Boris Johnson’s arguments fall down in several key ways. A refresher on what the law and guidelines were at that time.
First published: January 2022.
Prime Minister Boris Johnson has admitted that a group of people gathered in the garden of 10 Downing Street on May 20, 2020 while the UK was in a national lockdown. The admission follows widespread outrage over a leaked email that appeared to invite staff to “bring your own booze” and socialise at a time when people were not allowed to meet their friends or family outside their household. However, Johnson continues to insist that the event “could be said technically to fall within the guidance”.
An inquiry is underway into what happened that day but, in the meantime, a refresher on what the law and guidelines were at that time is in order. The UK has endured many changes to legislation in the two years of the pandemic so it can be difficult to remember what was allowed when. If the prime minister or his inner circle broke the law, it clearly raises the stakes in this row even higher.
Were work events allowed?
Johnson’s main argument in explaining what happened on May 20 is that he considered the garden gathering a “work event”. The law at the time placed quite severe restrictions on “public gatherings”. Work meetings were listed under this section and were only allowed if they were “essential”. However, as 10 Downing Street is not a public space, so the restrictions about work meetings under these regulations do not apply.
The regulations also ordered the closure of most high-street businesses and placed substantial restrictions on others – which would mean work events could not happen in these places. Again, however, these restrictions did not apply to 10 Downing Street.
So what rules did apply to 10 Downing Street? Ordinarily, the law will define what people are not allowed to do, rather than what people are allowed to do. A practical reason for this is because what people are not allowed to do is usually a smaller category than what people are allowed to do. The breadth of the pandemic restrictions in the first lockdown flipped this on its head. It became an offence for people to leave their home without a reasonable excuse and a non-exhaustive list of what constituted a reasonable excuse had to be produced.
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One excuse expressly mentioned was: “to travel for the purposes of 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”.
As Johnson lives in 10 Downing Street, these restrictions would not apply to him. But they could apply to others who travelled to 10 Downing Street expressly for the gathering. While they may claim that this constituted “travel for the purposes of work”, a leaked email which appears to show people being invited to the gathering states that the event was being organised to “make the most of the lovely weather” and “to have some socially distanced drinks”. It is difficult to argue that such an event was for “the purposes of work” and therefore a lawful gathering.
It should also be noted that the regulations were amended shortly after coming into effect to make it an offence to be “outside of” home without a reasonable excuse. This closed a loophole that allowed people who initially had a reasonable excuse to leave their home to stay outside of their home once this reasonable excuse no longer applied. Therefore a person who travelled to 10 Downing Street for essential work would have had a reasonable excuse but once this essential work was complete and they were in attendance at a non-essential work gathering, they would no longer have a reasonable excuse.
We, therefore, have the situation in which Boris Johnson could rely upon the fact that 10 Downing Street is his place of residence while everybody else in attendance would be relying upon the fact that it is a place of work. Johnson may also point to the fact that he did not send the email invite, but the fact that it was sent by the civil servant that runs Johnson’s private office, coupled with his admission that he “should have sent everyone back inside” suggests he did have some authority over the event.
Guidelines or laws?
In discussing this issue, Johnson generally refers to “guidelines” rather than “rules” or “laws”. From his perspective, this is understandable. Ignoring a guideline is quite another matter to breaking a law – especially for a man in his position. Let’s therefore look at what amounted to a guideline in May 2020 and what was a law.
The UK’s principal legal response to the pandemic was made under two pieces of legislation: the newly created Coronavirus Act 2020 and the Public Health (control of disease) Act 1984, which was amended to suit the needs of the pandemic.
Most of England’s lockdown restrictions were actually implemented under the Public Health (Control of Disease) Act 1984. This gives the government substantial powers to make regulations to confront the spread of infectious diseases. These regulations are legally binding, and breaching them could lead to sanctions. Indeed, on May 13, just a week before the Downing Street gathering, the government issued a statement announcing that it had increased the fines that would be issued for breaking the rules:
Guidelines, meanwhile, are not legally binding. This would include government publications and announcements on lockdown measures, which are designed to help people better understand the legally binding rules in operation.
Ideally, guidelines should not go beyond what is legally in force. But during the pandemic, many governments, not just in the UK, relied upon issuing non-legally binding advice to people on how they should conduct themselves. And it’s true that confusion can arise when there is a clash between the legally binding regulations and government guidance – both on the part of the public and the people enforcing the rules.
In January 2021, for example, two women were fined while out on a walk. They argued that they were exercising and so were acting within the law but the police claimed that the guidance in effect at the time stated that people should not travel outside of their local area for exercise. The women had driven five miles to exercise. However, this instruction to “exercise locally” was not included in the regulations. Ultimately, the women’s fines were withdrawn.
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However, Johnson’s use of the word “guidance” in the case of the gathering at Downing Street on May 20, 2020 is odd. Being outside of one’s home without a reasonable excuse was not mere guidance; it was against the law. And while Boris Johnson may claim that he himself never left home, the same argument could not be argued for attendees at the event who did not live at 10 Downing Street.
And even if, somehow, this gathering was not strictly against the laws, it is difficult to see how it was in line with government guidelines at the time. Only necessary participants should have attended meetings and, even then, they should have maintained a 2-metre distance throughout. Guidance also advised that workplaces should reduce the number of contacts a person has by using “fixed teams” or “partnering” up with people. It is therefore almost impossible to see how an invitation to a work event circulated to 100 people aligned with these criteria.
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— AUTHOR —
▫ Dr Alan Greene, Reader in Constitutional Law and Human Rights, University of Birmingham.
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- Text: This piece was originally published in The Conversation and re-published in PMP Magazine on 13 January 2022. | The author writes in a personal capacity.
- Cover: Flickr/Number 10 – Simon Dawson. - Boris Johnson. (Licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.)