What did the lockdown rules say when Dominic Cummings travelled to Durham?
The Prime Minister’s chief political adviser, Dominic Cummings, has said that he followed the government’s coronavirus guidance when he and his family relocated to County Durham at the end of March.
“I believe that in all circumstances I behaved reasonably and legally,” Mr Cummings said in his public statement on 25 May. The Chancellor of the Duchy of Lancaster, Michael Gove, said on BBC Breakfast on 26 May: “It’s clear that Dominic didn’t break the guidelines.”
We have looked at what Mr Cummings said, with reference to what the guidance said at the time. The guidelines accepted that parents in exceptional circumstances would not be able to follow all the rules, but it is not clear whether this applied to Mr Cummings. Nor did he fully explore the alternatives that might have allowed him to stay in London, which the rules required.
It’s also important to remember that the law enforcing the lockdown and the government guidance around the lockdown are not exactly the same. The law required that people should have a “reasonable excuse” for leaving their home. This article primarily looks at the guidance, but we’ve included a short section at the end of this article to explain what the law said about the lockdown rules.
Returning to work after visiting his ill wife at home
According to his public statement on Monday 25 May, while he was at work on 27 March, Mr Cummings received a call from his wife. “She suddenly felt badly ill,” he said. “She had vomited and felt like she might pass out.” He reported going straight home to visit her, then returning to work in the afternoon after she was feeling better.
Mr Cummings did not say whether he suspected that his wife was ill with Covid-19 during this visit home. At the time, the guidelines said that, “The most common symptoms of coronavirus (COVID-19) are recent onset of: new continuous cough and/or high temperature”. They did not mention vomiting.
Guidance from Public Health England said that if someone in a household has coronavirus symptoms, “all other household members who remain well must stay at home and not leave the house for 14 days. The 14-day period starts from the day when the first person in the house became ill”. It adds, “You and all household members should remain at home. Do not go to work.”
That evening, after Mr Cummings had returned home from work again, he says that he discussed the situation with his wife. “She might have Covid, though she did not have a cough or a fever,” he said in his statement. “I thought there was a distinct probability that I had already caught the disease.”
Driving to Durham for the option of childcare
In his statement, Mr Cummings described his decision to move his family to County Durham on the evening of 27 March, instead of self-isolating at home in London. In Durham, he said, his nieces would be available to look after his four-year-old son, in the event that he and his wife became too ill to manage.
“There was nobody in London that we could reasonably ask to look after our child and expose themselves to Covid,” Mr Cummings said. He added, “The regulations make clear, I believe, that risks to the health of a small child were an exceptional situation, and I had a way of dealing with this that minimised risk to others.”
At the time, the government guidance on travel said that people should “avoid travelling unless it is essential” and specifically stated that “Essential travel does not include visits to second homes, camp sites, caravan parks or similar, whether for isolation purposes or holidays. People should remain in their primary residence.”
The law governing the lockdown also specifically allowed people to leave their homes “to provide care or assistance, including relevant personal care... to a vulnerable person, or to provide emergency assistance”. It therefore appears that a member of Mr Cummings’s family would have been allowed to travel to London to help them in an emergency under these rules.
It is true that the PHE guidelines for households with possible coronavirus infections on 27 March told people that “If you are living with children” you should “Keep following this advice to the best of your ability, however, we are aware that not all these measures [about self-isolating] will be possible…” It added that while children may be less affected by Covid-19, it ”is nevertheless important to do your best to follow this guidance.”
This caveat does not specifically refer to the instruction to “stay at home”. Rather it appears to relate to all the guidance on the page, which also includes advice such as cleaning frequently touched surfaces, separating personal waste items in the rubbish, and keeping 2m away from vulnerable individuals in the household.
In order to make it possible to stay at home for 14 days, one of the “main messages” of the PHE self-isolation guidelines was for households with a suspected case of Covid-19 to “plan ahead and ask others for help to ensure that you can successfully stay at home and consider what can be done for vulnerable people in the household”. They added that people should also, “ask your employer, friends and family to help you to get the things you need to stay at home”.
When asked by a journalist if he had asked for help locally in London, Mr Cummings said that he hadn’t. “I don't think it would be reasonable for me to ask some friend to come and expose themselves to a deadly disease when a 17 year-old niece has already volunteered to do it for me,” he said.
In answer to another journalist’s question, Mr Cummings also mentioned the comments of the Deputy Chief Medical Officer, Dr Jenny Harries. He said that, “If you've got a child that is four years old, and neither of you can look after him, the guidance doesn't say you've just got to sit there.”
