The Cummings Case: A New Defence of Understandability?
Dominic Cummings, the chief adviser of the British Prime Minister, has been reported to have broken the UK’s lockdown regulations. He has been reported to have visited other family members multiple times since the regulations came into force in order to allow other family members to care for his child due to one of his close relatives having developed symptoms of Covid-19 and him therefore likely having been exposed to it as well (Pidd, The Guardian, 24/05/2020). He also wished to self-isolate away from home (Henden, Express, 24/05/2020). Whether or not such visits could be regarded as in conformity with The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 depends on the interpretation of regulation 6(1):
During the emergency period, no person may leave or be outside of the place where they are living without reasonable excuse.
Several facts need to be given in order for a violation of reg. 6(1) to have occurred: (1) the act needs to have taken place during the emergency period, (2) the person must have been outside their primary residence, and (3) they must be outside their primary residence without reasonable excuse. Let us take the elements of this regulation in turn:
‘During the Emergency Period’
Cummings has been reported to have left his primary residence at multiple dates and all key dates of this story are summarised by the BBC as follows (BBC, 24/05/2020):
30 March: No 10 says Mr Cummings is self-isolating with coronavirus symptoms
31 March: Police in Durham are "made aware of reports that an individual had travelled from London to Durham and was present at an address in the city". Officers 'made contact with the owners of that address'. It is understood Mr Cummings travelled there between 27 and 31 March
12 April: Mr Cummings visited Barnard Castle, 30 miles from his parents' home in Durham, according to The Observer and Mirror newspapers. On Sunday, the prime minister said he was assured Mr Cummings behaved responsibly and legally either side of his 14-day self-isolation in Durham
19 April: Five days after being in London, Mr Cummings was seen again in Durham by an unnamed witness, The Observer and Mirror reported on Sunday. Downing Street says this is 'false'
Under reg. 3(1)(b) of the 2020 Regulations, the restrictions or requirements imposed by regulations may be terminated by the Secretary of State. Such termination has not happened with regards to reg. 6(1). The regulations, having taken effect before March 30th (Brown, House of Commons Library, 18/05/2020) were therefore in force and Cummings’ actions fall within the emergency period.
‘Outside of the Place Where They are Living’
Cummings’ home is in London (BBC, 24/05/2020), his family visits took place in Durham. It does not take a law degree to figure out that this requirement is met.
‘Without Reasonable Excuse’
Reg. 6(2) of the 2020 Regulations gives further guidance on what may constitute a reasonable excuse:
For the purposes of paragraph (1), a reasonable excuse includes the need—
a) 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 supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person […]
aa) to obtain money from or deposit money […]
ab) to collect goods which have been ordered from a business […]
b) to take exercise […]
ba) to visit a public open space for the purposes of open-air recreation to promote their physical or mental health or emotional wellbeing […]
c) to seek medical assistance […]
d) to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person, or to provide emergency assistance
e) to donate blood
f) to 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
g) to attend a funeral […]
ga) to visit a burial ground or garden of remembrance […]
h) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings
i) to access critical public services […]
j) 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
k) in the case of a minister of religion or worship leader, to go to their place of worship
l) certain actions in relation to the purchase, sale, letting or rental of a residential property
m) to avoid injury or illness or to escape a risk of harm
n) to use a waste or recycling centre
As long as the list of potential things covered by ‘reasonable excuse’ is, not many of them offer much assistance to Cummings. One could attempt to stretch the interpretation of reg. 6(2)(a) by arguing that Cummings’ journey was essentially the equivalent of providing his children with basic necessities as he could not be sure that he would be able to go grocery shopping, cook, etc for much longer since he might fall ill. In light of the aim of the regulations being to keep people at home (BBC, 24/05/2020), such an interpretation seems, however, unlikely at best.
Since Cummings’ child was only born in 2016 (Henden, Express, 24/05/2020), he could attempt to rely on reg. 6(2)(d) (caring for vulnerable persons). A child of such a young age may well require physical assistance with eating, washing or bathing, and potentially dressing due to its young age. All these are listed in para. 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006 and therefore come within the ambit of reg. 6(2)(d). But reg. 6(2) refers to a ‘need’ to provide such care or assistance. At the time of Cummings making the trip, he believed himself to be likely to be developing symptoms but had not actually done so. The need would therefore have arisen at a later time as it was merely a potential need at the point of the journey.
