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School of Law

Conflating "Guidance" and "Rules" - Restrictions on "Exercise" during the Jan 21 Covid Lockdown

From the 6 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”.

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Author: Rudi Fortson QC, Visiting Professor of Law, Queen Mary University of London; Barrister at 25 Bedford Row, London. Originally published on 11 January 2021 on rudiforston4law.co.uk.

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 Two women, who were fined £200 each when they drove five miles for a walk, have had their fixed penalties withdrawn (11 Jan 21).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” (source). 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.