The Government’s response to COVID-19: human rights implications Contents

3The Lockdown Regulations

29.The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 imposed the most wide-ranging restrictions on individual liberties, affecting the greatest number of people, since the Defence Regulations made during the Second World War. It has been reported that the Health Secretary referred to the lockdown regulations as ‘Napoleonic’ as they reversed the usual presumption that people are free to do what they like unless the law prohibits it; in lockdown people would be forbidden from doing anything not explicitly mentioned in the legislation.24 Lord Justice Hikenbottom has described the regulations as “possibly the most restrictive regime on the public life of persons and businesses ever”.25

30.The lockdown regulations impose swingeing restrictions on everyday life, potentially interfering with a number of human rights as protected by the Human Rights Act 1998. This includes:

a)Article 6 (the right to a fair trial): Courts have been shut or running at reduced capacity during the lockdown. Many hearings have also taken place by video conferencing rather than in person. This has severely limited access to justice, with an increasing number of outstanding cases, and potentially impacted the fairness of hearings where courts have had to adapt in a short period to remote hearings.26

b)Article 8 (the right to respect for private and family life): The lockdown has severely limited social interactions including between families. It is difficult to imagine, save for imprisonment, a more stringent limit on family and private life than preventing gatherings of 2 or more people in private dwellings and public places.

c)Article 9 (freedom of religion): Almost all communal religious activity has been prohibited or restricted during the lockdown. At the time of writing there has been some limited communal worship permitted however the local lockdowns in, for example, the North of England have again in effect banned communal religious activities.

d)Article 11 (freedom of association): The right to protest has not been included as a listed ‘reasonable excuse’ in any of the rules prohibiting gatherings. This caused significant confusion during the Black Lives Matter protests in June.

e)Article 1 of Protocol 1 (the right to peaceful enjoyment of property): All ‘non-essential’ businesses were forced to close from the end of March until mid-May when the prohibitions were progressively lifted. Significant restrictions still remain and will do so indefinitely, such as requirements for customers to wear facemasks. Local authorities have been given powers to close businesses or categories of businesses without warning. The full impact on businesses is still to be seen, however it is clear that the lockdown has resulted in large-scale reduction in employment levels and many businesses have shut down permanently.27

31.The Regulations were made under of the Public Health (Control of Disease) Act 1984. This was despite provision for regulations to be made under the Coronavirus Act 2020 which was passed using emergency procedures in order to give the government powers in relation to controlling and responding to the outbreak.

32.Initially, the Secretary of State for Health and Social Care was mandated to review the need for restrictions and requirements imposed by the Regulations at least once every 21 days; this was later extended to 28 days.28 As soon as the restrictions or requirements are no longer necessary, the Secretary of State must publish a direction terminating that restriction or requirement.29 No such directions have been published as all of the changes have been brought in by new sets of regulations.30

33.From July onwards a number of ‘local lockdown’ regulations have also come into force, adding additional restrictions in particular areas. It appears that both the lockdown itself, and the government’s method of imposing it through emergency regulations, is likely to continue indefinitely, subject to an effective Covid-19 vaccine being developed and distributed. It is therefore important that the Government learns from previous lockdowns and ensures that lockdowns only interfere with human rights to the minimum extent necessary. It is also vitally important that the Government does not discriminate unlawfully in relation to lockdown measures. As such, any lockdown impacts that, for example, particularly affect Eid or particularly affect Leicester, must be evidence based, necessary and proportionate—this includes consideration of what lesser alternatives could achieve the Government’s aims or could alleviate the negative impact on certain groups.

34.The national lockdown regulations which are the focus of this chapter apply to everyone in England (there are separate regulations for each of Northern Ireland, Scotland and Wales). The local regulations apply to defined areas of England which are considered to be at particular risk of an outbreak of Covid-19.

35.There have also been related regulations mandating the wearing of face coverings31 and requiring32 people who people arriving in England from outside the ‘common travel area’33 to self-isolate for 14 days in conditions which are significantly stricter than the national and local lockdown regulations.34 If they are to respect the right to liberty and the right to family and private life, such restrictions must be sufficiently proportionate bearing in mind the types of risk posed by different travellers and the severity of the measures imposed on certain individuals.

