When taking their daily outdoor exercise, just what exactly are people allowed to do? Advice issued to police in England, including a list of 'reasonable excuses' to leave the home, clears up some questions, but leaves others unanswered.
"The information from the various governments and other authorities has been incredibly confusing and at time contradictory" says Elfyn Jones of BMC Cymru/Wales, "and we are seeing considerable inconsistencies in the way various bodies and even different police forces are enacting this legislation."
To help address the general air of confusion, the document published by the National Police Chiefs' Council and the College of Policing, based on guidance for England from the Crown Prosecution service, states that:
"Some public statements made soon after the adoption of the [lockdown] Regulations suggested that members of the public could only leave their homes if 'essential' to do so. However, this is not the test set out in the Regulations and there is no legal basis for a requirement in those terms to be imposed. The applicable threshold is that of 'reasonable excuse'."
The advice then lists a series of actions that officers can deem 'likely to be reasonable', and others that are 'not likely to be reasonable'.
Here are a few questions on the English police guidance relevant to the outdoors:
In England, is driving to the place you take exercise actually banned?
Despite what we often hear, no it isn't. However the exercise should last longer than the drive to get there - which for most people will preclude driving to National Parks or other upland areas.
The advice to officers states that "it is lawful to drive for exercise" and that "driving to countryside and walking (where far more time is spent walking than driving)" is reasonable.
On the other hand "[D]riving for a prolonged period with only brief exercise" is not likely to be reasonable.
The idea seems to be to keep it very local, though that is not explicitly set out in this document, which leaves the key question on driving time and distance essentially at the discretion of individual officers. How is it going to be interpreted, and how enforced?
Can you only walk, or run?
No. Reasonable exercise includes: "going for a run or cycle or practicing yoga. Walking in the countryside or in cities. Attending an allotment."
No mention of climbing.
While out for exercise, can you sit down in one place?
Yes and no:
"Stopping to rest or to eat lunch while on a long walk" is likely to be reasonable. However a "short walk to a park bench, when the person remains seated for a much longer period" is not on. The principle is that "a very short period of 'exercise' to excuse a long period of inactivity may mean that the person is not engaged in 'exercise' but in fact something else".
But you can only go out for exercise once a day, right?
No, despite what many assume to be the case, there is no such law in England. On exercising more than once per day, the advice to police says that:
"the only relevant consideration is whether repeated exercise on the same day can be considered a 'reasonable excuse' for leaving home."
As a guide to police officers this appears to leave the judgement entirely to discretion. For the general public it's so vague as to be useless.
...but we're only supposed to be out for one hour?
No official statement has ever made that claim, and it does not feature at all in the police advice. Rumours along these lines allegedly stem from ministerial ad-libbing at the sometimes rather improvised-looking daily press briefings.
It is worth repeating that the above information refers only to England. The Welsh government is more explicit about the once per day rule, for instance. So what's the situation in the other nations of the UK?
A public statement by Scottish Ministers, on what exercising rights of access responsibly under the Land Reform (Scotland) Act 2003 means during the COVID-19 emergency, states that:
"Under current guidance, it is only permitted to leave your home for specific reasons, including to take exercise, alone or with other members of your household, and no more than once a day."
But while the advice is to exercise just once daily, as in England, Scottish law itself does not specify a number of times, making the apparent limit unenforceable.
The statement goes on:
"It is a requirement of the Scottish Outdoor Access Code that we all behave in a responsible way that is considerate of other people."
This means, they say, that during the current emergency everyone should:
- Stay local. "Please do not travel in your car to take exercise; please make use of the paths, open spaces and quiet roads in your own local area" says the advice.
- Maintain your distance (stay at least 2 metres away from other people and if possible try to avoid busy times on popular paths or places)
- Respect the health and safety of farmers and others working the land: "Please follow all reasonable requests and signs to avoid particular areas, such as farmyards, fields with pregnant or young livestock, and other busy working areas."
- Keep your dog under control: "please put them on a lead or keep them close at heel and do not let them approach other people or livestock".
- Avoid contact: "try to avoid touching surfaces and if possible plan a route that does not require you to open gates".
Police in Scotland have a responsibility to enforce the special measures relating to essential travel and social distancing, and have powers to warn and fine people who are not following them.
"This is a temporary situation and it is more important now than ever to maintain good relationships between neighbours and within communities" says the Scottish Government advice.
"This is not about restricting the general right of responsible non-motorised access to land but it is part of the wider approach to prevent COVID-19 deaths and preserving the nation's food supplies."
"Exercising access rights responsibly means respecting the needs of other people, and you will need to adapt your behaviour accordingly in the national effort to contain the spread of COVID-19."
"Land managers should respect access rights, which are particularly important at this difficult time. If necessary, use helpful signs to highlight issues to users and suggest reasonable alternative routes."
In recent weeks it has become clear that some land managers in Scotland and elsewhere in the UK have been far from respectful of access rights, and a few are resorting to unreasonable measures such as blocking paths and putting up signs with no legal basis.
