Did Boris Johnson break the law with the Downing Street party?

The Policing Minister, Kit Malthouse, was interviewed by Mishal Husain on the Radio 4 Today Programme this morning. At about 08.20 he was pressed on the party allegedly held in Downing Street shortly before Christmas last year.  He said that he had been “briefed” in preparation for the interview, and been assured that anything that happened was “within the rules.”

Ms Husain asked him how it could have been within the rules.  Mr Malthouse did not explain. He was not an investigator, he said, and if there was a party, which he was neither admitting nor denying, he was not at it. He simply accepted what he had been told which seems to have been the bare fact that it was “within the rules.”

There seems little doubt that a party did take place in Downing Street on 18th December 2020.  Although the reports have been described as “unsubstantiated, anonymous claims” by the Deputy Prime Minister, there has been no denial of their substance.

No-one from the government has attempted to explain the basis on which the party could have been lawfully held. That may be because there is no explanation, or it may be because the explanation is more embarrassing than silence.

I’m afraid what follows necessarily involves an uncomfortably close look at some rather turgid law. But this is a legal blog, so if you’ve read this far you may be expecting that.

The law

Was the party necessarily unlawful?

The answer is that it could have been lawful.

We need to take a very close look at the relevant Coronavirus Regulations.

On December 2^nd 2020 the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020.

Paragraph 1 of Schedule 3 provided:

“(1) No person may participate in a gathering in the Tier 3 area which—

(a) consists of two or more people, and

(b) takes place in a private dwelling or in any indoor space.”

A “gathering” was helpfully defined in Paragraph 6 (2) (e):

“a gathering takes place when two or more persons are present together in the same place in order—

(i) to engage in any form of social interaction with each other, or

(ii) to undertake any other activity with each other ….”

On 16^th December 2020 the City of Westminster was designated a “Tier 3 area”. Downing Street is within the City of Westminster.

The Metropolitan Police started enforcing the new rules immediately.

They are still enforcing them today as the Standard’s always helpful Tristan Kirk reminded us this morning,

Time Limit for Prosecution

Unlike most offences triable only in the Magistrates Court, offences under the Coronavirus Regulations do not need to be prosecuted within 6 months if their commission.  S.64A of the Public Health (Control of Disease) Act 1984, the parent statute under which the regulations were made, extends the time limit for prosecutions to three years from the alleged commission of the offence, or 6 months from the time the prosecutor has knowledge of sufficient evidence to justify a prosecution, whichever is the shorter.

It is very unlikely that there is any time bar to a prosecution.

Ministerial Advice

On the morning of the party, 18th December, the Prime Minister tweeted the sensible advice that:

“it’s vital that from today, you minimise contact with people from outside your household.

Everyone must take personal responsibility to avoid passing the virus on to loved ones this Christmas.”

On 17th December the Home Secretary urged people to call the police if they suspected their neighbours were breaching the rules.

The job of the police, Ms Patel told Sky News was:

“… to enforce against the egregious breaches, the raves, the house parties, anything basically that is in breach of the rules that would effectively lead to the spread of the virus.”

On the evening of 18^th December 2020 the party took place.

According to the Daily Mirror:

“Around “40 or 50” people were said to have been crammed “cheek by jowl” into a medium-sized room in Number 10 ….”

“It was a Covid nightmare,” one source claimed.”

Food, drinks and games continued past midnight, according to Laura Kuensberg. We do not know what games took place. There was a mention of a Secret Santa.

Whether they were acting unlawfully or not, attendees do not appear to have heeded the Prime Minister’s request for people to minimise contact with others and to take personal responsibility for not spreading the virus.

Mr Johnson apparently did not attend.

Guidance and Law

The official line from No. 10, repeated by various ministers (who almost seem to have been selected for interview so that they can say they were not at the party), is that “all the guidance was followed.”  The Deputy Prime Minister and Lord Chancellor, Dominic Raab, whilst claiming “not to know the full facts because I wasn’t there”  admitted to Andrew Marr yesterday that if there was a “formal party” it was contrary to the guidance.

This misses the main point. The most serious allegation is not that a formal party was held –  formality is irrelevant. Nor is it that guidance was breached, although both interviewers and politicians have regularly elided breach of guidance with breach of the law. Guidance is not the same as law.

The most serious allegation is that the criminal law was broken, and specifically that it was broken by the Prime Minister.

Attending and organising

Breaching the Regulations was an offence punishable by an unlimited fine, although more commonly dealt with by a fixed penalty ticket. The fixed penalty for those attending an unlawful gathering was £200. For those “holding or being involved in organising” such gatherings it was £10,000.

Providing a room in Downing Street for the party to be held could certainly be considered to be involvement in the organisation of the gathering. Turning a blind eye to the party might do so too, although establishing criminal liability for omissions is more difficult than doing so for positive acts. But he was the Prime Minister. He could have stopped it going ahead.

Of course, if the Prime Minister was simply unaware of the gathering he could not be guilty of any offence.

Lawful gatherings

There was a “gathering” and it did take place in an “indoor space.”  At first glance, it was therefore prohibited under Schedule 3 Paragraph 1 of the Regulations.However, the Regulations did also list a large number of circumstances in which gatherings were lawful.