36.It is difficult to do justice to the large numbers of human rights issues which have arisen. In broad terms, interferences can be justified if they are proportionate means of protecting public health.35 However, the devil has been in the detail, and there are concerns that the way in which the Government has legislated and communicated those regulations may itself have implications for human rights.

The England-wide lockdown regulations

37.The restrictions and requirements during the ‘emergency period’36 imposed by the lockdown regulations made on 26 March, which have subsequently been revoked and replaced, included:

38.The list of “reasonable excuses” in Regulation 6 (restrictions on movement) was not exhaustive. Any person leaving their place of residence for a reason not listed above was required to rely on the defence of having an unlisted “reasonable excuse”. This inevitably created some confusion.

39.Unlike Regulation 6, the list of exemptions in Regulation 7 (restrictions on gatherings) was exhaustive. However, the ‘offences and penalties’ regulation (Regulation 9) provided that an offence could only be committed for contravening a requirement in Regulation 7 if a person did not have a “reasonable excuse”–yet in relation to Regulation 7 there was no exemption or defence of reasonable excuse.

40.The national lockdown regulations were subsequently amended a number of times and then replaced by new regulations:

The local lockdown regulations

41.At the time of writing there have been three sets of local lockdown regulations, affecting Leicester41 (from 4 July), Blackburn with Darwen and Bradford (from 1 August)42 and parts of the North of England including Greater Manchester (from 5 August).43 The local lockdown regulations have re-imposed restrictions which had been a feature of the first few months of the national lockdown, such as closing non-essential businesses, restricting movement and gatherings.

Ambiguity and mixed messaging

42.There is a requirement under Article 7 ECHR,44 reflected in the common law principle of legality that a criminal offence must be both foreseeable and accessible, meaning an individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him or her liable.45 It is therefore essential that criminal offences are (a) clear in their wording and (b) clearly and consistently communicated so that citizens can understand what behaviour puts them at risk of criminal sanctions. Importantly, any enforcement guidance should only reflect what is provided for in the law–it should not seek to expand upon what is unlawful beyond what is unlawful on the face of the law.

43.The communication challenge is particularly acute where laws are wide-ranging, introduced at the same time as they come into force, change substantively every few weeks and can be overlaid by stricter local restrictions. Although we recognise the challenge involved in responding to Covid-19, we believe the government could have done much better in this regard.

44.Each set of regulations has been accompanied by government ‘guidance’ which has been published online. This has been supplemented, and sometimes preceded, by ministerial statements and interviews. The communications of the guidance and laws has at times been confusing leading to widespread misunderstanding as to what people are and are not permitted to do. There have been a number of causes of this, including (i) guidance usually being stricter than restrictions imposed by accompanying legal regulations, (ii) regulations being made and published a substantial time after a new lockdown had been announced,46 (iii) regulations being widely and often ambiguously worded and (iv) ministers not being clear as to whether they were stating activities were illegal or simply advising against them.

Discrepancy between guidance and regulations

45.The Prime Minister’s statement of 23 March 2020 referred only to four “very limited purposes” which were stated to be “the only reasons you should leave your home”. Those reasons were later expanded upon on the website by a number of ‘frequently asked questions’. However, the regulations which came into force three days later provided a list of “reasonable excuses” for which people were legally permitted to leave the house. Not only was this list non-exhaustive, but it also included reasons which were not mentioned in the Government guidance, such as to access social services, for children of two parents who live apart to travel between homes and to fulfil a legal obligation.

46.The Government guidance and regulations underpinning it have often been different in material respects. One key example were the rules on how often individuals could take exercise outside of their homes. This was an important question for tens of millions of people. The guidance stated that “you can [ … ] still go outside once a day for a walk, run, cycle” (original emphasis in guidance)47 and “you can still go to the park for outdoor exercise once a day”. The regulations for England (as well as Northern Ireland48 and Scotland49) allowed for a person to leave the house for a “reasonable excuse”, which explicitly includes for taking exercise with no limit on the number of times a person can take exercise.50 The guidance issued in May after the lockdown rules were amended referred to being able to “exercise outdoors as often as you wish” as something which people could do but could not before, although there was never a legal prohibition in England against exercising more than once per day.