Lastly, reg. 6(2)(m) could be read very generously to include the potential harm a child could suffer by being with its potentially infected parents. Such harm may include the child receiving inadequate care due to the parents’ illness and the child suffering psychological harm from the experience. Reg. 6(2)(d) does not exclude the possibility that the ‘risk of harm’ is a risk of harm to another person, so it could potentially be of assistance to Cummings. But, once again, the regulation should be interpreted in light of its aim of keeping people home. Given that these regulations were made in the context of a pandemic which spreads easily through contact, they would be robbed of effectiveness if such a broad interpretation were adopted. Reg. 6(2)(m) is therefore unlikely to be of help to Cummings.
The Downing Street Defence of Understandability
It is important to note that reg. 6(2) only refers to things included in ‘reasonable excuse,’ but that it does not expressly exclude any other elements. The Prime Minister seems to have adopted something which is either supposed to serve as a defence to breaching reg. 6(1) or as something falling within the ambit of ‘reasonable excuse:’ understandability. Johnson said, “I think that what they did was totally understandable” (Pitas, The New York Times, 24/05/2020). Since it appears to serve as his justification for not sacking Cummings and in the absence of an apology for the actions (Mirror, 23/05/2020), it must be a defence or a reasonable excuse since the government seems to regard such behaviour as proper. The fact that the government appears to regard its understandability doctrine to have some legal roots is further supported by the Attorney General's statement that it was 'inappropriate to politicise' the issue (Davey, The News, 23/05/2020).
While reg. 6(2)’s range of reasonable excuses certainly includes excuses which many would regard as understandable reasons for leaving home in such times, they were not driven by that concern. They were driven by a concern of necessity in light of a public health issue. It would therefore be hardly inappropriate to interpret ‘understandability’ as constituting a ‘reasonable excuse.’
So what remains is that it may serve as a defence for the occurrence of actions described in reg. 6(1) without a reasonable excuse. It would be quite a novel defence and it appears to be a defence of the elite. It is doubtful whether such a defence would be open to the average person who does not have the Prime Minister defend their actions on national TV. It is more likely that the defence is non-existent in the law and merely exists in political talk. Given that the freedom of movement of people has been severely restricted under reg. 6(1), such imaginary defences which do not have any legal character should not be relied upon by senior politicians. Their behaviour is supposed to guide public behaviour. They are currently not leading by example. An apology is not that hard to deliver and it would likely do less damage than opening the door to many other families taking similar steps as the family of Cummings’ did.
Pidd, Helen. “Did Dominic Cummings Break the Law on Lockdown Rules?” The Guardian, Guardian News and Media, 24 May 2020, www.theguardian.com/politics/2020/may/24/did-dominic-cummings-break-the-law-on-lockdown-rules.
Henden, Amalie. “Dominic Cummings Wife: Who Is Mary Wakefield? How Old Is Their Child?” Express.co.uk, Express.co.uk, 24 May 2020, www.express.co.uk/news/politics/1286181/Dominic-Cummings-wife-Who-is-Mary-Wakefield-How-old-Dominic-Cummings-child-son-parents-age.
Pitas, Costas. “UK PM Johnson Says Adviser's Lockdown Drive Was Understandable.” The New York Times, The New York Times, 24 May 2020, www.nytimes.com/reuters/2020/05/24/world/europe/24reuters-health-coronavirus-britain-cummings-understandable.html.
Boyd, Milo. “Dominic Cummings Breaks Cover to Say He Doesn't Care How Lockdown Travel Looks.” Mirror, 23 May 2020, www.mirror.co.uk/news/politics/breaking-dominic-cummings-breaks-cover-22074482.
Davey, Kieran. “Fareham MP Suella Braverman Backs Dominic Cummings over 260-Mile Lockdown Trip.” The News, The News, 23 May 2020, www.portsmouth.co.uk/news/politics/fareham-mp-and-attorney-general-suella-braverman-backs-dominic-cummings-over-lockdown-trip-2863171.
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (http://www.legislation.gov.uk/uksi/2020/350/regulation/6, https://commonslibrary.parliament.uk/research-briefings/cbp-8875/)