This post is written in response to a comment by a reader, John Burton, of Rosalind English’s post on the latest in the Lockdown challenge launched by Simon Dolan in which Philip Havers QC has been instructed.

We don’t dispense legal advice from the UKHRB, but I thought this was a very interesting question and the editorial board felt it best to try to answer it in a separate post, so here it is, and many thanks to Henry Tufnell, one of our pupil barristers, soon to become one of our new tenants, for taking up the challenge.

First, a reminder of the question, from a reader in Wales, regarding their ability to visit, and be visited by their son across the border. Here is the full comment:

Can I just leave a point relating to ‘cross border’ lockdown that no one seems to have considered. Perhaps someone with a legal mind could comment (I have no legal training or knowledge).

I live in Wales were the ‘lockdown’ regulations have become ever more restrictive. The last update to the regulations limited us to having to remain local (which guidance deems to be 5 miles). My son lives in England and would like to visit me. The Police in Wales have been stopping cars from England and turning them back.

However, the legislation, here, restricting travel etc. is The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020

Section 1 (2) says “These Regulations apply in relation to Wales”

Section 8 (1) restricts travel ” During the emergency period, no person may leave the place where they are living without reasonable excuse.”

Thus, I would contend, that anyone visiting Wales from England cannot have their travel restricted as they do not live in Wales for this section to apply. i.e. The Act does not restrict travel per se, it just restricts people leaving the ‘place where they are living’. If the do not have a home here in Wales it cannot not therefore apply.

Perhaps someone could have a think about this and cross border enforcement in general? I’d be interested in some views.

The position in relation to cross-border travel between England and Wales has caused confusion in recent weeks. It has been subject to posts from UKHR readers and there have been news articles showing that many people have been entering Wales from England to access beauty spots, unaware that there are different regulations governing the two countries. This post will attempt to clarify the current position. 

The Regulations

The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020/353 (“the Welsh Regulations”) sets out at Regulation 1(2) that they “apply in relation to Wales.” Similarly, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020/350 (“the English Regulations”) sets out at Regulation 1(2) that they apply “in relation to England only.” 

The restrictions on movement and being indoors during the “lockdown” period for Wales are set out at Regulation 8(1) of the Welsh Regulations, where it states that:

“(1) During the emergency period, no person may, without reasonable excuse

(a) leave the area local to the place where they are living or remain away from that area;

(b) gather in indoor premises with another person who is not—

(i) a member of their household,

(ii) their carer, or

(iii) a person they are providing care to.”

Regulation 8(1) is subject to a list of “reasonable excuses” which are set out at Regulation 8(2) & (3), although these are not be discussed in detail here. Regulation 8(4) also sets out the position in relation to exercise:

“(4) Paragraph (1)(a) does not apply to a person who is exercising, but only where the exercise starts and finishes at the place where the person is living.”

This can be contrasted with the English Regulations which has less stringent restrictions in place on movement. Regulation 6(1) of the English Regulations sets out the following:

“(1) No person may, without reasonable excuse, stay overnight at any place other than the place where they are living [or where their linked household is living].”

Cross-Border Travel

Given the difference between the two sets of Regulations, the issue arises whether someone living in England is able to cross over the border to visit Wales when they do not have a “reasonable excuse”. 

Regulation 8(1) of the Welsh Regulations sets out that no person may leave the area local to where they live or remain from that area without reasonable excuse. The meaning of the term “local” has been addressed in Guidance issued by the Welsh Government. As a general rule it is stated that “local” is anything within about five miles of your home, although in rural areas this distance might be greater to account for the fact that amenities and public services may be spread over a greater geographical area. 

If, therefore, people living in England were to cross over the border into Wales, they would immediately be contravening Regulation 8(1) unless they had a “reasonable excuse” for doing so. This would not apply to people living in England who live close to the Welsh border and have to travel into Wales to access public services and amenities. In addition, an individual living in England would be able to exercise in Wales provided that they were starting and ending their exercise at the place where they live.

Conclusion

The situation is clearly fast-moving and will be subject to further changes in the coming weeks. However, at present it seems that an individual living in England would be acting contrary to the Welsh Regulations by driving a significant distance into Wales in order to visit friends and family or for exercise and other leisure activities.

Henry Tufnell is a pupil barrister at 1 Crown Office Row

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