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