This appears to be a reference to the government press briefing on 24 March, when Dr Harries was asked, “Imagine you’ve got a two-year-old who is healthy and both parents, or an only parent gets ill. What is meant to happen to that child?”
In response she said, “We cannot individually cover every single scenario, whether it be in the workplace or in the family, so it’s back to applying the principles… A small child clearly is a vulnerable individual, so in this case, although we are encouraging everybody to stay in their own households - that’s the unit, with the same risk exposure - clearly if you have adults who are unable to look after a small child, that is an exceptional circumstance, and if the individuals do not have access to care support - formal care support - or to family, they will be able to work through their local authority hubs.”
Dr Harries and the journalist were both talking about a situation in which the parents of a child are already too ill to look after them—not a situation like the one Mr Cummings experienced, where he and his wife were worried that they might become too ill in the future.
In her comment, Dr Harries does seem to agree that it is reasonable to ask your family for help if you are too ill to look after your child, but we have not seen any guidance about whether people were allowed to travel to their families, or how far they were allowed to go, for that help.
PHE’s social distancing guidelines at the time said that if you are reducing social contacts you should, “Ask family, friends and neighbours to support you and use online services. If this is not possible, then the public sector, business, charities, and the general public are gearing up to help those advised to stay at home.” This appears to suggest that self-isolating people were supposed to get help from their families at home, rather than travelling to them.
Driving to Barnard Castle
Mr Cummings said that he drove with his wife and son to the outskirts of Barnard Castle town on 12 April “to see if I could drive safely”. According to his statement, this was two journeys of roughly 30 minutes, in order to prepare for a longer journey back to London, so that he could return to work. He said that the family also stopped briefly by some woods on the way home, as a toilet break for his son.
On 12 April, the government’s lockdown rules said that people should only leave their house for essential shopping, a medical need, “one form of exercise per day” or “travelling for work purposes, but only where you cannot work from home”.
The lockdown rules at the time probably would not have entitled him to drive for half an hour in order to take exercise. In answer to the question, “Can I drive to a national park or other green space to walk?” the rules said, “We advise you to stay local and use open spaces near to your home where possible – do not travel unnecessarily.”
The National Police Chiefs’ Council (NPCC) published guidance in April, based on advice from the Crown Prosecution Service (CPS), which said that driving to the countryside for exercise was allowed, but only if “far more time is spent walking than driving”. It specifically says that driving “for a prolonged period with only brief exercise” was not likely to be a reasonable excuse. According to Mr Cummings’ statement, when they reached Barnard Castle, they “walked ten to 15 metres to the river bank nearby” and “sat there for about 15 minutes”.
The lockdown rules also said that “employers and employees should discuss their working arrangements, and employers should take every possible step to facilitate their employees working from home.”
Mr Cummings did not say whether he had discussed the possibility of working from home with his employer.
Are other people allowed to do what Mr Cummings did?
In light of the uncertainty prompted by the debate around Mr Cummings’s actions, we asked both the Department of Health and Social Care and the Cabinet Office a series of questions about what the guidance allows. (You can read the questions in full in our article on essential travel).
Specifically we asked whether households (with or without symptoms) are allowed to relocate in order to allow for possible future childcare needs.
Neither department directly answered our questions, directing us instead to the existing guidance on the government website.
The law vs. the guidance
As we’ve already said, the law covering travel during lockdown and the government guidance are not the same thing.
The primary law that applies to travel outside the home in England during the lockdown period is the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, and particularly section 6. These regulations came into force on 26 March, the day before Mr Cummings says he made the journey to Durham.
Section 6 of the regulations said at the time that “During the emergency period, no person may leave the place where they are living without reasonable excuse.”
It then lists a number of things that would count as “reasonable excuses”. The only one that could apply in Mr. Cummings’s case is “to move house where reasonably necessary”. This may simply refer to a permanent change of residence (the common use of “moving house”), but the CPS guidance published by the NPCC in April suggests it could also be interpreted as allowing temporary relocations for a period of days, for example “to allow a ‘cooling-off’ following arguments at home”. The CPS guidance does not specifically mention childcare.
The list is also not exhaustive, so it is possible for someone to have a reasonable excuse that is not listed.
This leaves the question of what counts as a “reasonable excuse”, or a “reasonably necessary” house move, somewhat ambiguous. Ultimately, it would be up to a court to decide whether an individual excuse was a reasonable one. (This could be tested if an individual chose to contest a fixed penalty notice that they were issued under the regulations.)
The government guidance around the lockdown is more extensive than the law (and in some cases, more restrictive). It’s possible that a court might take this guidance into account when deciding what counted as reasonable, but the guidance itself does not form part of the law.