The situation in Wales is arguably the most tightly controlled of any part of the UK.
A 'reasonable excuse' for leaving the house includes taking only "one form of exercise a day, for example a run, walk, or cycle – alone or with members of your household", according to Welsh Government advice.
"The police and local authorities have powers to enforce compliance with Regulations and will act with discretion and common sense in applying these measures and we expect the public to act responsibly, staying at home in order to save lives."
Police powers include arrest and fines for activities deemed unreasonable. This seems to include climbing and hillwalking.
Citing anecdotal evidence from police forces around the country, Elfyn Jones of BMC Cymru/Wales says:
"We have heard of fixed penalties being issued to people bouldering on the Ormes; formal warning issued to climbers at other locations; people being formally warned and threatened with fines when walking 100m from their own house to go swimming in a nearby lake, etc. Three walkers attempted to walk up Snowdon on Monday and have been reported on summons by the police (i.e. that will be dealt with by a court, who can issue unlimited fines)."
While the public right of access remains in force in Scotland, thanks to the fact that it has been enshrined in law north of the border, the same freedoms are not enjoyed in England or Wales. In response to the Coronavirus crisis, the Welsh Government imposed a duty on local authorities, the National Trust and National Parks to close all areas where there was a likelihood of mass gatherings or where there was a risk of the virus being transmitted.
National Park Authorities in Wales have closed access points and popular routes on many usually-busy hills. In effect large areas of Welsh National Parks are currently off limits to the public.
"We publicly supported the closures of iconic and symbolic venues such as Snowdon, Pen y Fan and similar places" explains Elfyn Jones.
"However, neither we or any other recreational bodies were consulted on the details and would have had little influence on that decision.
"In Wales we feel that some National Parks have closed areas that are far too extensive and that there are some unnecessary closures that impact quite severely on some local communities ability to use their local path and access network for exercise.
"Given that the purpose of the legislation in Wales only places a duty on local authorities and National Parks to close paths or access land where people are likely to gather in large numbers, we are pushing hard to ensure that the relevant authorities regularly review these closures to ensure that only areas that really do need to be closed are actually closed and this legislation should not be used as an excuse for the wholesale closure of the countryside.
"Along with Ramblers Wales, and supported by almost every other recreational body in Wales, we have so far managed to stop the Welsh Government from closing every public path in Wales as they initially intended to do."
Legal versus moral imperative
Perhaps we know a bit more about what we can do (and in England it's more than many of us believed). But what should we do?
In some cases there remains leeway for personal interpretation, but each of us also has a responsibility to make sure that our actions do no harm to others, or risk undermining the team effort. The general feeling is that we are all making sacrifices, and we should all set an example rather than seeking loopholes to game the system.
The law may be silent on activities such as climbing and hillwalking, but collective opinion in the outdoor community is strongly that these non-essential activities should not be taking place during lockdown. Both climbing and hillwalking are usually carried out far from home, and have the potential to put pressure on already-stretched emergency services and healthcare facilities.
At UKH and UKC we feel very strongly that no one should currently be doing any climbing or hillwalking:
It is also clear to us that travelling outside your local area to exercise is contrary to the spirit of the anti-virus measures. The definition of 'local' may be vague, but we all know common sense and consideration when we see it!
The BMC position is similarly unequivocal:
"The BMC advice to all climbers and hill walkers is now simple: climbing and hill walking are not activities requiring essential travel. Stay local, and put your climbing and hillwalking on hold. This applies to all types of climbing and mountain activities, from bouldering to ski mountaineering."
Mountaineering Scotland advise that:
"The current guidance means we should avoid non-essential travel. Mountaineering Scotland actively encourages members to continue taking daily exercise and to get outside for health reasons in their local area, in accordance with the updated guidance below."
"Stay local – please do not travel in your car to take exercise; please make use of the paths, open spaces and quiet roads in your own local area."
Mountain Rescue Teams across Britain have also put their weight behind the message not to visit the hills. Teams across the country received a total of 20 call outs over the Easter weekend - much quieter than usual.
"We'd like to thank everyone who stayed at home and kept safe," said Mike France, SEO of Mountain Rescue England and Wales.
"We need everyone to keep being responsible by staying at home and, for their exercise, staying close to home."
"With over 700 people dying every day, now is not the time to test perceived loopholes in the simple and straightforward public advice and guidance to Stay at Home. It is unfair for people to travel into National Parks and other areas and, I assume, expect MR volunteers to risk their own lives (and those of their families and colleagues) if called."
"We've seen a massive drop in the number of call outs in the past month since the lockdown and we're very grateful for that – thank you to everyone who has stayed at home. But it is vitally important that people continue to be responsible. That is what will save lives and protect not only the NHS but also our MR volunteers."
"The hills and upland areas will still be there to be enjoyed once the restrictions are lifted."