Why it is now clear that Dominic Cummings should resign

When the reports first emerged of Dominic Cummings’ trip to Durham, my initial reaction was, despite my dislike for Cummings’ politics, to be sympathetic to him. He was after all a father trying to do the best thing for his family, with an ill wife and huge pressure from dealing with the Covid-19 crisis.

I wrote that we should approach these situations with humanity. 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 could even have died.

I also felt that we needed to see the full facts and that it would be much better for an independent investigation to establish what happened and what rules might have been broken, rather than having a trial by media. Unfortunately, the Prime Minister decided not to have a proper independent investigation but instead to speak to Cummings himself and then have Cummings explain the situation to the nation via a press conference in the garden of No.10 Downing Street.

Cummings’ statement in the No.10 garden revealed new information that in my view now makes his position untenable. I set out in this blog the key allegations against Cummings, whether his behaviour in each case breached the guidance or lockdown regulations at the time and why it is right that Cummings resigns or is sacked.

Return to Downing Street

Number 10 Downing Street is the headquarters and London residence of the Prime Minister of the United Kingdom.

According to Cummings, on the morning of 27 March, he went into work in Downing Street as normal but received a call from his wife later in the day saying that she felt badly ill. He says he left Downing Street shortly afterwards and returned home. After a couple of hours, Cummings said his wife felt better and “there were many critical things at work and she urged me to return in the afternoon and I did”.

Cummings says that his wife had vomited but she did not have a cough or a cold. Nonetheless, he and his wife thought that she might have Covid, so much so that they drove to Durham later that evening to ensure appropriate childcare was in place should they both succumb to Covid. Cummings wife, Mary Wakefield, is clear in the Spectator article she wrote about her illness that she thought she might have Covid-19, writing:

that evening, as I lay on the sofa, a happy thought occurred to me: if this was the virus, then my husband, who works 16-hour days as a rule, would have to come home“.

The guidance on this scenario that was in force at the time is clear:

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.

Dominic Cummings return to Downing Street was a clear breach of this guidance. Not only was it a breach of requirements that he himself was involved in telling others to comply with but his behaviour put others at risk work were working in one of the most strategically important buildings in the country, 10 Downing Street, where staff were working on the response to Coronavirus.

Journey from London to Durham

Licence

In his statement, Cummings advanced three arguments for the journey from London to Durham:

  1. He was concerned that there was no one he could “reasonably ask for childcare” if both he and his wife were so ill that they were not able to take care of their child.
  2. That he might be able to get a Covid test and return to work if he tested negative (presumably leaving his wife and son in Durham).
  3. That he was concerned about the atmosphere around his London home, with people coming to his house shouting threats and posts on social media encouraging attacks. He was also worried that given the severity of this emergency, this situation would get worse and about the possibility of leaving his wife and child at home all day and into the night while he worked in No.10.

The applicable guidance at the time said:

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, but needed to travel from London to Durham for childcare purposes. However, Jess Phillips MP has tweeted that the exemption was “put in because of domestic and child abuse in the home. To say to people who felt their children were not safe could leave. It was not because of childcare crisis, it might lead to confusion but that was what it was for”. This puts into sharp relief the question of whether Dominic Cummings, especially given his position and the scope for him acting out of line with the guidance to undermine the Government’s public health message, should have sought advice on the guidance.

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.

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).

Nonetheless, 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 been 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 Cummings.

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). On the other hand, Cummings’ trip presented a potential threat to others, including the risk of spreading Covid-19 to a less impacted part of the country, not least as a result of his son being admitted to hospital (accompanied by Cummings’ wife).

In relation to Cumming’s argument about being motivated by the possibility of getting a Covid-19 test and being able to return to work if he tested negative, this seems clearly to be an argument based on the exceptionalism of his position that is unlikely to be a “reasonable excuse” under the lockdown regulations, not least as it had not been endorsed by the Prime Minister or, it appears, anyone at No.10.

In relation to Cummings’ safety concerns, the lockdown regulations allow you to leave the place where you live to “to avoid injury or illness or to escape a risk of harm”. It is questionable whether there was a sufficient level of risk to justify Cummings’ move to Durham. It does not appear that Cummings consulted the police on the issue of moving to Durham temporarily or sought advice on whether they thought this would be permissible under the lockdown regulations, which surely would have been a wise thing to do.

