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Lawyers advising the Prime Minister and his ministers on the legality of holding a party – or indeed what they keep referring to as a work event – at Number 10 believe there is a loophole in the law which permits such events to take place, according to MPs.
Number 10 is Crown land, effectively owned by the state, and not covered automatically by the public health laws in a pandemic.
Lawyers are focussed on Section 73 of the Public Health (Control of Diseases) Act 1984 which is the act of parliament under which all the new regulations were made. Section 73, subsection (4)(d), deals with Crown property. The subsection allows a government department to agree with the local authority that a specified and relevant provision in the act should apply to that property. Without that request the laws don’t apply on Crown property, say lawyers.
According to barristers who have studied the relevant sections, the government department responsible for 10 Downing Street, which is the Cabinet Office, could agree with Westminster City Council that the lockdown restrictions would apply on its premises.
However, in an article written last year, after news of the a party on 18 December 2020 broke which caused the departure of No 10 adviser, Allegra Stratton, the legal expert Joshua Rozenberg wrote: “Assuming no such agreement had been made — and I would be astounded if it had — then government premises are exempt from the regulations.”
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If that is the case, this might explain the persistent defence being offered by Boris Johnson, his ministers and MPs, as to why the so-called party on 20 May 2020 was indeed a so-called “work event” and therefore permissible within a broad interpretation of the rules.
This also helps explain why the Metropolitan Police has been reluctant to get involved, if the partying happened on land not covered by the laws that apply everywhere else.
It does present Number 10 with a problem, and explains the careful, highly legalistic terms in which the Prime Minister partially apologised this week. A Tory MP said: “This is very tricky. Crown land gives them a technical get out but if they use it or shout about it then it is literally the definition of one law for them and one for the rest of us. Imagine the response of voters hearing this.”
At a meeting in the Commons this week, worried Johnson supporters were assured that their man would not be found to have broken the law and that the Sue Gray inquiry would clear him.
In an interview with Radio 4 on 6 December, Rosenberg explained that there are exceptions in the Covid regulations for what are called permitted organised gatherings. “These cover meetings on the premises of a public body. The working areas of Downing Street must surely come within that definition.”
He went on to suggest that the event might have been one of the gatherings necessary for certain purposes that are exempted under the regulations. These include a gathering that is reasonably necessary for work purposes.
Another legal expert, Adam Wagner, also tweeted at the time that news of the first party broke, that those attending the party may be exempt under Section 73.
In another twist, Rosenberg explained in his blog that under section 64A of the 1984 act, a prosecutor has six months to bring a prosecution “beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor’s knowledge”. There is an upper limit of three years from the date of the alleged offence.
Another barrister who has been poring over the details of the legitimacy of the so-called work event, is Matthew Scott, who published a detailed blog in December after the news broke. Scott, who publishes under the BarristerBlogger name, wrote at the time that: “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.”
However, this line of defence might prove tricky for the PM who, only days before the latest party story was published by ITV on 10 January, was told by one of his own Cabinet Office ministers that the regulations do apply.
On 7 January, in response to a question from Baroness Jones, Lord True said: “No 10 Downing Street is a Crown property. Regulations under the Public Health (Control of Disease) Act 1984 which relate to the activities of people, apply regardless of whether those activities took place on Crown property or not.” Lord True is minister of state at the Cabinet Office, the department which has responsibility for No 10’s operations.