Most of these are obviously inapplicable. Nobody, for example, suggests there was a meeting of elite sportspeople, a funeral or a commemoration of a person’s death.

Gatherings “necessary for work purposes” were permitted. But alcohol and party games would not be necessary for work purposes. Unsurprisingly, nobody from the government has seriously attempted to defend the party on those grounds.

A “permitted organised gathering”?

The only provision which does seem potentially relevant is Paragraph 6 (2). Gatherings were “permitted organised gatherings” if they took place:

“… on or at premises, other than a private dwelling, which are—

(a) operated by a business, a charitable, benevolent or philanthropic institution or a public body,

or

(b) part of premises used for the operation of a business, a charitable, benevolent or philanthropic institution or a public body.”

[Emphasis added]

No. 10 would seem to be a building “operated by … a public body.” This would bring the gathering within Para 6 (2) (a).  “Public body” was not defined in the Regulations, but the expression would surely include HM Government, the body that “operates” Downing Street. The same considerations mean that the 6 (2) (b) exemption would also apply to those parts of No 10 “used by” HM Government.”

That is not the end of the matter though.

Most importantly, the 6 (2) exemption did not apply to gatherings in “a private dwelling.”  We will come back to that in a moment.

Secondly, even attending a “permitted organised gathering” was not necessarily lawful.  To be exempt from the rules those participating had to satisfy further conditions of mind-boggling complexity.

A person attending a “permitted organised gathering” was exempt from the Regulations only so long as they participated:

“… in the gathering alone or as a member of a qualifying group (see paragraph 7).”

The concept of a person participating in a gathering “alone” is hard to grasp, but “qualifying groups” was a reference to households or “linked households.” I would imagine the attendees at the party not to have been from linked households, but to have been politicians,  political aides, civil servants, journalists and the like.

Paragraph 7 of Schedule 3 provided that a person attending a “permitted organised gathering” as part of a qualifying group was no longer exempt if they “mingled” with:

“any person who is participating in the gathering but is not a member of the same qualifying group as them.”

People attending “permitted gatherings” alone were not explicitly caught by these “anti-mingling” provisions.

What this comes down to seems to be this: the party – if not necessarily the participation of everyone at the party – would have been lawful if it took place in the “official” parts of No 10.  Even if some improper “mingling” meant that some of the party-goers breached the rules that was not something for which the Prime Minister would bear any legal liability.

A Private Dwelling?

The “public body” exemption expressly did not extend to “private dwellings.” Part of Downing Street is also the Prime Minister’s official living accommodation. However, he does not in fact live there but, like previous Prime Ministers, in the more spacious (and recently refurbished) No. 11.

“Private dwelling” was not defined in the Regulations, except to make clear that the expression included:

“… references to a houseboat and any garden, yard, passage, stair, outhouse or other appurtenance of the dwelling.”

If the party, as parties have a habit of doing, spilled onto the staircase or out into the No 10 garden, were such places “appurtenances of the dwelling”?  There are property lawyers to whom such argument is meat and drink: I am not one of them.

Government spokespeople have refused to be drawn on which room or rooms within Downing Street were used.  It is said that a “medium sized room” was used, but that clarifies nothing. The building is said to contain over 100 rooms.

I am not sure who, if anyone, was living at No 10 last year, but it seems not to have been the Prime Minister.

Reasonable Excuse

The regulations provided a defence of “reasonable excuse.” I can’t imagine any reasonable excuse for such a party and none has been suggested.

Crown Immunity

Adam Wagner, whose knowledge of the Coronavirus Legislation is both encyclopaedic and unrivalled, pointed out that S.73 of the 1984 Act might suggest some form of Crown immunity.

I’m not going to go into the argument in detail because if even Adam doesn’t understand it I certainly won’t and nor will you.

What is worth saying, however, is that Crown immunity – the principle that the Monarch or her “emanations” cannot be prosecuted in the criminal courts – is something that has to be claimed by its beneficiary.  It would be astonishing if the excuse for the party were to be “I am the Prime Minister so I can do no wrong.” In any event, the long-standing view of the Treasury is that “Crown immunity does not grant protection to individuals from prosecution.”

Conclusion

If the party was confined to the government rooms and offices in the “official” parts of No 10, it probably did not breach the criminal law, even though it was in flagrant breach of its spirit, as well as of the official advice and guidance, much of it emanating from the Prime Minister himself.

If the party took place inside the private flat within No 10 it was unlawful. There is still plenty of time left for a prosecution to take place. But given that the flat at No 10 was not the Prime Minister’s actual residence, and given that he did not attend the party the prospect of actually prosecuting the Prime Minister would seem to be extremely remote.

UPDATE 09 December 2021

The relevance of S.73

I wrote above that S.73 of the 1984 Act (the parent Act under which the relevant regulations were made) “might suggest some sort of Crown immunity.” The immunity would be to prosecution for offences committed in buildings owned by the Crown (and for this purpose I assume that Downing Street is owned by the Crown).

I skirted round the point, partly because I frankly didn’t understand it, and partly because it didn’t seem very important, given my conclusion that the Regulations themselves permitted a party as long as it did not take place in a private flat.

Others much more familiar than me with the