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Author: Rudi Fortson

Conflating “guidance” and “rules” – restrictions on “exercise” during the Jan 21 covid lockdown.

Conflating “guidance” and “rules” – restrictions on “exercise” during the Jan 21 covid lockdown.

From the 6th January 2021, every area in England has been placed into Tier 4.  That tier is subject to a number of restrictions which, collectively, have been styled a “lockdown”.
As was the case during the initial lockdown in March 2020, the ‘stay at home’ restriction has proved contentious.  Two women, who were fined £200 each when they drove five miles for a walk, have had their fixed penalties withdrawn (11th Jan 21).  The outcome was a foregone conclusion. Politicians, the media, certain police officers and others, repeatedly state that taking exercise “outside your local area” is “in breach of the rules”. Let us be clear. There is no such rule – at least, there is (currently) no such legal rule.
The law is set out in the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (SI 2020 No. 1374, as amended by SI 2021 No.8).  By para.1(1) of Schedule 3A, “No person who lives in the Tier 4 area may leave or be outside of the place where they are living without reasonable excuse”.  One exception is that it is “reasonably necessary for the person concerned…..to take exercise outside” (para.2(2), Schd.3A), including a “public outdoor place” (as defined by para.2(4)). The schedule imposes limits on the number of other persons (and categories of persons) that the person may take exercise with.
It is Government guidance that states (among other things) that exercise “should be limited to once per day, and you should not travel outside your local area” (link). The Guidance adds that exercise includes “but is not limited to running, cycling, walking, and swimming.  Personal training can continue one-on-one unless everyone is within the same household or support bubble”.  As for “public outdoor places”, the Guidance states that these include, “parks, beaches, countryside accessible to the public, forests; public gardens (whether or not you pay to enter them); the grounds of a heritage site; playgrounds”.
Crucially, the Guidance has not been incorporated into Schedule 3A for the purpose of the ‘exercise restriction’.  It is therefore misleading to describe current guidance, in respect of exercise, as “rules”.
Unfortunately, no guidance has been given as to what constitutes a “local area”.  The law should strive to be clear – especially when civil liberties and financial penalties are at stake.

“Mingle” and the “Rule of Six”

“Mingle” and the “Rule of Six”

On September 14, 2020, a word that is rarely seen in English legislation – “mingle” – was inserted into the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020/684) by SI 2020 No.988. The latter revised the rules relating to “gatherings” that now seek to give legislative effect to the so-called “rule of six”. But what do the expressions “mingle” and “rule of six” actually mean? See: [Link].

Regulating public health on ‘Super Saturday’

Regulating public health on ‘Super Saturday’

On the 4th July 2020 (styled by the media as “Super Saturday”) pubs, restaurants, hairdressers and cinemas were reopened in England “after a major relaxation of lockdown curbs”.  Although changes to the ‘rules’ were announced many days in advance, it was not until late afternoon on the 3rd July that the Government published two sets of regulations for England: one specific to the town of Leicester, and the other applicable to the remainder of England.  The revised regulations are very different in content and structure from those that it revoked.  An earlier posting by this commentator has been critical of the open-textured drafting of the health protection regulations. The revised regulations are open to the same criticism [see Link].
See the contributions of other commentators and academics via the ‘Responding to the Covid-19 blog‘, Queen Mary University of London, Criminal Justice Centre: [Link].

Covid 19 legal issues

Covid 19 legal issues

Many people have been very confused about what they can and cannot do under the law during ‘lock-down’.   This is hardly surprising given the open textured drafting of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (now heavily amended).  Furthermore, discussions have conflated legal rules and “guidelines”.   For my blog posting on this topic, see “Open textured legislation in the times of Covid-19: ‘reasonable excuse’ and legal certainty’” (which appears on the QMUL, Criminal Justice Centre blog) [Link].

See the contributions of other commentators and academics via the ‘Responding to the Covid-19 blog‘, Queen Mary University of London, Criminal Justice Centre: [Link].

Revising UK drug policy

Revising UK drug policy

Notwithstanding that the House of Commons Health and Social Care Committee was constrained to limit its inquiry, its short Report “Drugs policy” (First Report of Session 2019–20: 23 Oct 2019) [Link] provides further support (if such were needed) that: (i) there is “clear need for evidence-led policy on drugs”, (ii) “Holistic, non-judgemental harm reduction approaches are needed which facilitate access to services”, and (iii) (among other matters) that on-site drug checking and “Drug Consumption Rooms should be introduced on a pilot basis in areas of high need, accompanied by robust evaluation of their outcomes”.  The Committee urged the Government and other policy makers “not to shy away from the lessons from Portugal and Frankfurt, but to take a harm reduction approach and implement the recommendations set out in this report without delay” [p.25].
DCRs have long been of interest to this commentator: see [Link], noting certain legal issues that relate to them [Link].