Trip to Barnard Castle

Copyright David Dixon and licensed for reuse under this Creative Commons Licence.

On Sunday 12 April, Easter Sunday, Cummings drove with his wife and son to Barnard Castle, a beauty spot about 30 miles away from where they were staying, and back. It also was his wife’s birthday that day. This is Cummings’ account of the trip:

On Sunday 12 April, 15 days after I had first displayed symptoms, I decided to return to work. My wife was very worried, particularly given my eyesight seemed to have been affected by the disease. She didn’t want to risk a nearly 300-mile drive with our child, given how ill I had been. We agreed that we should go for a short drive to see if I could drive safely. We drove for roughly half an hour and ended up on the outskirts of Barnard Castle town. We did not visit the castle. We did not walk around the town. We parked by a river. My wife and I discussed the situation. We agreed that I could drive safely, we should turn around, go home. I felt a bit sick. We walked about 10 to 15 metres from the car to the river bank nearby. We sat there for about 15 minutes. We had no interactions with anybody. I felt better. We returned the car. An elderly gentleman walking nearby appeared to recognise me. My wife wished him Happy Easter from a distance, but we had no other interaction.

This explanation seems somewhat bizarre. It does not seem to be normal to make a 60 mile round trip to test one’s eyesight. Surely, if Cummings was concerned about his eyesight the first thing he should have done was get medical advice. I find it hard to imagine that a doctor would have recommended the course of action he took. Further, it may have been a safety risk, both to Cummings, his family and others, for him to have driven in the condition he was in (especially given than he said he felt sick during the drive). There is a question whether Cummings briefed road safety legislation (such as the Road Safety Act 1988) the Highway Code.

Given the inappropriateness and possible riskiness of the trip to Barnard Castle, it is hard to imagine that it would amount to a “reasonable excuse” under the lockdown regulations. The fact that the trip, to a local beauty spot, took place on Cummings’ wife’s birthday also makes Cummings already strange story seem even more suspicious.

One rule for the few, another for the many

I believe that Dominic Cummings was trying to do what was best for his family and for the country in dealing with this issue. Unfortunately, this has been accompanied by a belief that different rules apply to him from the rest of us.

In relation to Cummings’ return to Downing Street on 27 March and the trip to Barnard Castle, it seems clear that he breached the requirements that everyonelse was expected to follow. The situation in relation to the trip to Durham is less clear-cut, but it certainly would have been wise for him at the very least to get advice/clearance from No.10 or the police.

Cummings’ actions put others at risk of catching a very dangerous disease and have undermined the public health message of the government. We need to all work together to beat Covid-19 and no-one should be above that or above the law. People have been prevented from being with their loved ones in their last moments, from having proper funerals and many other hardships. Cummings remaining in post would be an insult to the British people and a danger to the effectiveness of the response to Covid-19.

Cummings is known as a rambunctious and divisive character. That perhaps is part of his genius but it should surely also be the making of his downfall. If Dominic Cummings does not resign or Boris Johnson does not sack him the message will be clear: there is one rule for the few and other rule for the many. That would be a tragedy for the country.

Omar Salem writes in a personal capacity.

3 thoughts on “Why it is now clear that Dominic Cummings should resign

  1. Thank you for taking the time to respond to me. In my opinion, the only clear breach of the rules is his return to work after his wife was ill (although even there I haven’t checked on whether the rules laid down particular symptoms and whether his wife had those particular symptoms). Nobody seems to much care about this, which as far as I’m concerned underlines the problems with the “he broke the rules and must go” narrative, in that it’s clearly not rule-breaking per se which is motivating the anti-Cummings reaction.

    Anyway, nice blogging.

  2. Thank you for your thoughtful comment, Chris. I don’t think I have really changed my mind. I said at the start that a proper investigation was needed. We didn’t get that but we did get some more information from Boris Johnson and Dominic Cummings.

    On the drive to Durham, I say in the blog that I think the situation is not clear cut. However, I think the Jess Phillips point on the guidance and the failure of Cummings to get advice from No.10 or the police moves the dial against Cummings.

