a public place of more than two people’ (subject to exceptions); and
- ‘a person who, without reasonable excuse, contravenes a requirement [as above] commits an offence’.
Non-exhaustive lists of reasonable excuses and exceptions were provided. The offences were punishable on summary conviction with fines, or by fixed penalty notices (‘FPNs’) (the favoured route for dealing with breaches, largely bypassing criminal proceedings altogether). The maximum penalties that can be imposed increase sharply where there are multiple breaches by the same individual.
Restrictions on overnight stays and gatherings
As the list of ‘reasonable excuses’ lengthened, and guidance changed from ‘stay at home’ to ‘stay alert’, significant amendments to these Regulations came into force on 1 June 2020, so that they then said that:
- ‘no person may, without reasonable excuse, stay overnight at any place other than the place where they are living’; and
- ‘no person may participate in a gathering which takes place… (a) outdoors, and consists of more than six persons, or (b) indoors, and consists of two or more persons’.
A further amendment, from 13 June 2020, introduced the concept of ‘linked households’ (or ‘bubbles’) for the first time, in effect allowing people to stay overnight in one other household, or gather with members of that household, as if it were their own.
The original Regulations were then revoked and replaced on 4 July 2020. For several months, there was no national restriction on movements at all (though there were various local restrictions, notably in Leicester, and powers to give directions about premises, events, and places), and the only restriction on gatherings was for more than 30 people, reduced to six on 14 September 2020 (dubbed the ‘rule of six’), again enforced by non-imprisonable offences and FPNs.
Subsequent lockdown measures
After a short-lived initial attempt to divide the country into three ‘tiers’, from 14 October 2020 (which, in effect, gradually reintroduced the ban on all indoor, then all outdoor, gatherings), a further set of national restrictions was introduced on 5 November 2020, reviving (for just under a month) the national ban on leaving (or being outside) the home, while adapting the ‘bubble’ concept to facilitate childcare arrangements.
A return to the ‘tier’ system, with some relaxations for Christmas (including more adapted ‘bubbles’, briefly styled ‘baubles’ by some), was attempted from 2 December 2020. However, after the creation of a new ‘tier 4’ on 20 December 2020 (in which people were again banned from leaving their homes), this soon collapsed back into a national lockdown on 6 January 2021, with all of England moved into that tier.
As well as various other restrictions, the measures included returns of the strict bans on movement (leaving one’s home) and on gatherings, as for the first national lockdown (albeit now with more exceptions, and more – from 8 March 2021, all – school children physically back in school).
This set of restrictions proved more long-lived than the previous set, remaining fully in force across the whole of the country for around the first quarter of the year. Again, the bans were enforced by criminal (albeit non-imprisonable) offences, subject to exceptions and defences of ‘reasonable excuse’.
The ‘road map’ or ‘steps’
To complicate things further, while the restriction on leaving home was removed entirely from 29 March 2021 (and not replaced, this time, with a ban on staying elsewhere overnight), the restrictions on gatherings were lifted only gradually, under the government’s ‘road map’, in ‘steps’, with bans on gatherings (subject to exceptions, as before):
- (in steps one and two) indoors (of any number), and outdoors (of more than six people); and
- (in step three) indoors (of more than six people), and outdoors (of more than 30 people).
Step two took effect from 12 April 2021, and step three from 17 May 2021. The Regulations were eventually revoked (removing the remaining restrictions on gatherings) on 19 July 2021 (‘freedom day’).
At various stages of the pandemic, then, and in various parts of England, it has been a criminal offence:
- to leave one’s home (without a reasonable excuse);
- to stay somewhere else overnight; and
- to ‘gather’, indoors or outdoors, with specified numbers of people, or at all.
Enforcement of these offences has been generally ‘light touch’, with police preferring to explain and persuade, rather than arrest. The availability of FPNs has meant that, even where a breach is relatively clear and even serious, it will rarely be brought to the attention of the criminal courts or be the subject of a trial.
Conversely, this preference for self-policing has meant that, perversely, those who have suffered most from lockdown measures have been those most diligent about compliance. From their perspective, the fact that others have often been lax about observing restrictions – with little or no consequences for themselves, but collectively increasing the need for restrictions to continue – is at best irritating, and at worst palpably unjust.
The government’s options on ‘gatherings’
At the time of writing, it seems distinctly likely that a return of restrictions on gatherings, or even a full lockdown (restoring the ban on leaving home) may be imposed on England. If so, then the Act provides the government with a variety of options. Based on what has been done before, in increasing order of severity, these include restoring bans on gatherings (subject to the established exceptions, including ‘bubbles’):
- indoors (of more than six people) and outdoors (of more than 30 people) (in effect, returning to ‘step three’ of the government’s ‘road map’ out of the previous lockdown);
- indoors (of any number of people) and outdoors (of more than six people) (‘step two’); or
Whether any, or all, of these restrictions on gatherings would amount to a ‘lockdown’ is perhaps a matter of semantics. Despite recurring precedents, we have not yet developed an alternative word for what is, on any view, a serious set of restrictions on our liberties. It must also be noted that the ability to meet people outside is a rather less valuable concession in an English winter than it was when we last saw it in the spring.
Restrictions on movement: what does ‘full lockdown’ mean?
Finally, we might consider whether the concept of a ‘full lockdown’ is quite as straightforward as we might assume. Perhaps June 2020’s precedent of a ban on overnight stays away from home will prove useful again, or the concept of ‘bubbles’ adapted once more to make restrictions more palatable, or the parameters of what is meant by ‘reasonable excuse’ reconsidered.
While the idea of varying restrictions based on vaccination status is controversial, ‘vaccine passports’ clearly now create a precedent for doing so. Might those adults who have been willing and able to take up the invitation to ‘get boosted now’ be allowed more ‘gatherings’ than those who have not? And what of enforcement – will non-imprisonable offences and FPNs continue to be sufficient, or might the future course of the pandemic prompt a tougher approach, at least for repeat offenders?
The need for scrutiny
Parliament, which the government has promised will be given an early vote on any new restrictions (notwithstanding the urgency provisions in the 1984 Act), will doubtless consider their merits carefully. It is a pity that, thanks to the way these provisions have been dealt with by means of secondary legislation, its scrutiny will be confined to the principles of the legislation and not the detailed drafting of these laws.
The fact that these provisions, their history, and the precedents that have been set over the last couple of years are so fiendishly complicated – even to the extent that few, even in government, seem to have a clear understanding of them, or even the difference between legal restrictions and guidance – is also unfortunate. It is no exaggeration to say that these are fundamental, historic (albeit, mercifully, temporary) changes to the relationship between the individual and the state: as such, they should be capable of understanding by all of us.