Restrictions announced before legislation in force

47.On 23 March, 3 days before the national lockdown regulations came into force, the Prime Minister said that from “this evening” he was giving “the British people a very simple instruction–you must stay at home”, that people “will be allowed to leave their home” only for very limited purposes and that “if you don’t follow the rules police will have powers to enforce them”. This generated a significant risk of Article 7 breaches if enforcement occurred prior to the laws being in place.

Lack of clarity from ministers

48.Ministers sometimes gave public statements in response to questions from the media about the rules which seemed to blur advice or guidance with legal requirements. On 31 March, the Secretary of State for Transport, Grant Shapps said on the Today Programme “People know the rules that have been set. Try and shop just once a week—just, you know, just do the essentials not everything else.” There was, however, no guidance or regulation which restricts the number of times a person may shop. The statement was later corrected by a spokesman for the Prime Minister.51 On the morning after the Prime Minister’s announcement on 10 May that the lockdown regulations were to be relaxed (but before the regulations were amended), the Foreign Secretary Dominic Raab told the Today programme that someone could meet both their parents at the same time if they are 2m apart.52 This was later contradicted by a Government statement.

Difference between parts of the UK

49.The restrictions imposed by the national lockdown regulations have diverged significantly in different parts of the United Kingdom. For example, the requirement in law to impose social distancing applies in Wales but not England. It is notable that in the Crown Prosecution Service’s review of prosecutions under the Regulations in England and Wales, errors found “usually involved Welsh regulations being applied in England or vice versa” which suggests there has been confusion amongst police leading to wrongful charges being brought.53

Public understanding

50.Although it might be expected that as the public become more used to the lockdown regime public understanding would increase, it appears that the opposite has been the case. University College London reported at the end of July that under half (45%) of people in England report having a ‘broad understanding’ of the current lockdown rules, compared to 90% across the UK during the strict lockdown period.54 A factor in this is likely to be the very regular changes to regulations.

51.As can be seen in the Annex, there have been over 25 variations in the lockdown regulations since March, an average of a new set of regulations each week. Whilst the Committee understands that the coronavirus pandemic requires regular changes to guidance and law, more can be done to make those laws clear and accessible. For example, whilst the guidance on the website is clearly laid out, it is voluminous and does not make clear what the current law is (as opposed to guidance), which set of lockdown regulations are the most up to date, or how an individual can navigate the complex changes to understand how the law affects them. It is also not always clear what is meant by “the rules” as the terms seems to imply the law but is often used to mean guidance—it would be preferable not to blur these terms and instead to be clear about the law.

52.It is important that there is clarity for the public in relation to any criminal laws, and particularly laws relating to the lockdown. Information must be accessible to disabled people, especially those with cognitive impairments.

53.More care must be taken by the Government to distinguish between advice, guidance and the law, in media announcements as well as in official online sources. There must be certainty—for Government, the public as well as lawyers and the police–as to what is prohibited by the criminal law. In particular, more must be done to make the up to date regulations themselves (not only guidance) clearly accessible online, particularly as the law has changed, on average, once a week. It ought to be straightforward for a member of the public to find out what the current criminal law is, nationally and in their local area, without having to trawl through multiple sets of confusingly named regulations.

Policing and prosecution issues

54.A number of prominent incidents were reported in the first weeks of the lockdown, in which police forces confused guidance and law, attempted to enforce aspects of the guidance which were not included in the accompanying regulations, and even attempted to enforce ‘rules’ which were contained in neither guidance or law. It is possible that this was an inevitable result of the problems of messaging and consistency identified above, and/or that it arose from the fact that the police were given a national public health enforcement role which was both unexpected and novel.

55.For example, at the outset of the national lockdown, a number of police forces appeared to believe the lockdown regulations prevented non-essential travel, despite this not forming part either of the guidance or the Regulations themselves. Cumbria Police tweeted on 30 March: “Non-essential reasons for travel, Pitlochry to Wakefield via Cumbria to pick up a puppy. One of many stop checks this morning to check the necessity of travel.”55 On 1 April, Glossop Police issued guidance on their Facebook page stating that “we have all been instructed to avoid all UNNECESSARY TRAVEL” and are “entitled to exercise once daily” (there was no mention of whether this applied to the home or outside or both). There was, however, no restriction requiring only essential travel in either the Government guidance or the Regulations. The police guidance was removed later in the day. A number of police forces set up roadblocks to question motorists as to whether their journey was “essential”.56 The Derbyshire Police force defended its use of drones to highlight people exercising away from their homes in the Peak District by saying that the “emergency laws were unclear”.57

