15 January 2021

Why the overzealous policing of lockdown is a threat to us all

Allowing the police to interpret Covid-19 laws as they please has set a dangerous human rights precedent.

When is a walk essential exercise, and when is it flagrant, rule-breaking “socialisation”?

For the two Derbyshire women stopped by police at Foremark Reservoir last week, it is not an academic question but a matter of a £200 fine. And the answer, at least according to the officers who stopped them, is determined by the five miles they had driven for their walk, and the takeaway coffee cups they were carrying. The former constituted a breach of the rule to “stay local”, while the latter turned the walk into a “picnic”, which is banned.

The trouble is that none of that has been legally defined. The various pieces of Covid-19 legislation make it legal to leave the house if you have a “reasonable excuse” (not, as Metropolitan Police commissioner Cressida Dick said on the radio, an “essential” reason), with “exercise” explicitly listed as one of them. Neither picnics nor “staying local” are mentioned.

The guidance, meanwhile, does prohibit picnics, but does not define them. Considering that, under the tiered system, ministers could not decide whether a Scotch egg counted as a “substantial meal”, it seems unlikely that a cup of coffee on its own constitutes a picnic.

The guidance also instructs people not to travel outside their “local area”, but does not set a distance limit. And given that the Prime Minister himself was spotted cycling seven miles from his residence at the weekend, one can assume a certain amount of leeway is permitted.

If the aim of these rules is to reduce social contact and therefore transmission as much as possible, this flexibility is pragmatic. For people living in cities where green spaces are small and scarce, it makes sense for those who can travel a bit further afield to do so. Driving a few miles to walk around a deserted open space presents less of a risk than jogging in a nearby park crowded with local residents who have nowhere else to go.

That flexibility is difficult to enshrine in law and even harder to police consistently. Yet that is exactly what police have been asked to do. And while arguing over the distinction between law and guidance may seem facetious mid-pandemic, those in the legal profession are disturbed at how they are being used interchangeably.

“The rule of law is being seriously undermined by Covid-19 regulations,” warns Matthew Paul, a barrister from Civitas Law listed in 2019’s Legal 500.

“Guidance is not law; in most cases an individual is entitled to ignore it. But police officers are enforcing guidance as if it were law, and have turned to enforcing what they consider to be the purpose, rather than the letter of the regulations.”

It is unrealistic and unfair to demand police officers memorise every line of the rules, which have, as human rights barrister Adam Wagner pointed out this week, changed 64 times since March (more than once a week). And in fairness to Derbyshire Police, the fines given to the reservoir women have since been rescinded and a review is under way. Officers are justified in their confusion, especially when officials are prone to errors about both the law and the guidance when interviewed. (There is, for example, no mention of a time limit on exercise in either, but that hasn’t stopped ministers repeatedly mentioning the fictitious “one-hour” rule.)

But it is also deeply unjust – and against the principles of a society based on the rule of law – for the rules to be enforced arbitrarily depending on the interpretation of the officer involved.

The justice system can only operate effectively if laws are clear, as specific as possible, and fairly applied. But the tendency to over-legislate – a trend which long pre-dates the Covid-19 crisis – puts this fundamental principle at risk. In May 2019 Lord Sumption, the retired Supreme Court justice who has since become a vocal critic of the government’s approach to pandemic legislation, was so concerned about “law’s expanding empire” he made it the topic of his Reith Lectures. He charted law’s encroachment on ever more areas of modern life, with legislation brought in to curb morally dubious behaviour where once social pressure would have been the main disincentive, and warned that the rule of law “does not mean that every human problem and every moral dilemma calls for a legal solution”.

This is not to argue that people should be entirely free to behave as they please, especially not in a pandemic when everyone has a moral duty to act responsibly and reduce transmission. It is simply a question of whether the law is always the right weapon to use. Yet the government’s default strategy throughout the Covid-19 crisis has been more legislation – and more enforcement. And so the Home Secretary, Priti Patel (herself no stranger to rule-breaking) is put onstage at a Downing Street press conference to announce a tougher crackdown on lockdown breaches and unconditionally back the police.

Never mind that compliance with Covid-19 rules is impressively high at 90 per cent, even ten months into this crisis. Never mind that the main reasons for breaches seem to be practical (the failure of the government to offer adequate compensation for those self-isolating, for example, or the lack of financial support for the self-employed). And never mind that an outdoor walk with a friend (even with a coffee) is far less of a transmission risk than entering their home, and that overzealous policing of walkers is likely to encourage behaviour that is less visible but more dangerous. The government’s inability to get cases under control is, we are told, the fault of the public – and the police are the people to fix it.

That inevitably leads to the law being misapplied. Derbyshire Police intimidating walkers for carrying coffee is far from the only example – Matthew Paul points to an incident in Bridgend this week, when a woman and her husband received £60 fixed penalty notices for paying a visit to her mother in a care home seven miles away. “Compassionate visits are explicitly permitted under Welsh government guidance,” he explained, “but the officer who issued the fine applied an imaginary test of whether or not the visit was ‘essential’.”

And encouraging the police to decide what counts as a local bike ride or a compassionate visit and what is an example of flagrant lockdown-breaking sets a worrying precedent. As Lord Sumption told me, police in the Derbyshire case and elsewhere “obviously believe that it is for individual police officers, and not the law, to decide what people should be allowed to do. They have lost sight of the fact that they are not policymakers or pliant agents of the state but independent officers with a personal responsibility to apply the law and nothing but the law.”

Francis Hoar, a barrister specialising in public law who has acted in two judicial reviews of the Covid regulations, is similarly concerned by the outsized role given to the police, especially from a political standpoint.

“While the police must sometimes enforce laws that are controversial, it is highly inappropriate for them to do so while advocating the political justification behind them,” he says. “Yet this is what senior police officers have done by promoting the idea that the regulations are necessary and virtuous – even to the extent of taking part in Downing Street press conferences. This is an abuse of their duty of neutrality. The police force was founded on the ideal that officers would be ‘citizens in uniform’, not servants of the government enforcing its political objectives.”

In view of the severity of the UK’s Covid-19 crisis – nearly 50,000 new cases are still being reported a day, hospitals are overwhelmed, and the total death toll is nearing 90,000 – some may argue that police overreach is the least of our worries. But it would be a mistake to brush such concerns aside.

There are profound social justice implications if the police believe their job is not merely to enforce the law, but to write it. The police do not operate free from bias – an inquiry is currently under way into racial prejudice in policing in England and Wales, while the drug policing charity Release found that people in the highest socio-economic bracket were treated far more favourably by police for drug offences than the poor.

So can we really be confident that police officers would apply the same definition of “local” to a black man cycling five miles away from his home as they would had they encountered the Prime Minister last weekend? Or that Derbyshire Police would have rescinded the Foremark Reservoir fines if the women had not succeeded in getting media outlets to run their story?

It is for precisely this reason that laws are written with clarity and definitions in mind, so they can be applied fairly to everyone. Taking legislative shortcuts, where laws are changed overnight with no parliamentary scrutiny and left to police to interpret, runs the risk of diminishing public respect for the rule of law and reducing compliance – exactly what the government needs to avoid. But it has even more disturbing long-term implications if it sets the precedent that an individual can follow the letter of the law and still find themselves on the wrong side of it based on a definition that exists only in a police officer’s head.

As Lord Sumption warns: “If the price of controlling the virus is to become a police state like China or a surveillance society like the former East Germany, then we have to ask ourselves whether it is worth it.”