    I am not sure it makes a difference in the final analysis because I think that the return to Downing Street and the trip to Barnard Castle are clear breached of the regulations.

    Regarding Barnard Castle, I am not saying that Cummings is lying – even if his account is true it does not mean he had a reasonable excuse for living where he was staying. As far as I understand Cummings is not asserting that he was driving for exercise. The fact that Cummings observed social distancing may make the breach of the regulations less serious but it does not mean it is not a breach.

    Dominic Cummings is an extremely senior and powerful government official who has been heavily involved in the response to Covid-19. I think he clearly broke the rules and therefore his position is untenable.

  3. I’m sorry, Omar (nice blog by the way). Although your comment on this matter is one of the clearest that I have read, I cannot see what has changed your mind as to the issue of whether or not the trip to Durham was legal, in accordance with guidance, and a sacking offence.

    If this is based on new information, as opposed to a conscious change in your reasoning, or the unconscious effect of peer pressure upon your conclusions, then I cannot imagine what new information that could be.

    You yourself initially said something to the effect that wanting to travel from A to B for the sake of being close to a trusted childcare provider would be reasonable, understandable, acceptable and legal. Cummings has confirmed that this was indeed his motivation, and he has even added the point that the proposed carers in Durham were in the group of adults least at risk from COVID.

    The only new information to come to light is the statement from Jess Phillips that the childcare clause was included only to prevent domestic violence. But Jess Phillips’ evidence is problematic on 3 levels. Firstly, she is not exactly an unbiased source of information. Secondly, even if this is honestly her perception, it needn’t be categorically true. She’s not the only Parliamentarian. Who drafted this regulation/guidance and what was their reasoning? Before I’d heard of the Cummings’ scandal, I believe I’d already personally heard of these provisions and that I understood that these were about people unable to look after their children. I would have got that impression from someone else (a journalist?) Thirdly, no matter what was intended, many would argue that what matters is what is in the regulations and guidance. If she wanted to exclude people acting as Cummings did then she should have amended the legislation.

    As we can discount the Jess Phillips remark, we have no additional reason to believe that Cummings’ behaviour was unlawful.

    We also know that (aside from an ambulance crew) he had no close contact with anybody and we can be sure that he did not in any way pass on the disease.

    So why have you changed your mind? Can you honestly maintain that you would hold the same opinion if Cummings had driven 5 miles rather than 200+? If you do, then do you condemn any ill parent who drove their kid around to a relative in order for that relative to look after their child? If you do not, then what about the distance covered makes you condemn Cummings?

    As to the trip to Castle Barnard, there are 4 things to bear in mind here:- firstly, we can’t prove that he is lying about his stated motivations. Indeed, his stated motivations do make sense because he did indeed travel the next day. Secondly. whatever the police said about staying indoors on Easter day, it was in fact lawful to drive a short distance in order to exercise. Thirdly, his family never went more than a few yards from their car. Fourthly, not only did Cummings continue to social distance, but he did so in a laudable spirit of social solidarity, since, like Ferguson and his girlfriend, Cummings is now no longer infectious. It is not possible for him to spread the disease.

    Here’s another big thing to consider. The law should be applied equally to all of us. In order to justify this treatment of Cummings, we have to make a special case for him to be held peculiarly responsible. Varadkar of Ireland had a picnic in the park (equivalent to the Bernard Castle event, for those relying on that to condemn Cummings), but his career has not come to an end. Stephen Kinnock, the former leader of the Remain campaign, travelled 200 miles to visit his parents, but within the Labour Party he has been promoted. Unlike Cummings, he did not have an excuse related to childcare.

    Cummings is being held *more*, not less, responsible than Ministers, PM’s, and MP’s.

    In this context, people often mention the 2 scientists who have lost posts in these circumstances. However, these are not equivalent in several ways. Firstly, they broke the rules under every possible interpretation. Secondly, the Scottish scientist was the public face of the lockdown campaign in Scotland. Thirdly, Ferguson resigned from SAGE, an unpaid role, so he barely damaged his actual career at all. Fourthly, not everyone supported the resignation of these 2 academics (as far as I’m concerned, losing Ferguson from SAGE is like the country shooting itself in the foot).

    So I don’t understand your reasoning.

    Kind Regards,

    Chris

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: