Police are totally confused by the UK’s coronavirus lockdown laws

Getty Images / Bloomberg / Contributor

Police flying drones over the Peak District, pulling over drivers to ask where they’re going, making lists of unacceptable behaviour and encouraging neighbours to report each other – it sounds like a dystopian novel, but for some Brits that’s life under the Covid-19 lockdown. And it’s sparked criticism of the police, with some forces deemed too enthusiastic with their enforcement of public health rules.

Last week, prime minister Boris Johnson announced the UK’s lockdown, asking people to only leave the house for shopping once a week, to exercise once a day, and to only travel to go to jobs in key industries. If people don’t they can be hit with a £60 fine – that’s reduced to £30 if it’s paid within 14 days. There was a problem, though: Johnson’s advice didn’t match with the soon-to-be-passed legislation.

For example, Johnson limits exercise to once a day; the legislation merely allows exercise as a “reasonable excuse” to be outside. And, the legislation doesn’t mention travelling for exercise, such as driving to a park, nor did Johnson in his speech; however, the Department for Environment later advised people should use local parks, rather than travel unnecessarily. Who should we follow – the PM, the police, or the people running parks?

“The prime minister began the ‘lockdown’ with an address to the nation last Monday, in which he told people they could only go out for certain purposes,” says Raphael Hogarth, an associate at the Institute for Government and visiting lecturer at City Law School. “But when actual laws and police powers came into force a few days later, they were slightly more permissive: people could go out with any ‘reasonable excuse’. I think the root of the confusion is that some police forces have tried to enforce the government’s guidance, when they should be enforcing the law.”

Criticism of how the lockdown is being policed came to a head this week, amid reports of officers pulling over drivers and flying drones over park to spot ramblers, with a former supreme court judge saying the eager enforcement action was akin to a “a police state.” However, many countries have imposed stricter lockdowns and limits on what people can do during the time of the novel coronavirus. In Hungary, for instance, powers have been granted that allow people who have been found spreading false information or acting in ways that could damage measures introduced to fight Covid-19 to be failed for up to five years.

Back in the UK, The Guardian reported that the National Police Chiefs’ Council (NPCC) was writing new guidance warning forces about overreaching their enforcement powers; the NPCC refuted that, saying it was “adapting as we go forward.” The guidance from the College of Policing tracks closely to the legislation, however, suggesting some police forces were following the PM’s directions rather than the law.

While the gap between the PM’s advice and the letter of the law has sparked confusion, the legislation’s broad language is by design and not an error. “Broad discretionary powers are a feature, rather than a glitch, of emergency powers,” says Alan Greene, a senior lecturer at Birmingham Law School. “The idea is that if rules are too detailed or narrowly defined, they may hamper a swift-decisive response by those on the frontlines.”

But that leaves such laws open to abuse, Greene notes. “The law, rather [than] checking and limiting power, only serves to facilitate it,” he says. “Instead, we must simply trust that the powers will be exercised fairly and consistently.”

And while so far these enforcement incidents appear to be merely annoying to would-be ramblers and those bored enough to drive aimlessly, there are plenty of examples of loose laws being used unevenly against specific communities or groups. “There is evidence, for example, that stop and search powers are used disproportionately against black people,” Greene says. “Likewise, counter-terrorist powers like Schedule 7 are used disproportionately against Asian and British Asians. It may be the case that we see a similar pattern regarding who is stopped or prosecuted for leaving their home without a ‘reasonable excuse’.”

Ensuring such lockdown powers remain temporary will help avoid abuses become the norm, while transparently tracking who is fined or stopped will reveal if the rules are applied in a discriminatory manner, he added.

The enthusiastic lockdown enforcement doesn’t surprise Kevin Blowe, coordinator at the Network for Police Monitoring. “Having monitored the expansion of police powers for a decade and seen how they have been used by police in ways that were never the stated intention of legislators, nothing surprises me anymore,” he says. “As soon as sweeping legislation was introduced, the current situation was inevitable and entirely predictable.” If you’re concerned that Derbyshire Police are flying drones over the Peak District to shame dog walkers, don’t forget that drones are used up and down the country for other policing tasks, he says.

There are some tactics that are new, notably the introduction of specific reporting forms for the public to report breaches of the lockdown – and as important as social distancing is to public health, that’s not what anyone needs right now. “Urging frightened and anxious people to denounce their neighbours is entirely the wrong approach,” Blowe says. “There is an urgent need to develop a public consensus on physical distancing and that means strengthening our community ties and solidarity, not undermining them.”

While some of the people stopped by police appear to have needed a reminder of the severity of this pandemic – one man drove 200 miles to buy windows with his wife in the boot; another was on his way to buy weed, Reuters reports – the more extreme enforcement cases making headlines could undermine police work, during the lockdown and beyond.

“The watchword of the police in this country is ‘policing by consent’, an idea which goes back to Sir Robert Peel in the 19th century,” Hogarth explains. “It means above all that the police try wherever possible to get people to comply with the law through explanation and encouragement, rather than force, and recognise that they need to maintain the public’s respect and approval for this to work. If public respect falters, all policing gets harder.”

Policing by consent is easier if everyone shows common sense during the lockdown – police and the public. “Common sense might seem like a vacuous idea, but there are few concepts more important to the law,” Hogarth says. “Ultimately, it’s the yardstick which every individual, police officer and judge will have to use when answering the question: is this a reasonable excuse for going out?” If it’s not, stay inside. And if you’re policing, make sure you’re not edging into dystopia – and know the actual legislation – before hassling someone for taking a perfectly legal walk in the park.

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