52. The Guidance stated that “mitigating actions include […] using screens or barriers to separate people from each other”. When asked where there were screens or barriers in the photographs of the 13 November event, Mr Johnson replied, “There were screens or barriers, I believe, in the adjacent press room, from memory”. He continued:
I accept that perfect social distancing […] is not being observed [i.e. in the photographs], but that does not mean that what we were doing, in my view, is incompatible with the Guidance. The Guidance specifically allows for workplace freedoms to decide how to implement it, and the operative condition is “where possible”.[1]
53. Mr Johnson said that mitigations at the event included the fact that “we avoided physical contact. For instance, as the Guidance says, we didn’t touch each other pens; we didn’t pass stuff to each other if we could possibly avoid it”. When it was put to him that “[p]resumably people were passing drinks to each other, because we’ve seen the picture–”, Mr Johnson replied, “Of course. This is Guidance, and I’m not going to pretend that it was enforced rigidly, but that is explicitly what the Guidance provides for”.[2]
54. When pressed later in the questioning on the fact that no mitigations seemed to be evident in the photographs of the 13 November event, Mr Johnson said “Yes, and that is because that was the space where people congregated fast. If I wanted to get a message out, it was the natural place to do it.”[3]
55. The Guidance in force at the time stated that “Where the social distancing guidelines cannot be followed in full, even through redesigning a particular activity, businesses should consider whether that activity needs to continue for the business to operate, and if so, take all the mitigating actions possible to reduce the risk of transmission between their staff”.[4] In interpreting the Guidance as it stood in November 2020, the following points should therefore be borne in mind:
- If 2-metre distancing could not be achieved, then 1-metre distancing and mitigations was obligatory for social distancing to be said to have been achieved, and social distancing was not considered achieved if 1-metre distancing was maintained without mitigations.
- Mr Johnson was correct to state that, whether social distancing was being defined as 2 metres or as 1 metre with mitigations, the Guidance advised achieving social distancing “wherever possible”.
56. However, a gathering which was not socially distanced under the above interpretation was nonetheless only compliant with Guidance if (a) it was not possible to achieve social distancing by redesigning the activity or putting in place mitigations; (b) all possible actions to mitigate the risk of the transmission of the virus were being observed; and (c) the gathering constituted an activity that needed to continue for the business or organisation to operate.