56.The National Police Chief’s Council (‘NPCC’) and the College of Policing (‘CoP’) assisted by producing guidance. For example, in the early days of the national lockdown, on 31 March, the guidance was updated seemingly in response to reported concerns over police enforcement to make clear “we don’t want the public sanctioned for travelling a reasonable distance to exercise. Road checks on every vehicle is equally disproportionate”. The NPCC and CoP guidance played an important role, particularly in the early weeks of the lockdown, in providing timely updates to police where complex changes to the lockdown regime were instituted with almost no warning.

57.It is in the nature of a pandemic that outbreaks need to be contained quickly and emergency regulations are the inevitable result. Nonetheless, it is imperative that Government provide sufficient warning of changes to the law, and coordinate with appropriate bodies, so that police forces and bodies such as the NPCC and CoP have time to understand and explain those changes.58

Use of Fixed Penalty Notices

58.The Committee has had significant concerns about the Fixed Penalty Notices (‘FPNs’) given out under the lockdown regulations. The NPCC has reported on FPNs given from 27 March to 25 May 17,039 FPNs were issued across England and Wales.59 Young men received the biggest proportion of FPNs by far. The report also showed that black, Asian and minority ethnic people were issued with an FPN at a rate of 1.6 times higher than white people, which suggests a disproportionate approach to enforcement and the issuing of FPNs to black, Asian and minority ethnic people. There appears to have been a slight decrease in the number of FPNs issued in the later part of that period. On 28 August a new FPN of £10,000 was introduced for organising raves or certain gatherings of more than 30 people. This represents a dramatic increase in the potential penalty for a person found to be breaching a lockdown rule. At the time of writing it is unclear whether such fines will also attach to the announcement to prohibit gatherings of more than 6 people (rather than 30 people), but the proportionality of such a measure will need to be very carefully scrutinised.

59.The Crown Prosecution Service (‘CPS’) has reviewed the first 200 cases prosecuted under both the lockdown regulations and the Coronavirus Act. It found that 12 of 187 prosecutions under the Regulations (6%) and all 44 of 44 prosecutions under the Coronavirus Act were wrongly charged.60 A further CPS review of those prosecutions completed in June found that all 36 prosecutions under the Coronavirus Act and 6 out of the 105 (again 6%) prosecuted under the regulations were wrongly charged.61

60.If around 6% of prosecutions under the lockdown Regulations have been wrongfully charged, it may be assumed that a significant number of FPNs have been wrongly given. Moreover, it is worth noting that the figure of 6% wrongly charged relates to cases where people have been found guilty–i.e. where both the prosecutor and the judge have agreed with the police that an offence has been committed. The figures for incorrect application of the law governing FPNs, which have fewer safeguards and do not require the involvement of a prosecutor or a judge, are likely to be even higher. We note there is no right of appeal or review against the FPNs and the vast majority of people will probably be unwilling to risk a criminal conviction by refusing to accept the FPN, which is currently the only way to challenge the FPNs under the Regulations.

61.It is unacceptable that many thousands of people are being fined in circumstances where (a) the lockdown regulations contain unclear and ambiguous language, (b) there is evidence that the police do not fully understand their powers, (c) a significant percentage of prosecutions have been shown to be wrongly charged, (d) there has been no systematic review of FPNs and (e) there is no appeal or review provided for under the Regulations.

62.There is currently no realistic way for people to challenge FPNs which can now result in fines of over £10,000 in some cases. This will invariably lead to injustice as members of the public who have been unfairly targeted with an FPN have no means of redress and police will know that their actions are unlikely to be scrutinised. The Government should introduce a means of challenging FPNs by way of administrative review or appeal.

