Dominic Cummings is never far from controversy. Revelations that he and his wife made the 264-mile journey from London to Durham with their son in late March have led to calls for his resignation for breaching government guidelines and legislation on the lockdown.
It is easy to call for resignations but it is important that we take a calm and considered look at the circumstances and whether Dominic Cummings behaviour did indeed breach government guidance and legislation.
The lockdown restrictions are a huge infringement on people’s freedoms and human rights and they should be enforced fairly for everyone. We all have an interest in a sensible and proportionate approach being taken. What Cummings did may indeed have been a breach of the guidance and/or regulations but there needs to be careful thought about all cases where there these types of allegations rather than rushing to judgment.
Despite, in my view, that Dominic Cummings is an objectionable and dishonest character, we need to approach these situations with humanity and think about what we would do in similar circumstances. I would certainly want to make sure my daughter was looked after by someone I trusted if I had Covid-19 and my condition deteriorated. This was not just a matter of wanting ordinary childcare, it was quite possible that Cummings or his wife would need to be admitted to hospital or even have died.
It is also worth remembering that there is a, probably necessary, gap between: (i) what government communications say people can do; (ii) what the guidance says people can do; and (iii) what is an offence under the lockdown regulations.
Some stuff will be in goverment communications but not reflected in guidance or legislation because it is not practical to communicate all the details of the restrictions. Also, guidance should generally be guidance because it is not reasonable to make it mandatory (e.g. because there are circumstances where it is reasonable not to follow the guidance, including circumstances that the drafters know they might not envisage).
No 10 statement
No. 10 Downing Street has issued the following statement regarding the situation:
“Owing to his wife being infected with suspected coronavirus and the high likelihood that he would himself become unwell, it was essential for Dominic Cummings to ensure his young child could be properly cared for.
“His sister and nieces had volunteered to help so he went to a house near to, but separate from, his extended family in case their help was needed. His sister shopped for the family and left everything outside.
“At no stage was he or his family spoken to by the police about this matter, as is being reported.
“His actions were in line with coronavirus guidelines.“
Durham Constabulary statement
Durham Constabulary have issued the following statement regarding Cummings:
“On Tuesday, March 31, our officers were made aware of reports that an individual had travelled from London to Durham and was present at an address in the city.
Officers made contact with the owners of that address who confirmed that the individual in question was present and was self-isolating in part of the house.
In line with national policing guidance, officers explained to the family the guidelines around self-isolation and reiterated the appropriate advice around essential travel.”
What the government guidance says
This guidance for households with possible coronavirus infections was first published by the Government on 12 March 2020. The 24 March 2020 version, which seems to have been the version in force at the time of Dominic Cummings’ trip, states:
“If you live with others and you are the first in the household to have symptoms of coronavirus, then you must stay at home for 7 days, but all other household members who remain well must stay at home and not leave the house for 14 days.“
So, the starting point, based on the No.10 statement regarding what happened, is that Dominic Cummings’s wife would have been required to self-isolate for 7 days from getting symptoms and Dominic Cummings and their son will have needed to self-isolate for 14 days from that point. The guidance is different for the point from which Dominic Cummings got symptoms but it appears that he made the trip prior to having symptoms.
However, the guidance then states the following:
“If you are living with children
Keep following this advice to the best of your ability, however, we are aware that not all these measures will be possible. What we have seen so far is that children with coronavirus appear to be less severely affected. It is nevertheless important to do your best to follow this guidance.“
This guidance is vague but does allow scope for Cummings to argue that he did not breach the guidance as he followed it to the best of his ability, as explained in the No.10 statement.
What the lockdown regulations require
The lockdown regulations at the time of Cummings’ trip to Durham include an offence for anyone who during the lockdown period leaves the place where they are living without reasonable excuse. There is a non-exhaustive list of reasonable excuses, including “to avoid injury or illness or to escape a risk of harm”. Cummings may argue that he falls with this (although the word “escape” does not naturally fit his circumstances) or that he had a reasonable excuse, bearing in mind also that what he did may have been allowed under the guidance.
A court in considering the Cummings case would need to take into account human rights issues, including the right to life and family life. We should not forget that how you care for your child is a very personal decision and we should not impinge on people’s choices in this area any more than is necessary and justified (just as the police using drones to monitor people is overkill).
Need for a full investigation
We don’t know all the facts, so we need a proper investigation of all the facts under the Ministerial Code, before determining whether Cummings breached the guidance and/or the lockdown regulations and whether there was a No.10 cover-up. Labour is right that the No.10 statement raises more questions that it answers. The following questions are least need to be answered:
- Were there not alterative arrangements possible for back-up childcare in / nearer to London?
- Did Cummings, his wife and his son remain self-isolated throughout their stay in Durham?
- Why does there seem to be an inconsistency between the Durham Constabulary and No.10 statements about police speaking to the owners of the property Cummings was staying at?
- Were No.10 communications about the situation honest?
Parliamentary scrunity of the lockdown regulations might have helped Cummings
The regulations might have been clearer (and more helpful to Cummings) if there had been Parliamentary scrutiny of them. Ironically, Cummings, amongst others, is likely to have beem involved in the decision for there not to be Parliamentary scrutiny of the regulations before they were put in place. Perhaps one good thing that could come out of this affair is a greater respect for Parliamentary scrutiny from Dominic Cummings!
***UPDATE – 24 May 2020***
Allegations have emerged that Cummings was spotted back in Durham on 19 April, days after he was photographed in London having recovered from the virus, suggesting that he had made a second journey from London to Durham. He also allegedly left the home where he was staying in Durham to visit Barnard Castle, a town 30 miles away, on 12 April.
Speaking on the Andrew Marr Show, the Transport Secretary, Grant Shapps MP, said that the second trip did not take place and that Cummings had not returned to Durham since the 14 of April (when he returned to London following his stay in Durham).
Regarding the Barnard Castle trip, Boris Johnson said at today’s press briefing that Cummmings was in isolation for 14 days. Grant Shapps indicated on the Andrew Marr Show that Cummings originally went to Durham on the 27 or 28 March meaning that the period of self-isolation expired by the 12 April.
The guidance that was in place for social distancing at the time is here. This says that you should only leave the house for very limited purposes, including:
- Shopping for basic necessities, for example food and medicine, which must be as infrequent as possible.
- One form of exercise a day, for example a run, walk, or cycle – alone or with members of your household.
- Any medical need, including to donate blood, avoid or escape risk of injury or harm, or to provide care or to help a vulnerable person.
- Travelling for work purposes, but only where you cannot work from home.
The lockdown regulations include exclusions in these areas as well as a number of others. It is not clear whether Dominic Cummings trip to Barnard Castle fell into out of the exemptions in the guidance to the requirement to stay at home and/or was a reasonable excuse under the lockdown regulations. Sunday 12 April was Easter Sunday for which the Government launched a huge advertising campaign to urge people to stay at home. On 9 April, Durham constabulary put out a notice asking motorists to respect government advice and that “your daily exercise should be taken as close to your home as possible”.
A proper investigation is needed to get to the bottom of what happened and what Dominic Cummings thinks means that he did not breach the guidance or the lockdown regulations.
Omar Salem writes in a personal capacity.