Demonstrations and lockdown

63.The lockdown Regulations prohibited gatherings, thus effectively prohibiting all forms of protest for the very lengthy period of lockdown. It is not clear that this was a proportionate interference with Articles 10 and 11 ECHR or whether alternatives could/should have been explored to ensure that reasonable protest was allowed and facilitated safely. The police did allow and facilitate some demonstrations, however, there have been questions as to whether the prohibitions on demonstrations were impartially and proportionately policed. The key examples here relate to the Black Lives Matter movement and protests to “protect monuments”. The 28 August regulations which introduced a £10,000 fine will undoubtedly apply to some protests, particularly those organised by individuals or organisations which are not a charity, business, public authority or political body and/or where they do not comply with government social safety guidance. It is important that the rules also allow for reasonable flexibility to ensure that any interference with the right to protest under Article 10 and 11 is only to the extent necessary and proportionate. It is important that there is a consistent approach taken to preventing gatherings whether they be VE Day celebrations or Black Lives Matter protests.

24 Sick man: transcript, Tortoise Media, Matt d’Ancona, 19 June

25 Decision on permission to appeal from the decision in Dolan & Ors v Secretary of State for Health And Social Care & Anor [2020] EWHC 1786 (Admin), 4 August 2020, for the actual decision please see: Court of Appeals Order, 4 August 2020

26 See the Summary from the Justice Select Committee, Sixth Report of Session 2019–21, Coronavirus (COVID-19): The impact on courts, HC 519

28 Compare Regulation 3(2) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 and Regulation 3(2) The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020

29 See for example, Regulation 3(3) of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020

30 See Annex.

31 The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 (S.I 2020/592) and the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 (S.I 2020/791)

32 The Health Protection (Coronavirus, International Travel) (England) Regulations 2020 (S.I 2020/568)

33 The United Kingdom, the Republic of Ireland, the Isle of Man, and the Channel Islands.

34 For example, the travel quarantine regulations include a very limited, exhaustive number of reasons why someone may leave the place they are self-isolating and probably do not allow for exercise or physical recreation except where it is to “avoid injury or illness”.

35 A Judicial Review challenge to the lockdown regulations in England, which raised a number of human rights arguments amongst others, was refused permission to proceed to a substantive hearing on 6 July 2020: see Dolan & Ors v Secretary of State for Health And Social Care & Anor [2020] EWHC 1786 (Admin) (06 July 2020). At the time of writing it has been listed for a ‘rolled up’ appeal hearing against the refusal of permission in September.

36 The emergency period is defined in Reg 3 as starting when the Regulations come into force, and ending on the day and at the time specified in a direction published by the Secretary of State terminating the requirement or restriction.

37 The Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 (S.I 2020/447)

38 The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020 (S.I 2020/500)

39 Public open space is non-exhaustively defined

41 The Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020 (S.I 2020/685)

42 The Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) Regulations 2020 (S.I 2020/822)

43 Between the time of writing and consideration of this Report, the Government has announced its intention to impose further local lockdown measures in relation to Bolton and Bradford. It is highly likely that this list will grow and restrictions will continue to vary, so this list will inevitably continue to develop and change

44 Also contained in the ‘in accordance with the law’ requirement in Articles 8 (right to privacy and family life), 9 (freedom of religion), 10 (freedom of speech) and 11 (freedom of association/right to protest)

45 See e.g. Kafkaris v Cyprus [2011] ECHR 2123; Kokkinakis v. Greece Judgment of 25 May 1993 (Series A no. 260-A, p. 22) at [34]

46 For example, the North of England local lockdown was announced on 30 July but regulations underpinning it were not made until 4 August and did not come into force until 5 August.

48 The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 (S.I 2020/55)

49 The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (S.I 2020/103)

50 The Welsh regulations did specify that individuals can only take exercise “no more than once a day”, The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020, Regulation 8(2)(b)

51No 10 corrects ‘shop once a week’ comment by Shapps”, The Guardian, 31 March 2020

54 Covid-19 Social Study Results Release 17, Dr Daisy Fancourt, Dr Feifei Bu, Dr Hei Wan Mak, Prof Andrew Steptoe. The accompanying media release stated: “The general drop-off in understanding could be due to unclear messaging from the government, or a reduction in interest and engagement from people, especially with the cessation of the daily Downing Street coronavirus briefing in late June.”

55Picking up a puppy is NOT essential travel”, News & Star, 30 March 2020

58 These matters were also raised in correspondence between the Chair and the Lord Chancellor, and the Chair and the Commissioner of the Metropolitan Police

59 National Police Chief’s Council, Analysis of Coronavirus fines published, 27 July 2020

61Latest findings for CPS coronavirus review”, Crown Prosecution Service, 16 July 2020

Published: 21 September 2020