The Bennet sisters and their social bubble

“Linked households” in the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (№4) Regulations 2020 SI 2020/588

The Prime Minister’s daily press briefing on Wednesday 10 June 2020 introduced the concept of the “bubble” for social contact between single people living alone, who have been isolated from other households during the coronavirus crisis. The burden of this long period of solitary life, even on young and middle-aged people in good health, should not be underestimated.

“Bubble” is not a very legislative-sounding word (a Bubble Act was passed in 1720, but that was its colloquial rather than official name), and the Prime Ministerial bubbles have now become defined in law as “linked households”, in regulations published on Friday 12 June, the majority of which came into force the following day. These regulations are the fourth amendment to the principal regulations, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 SI 2020/350, which came into force on Thursday 26 March 2020, and which imposed stringent restrictions on movement and on gatherings of people outdoors and indoors during the coronavirus crisis. The restrictions, which are enforceable as criminal offences, have been gradually and successively relaxed through three previous sets of amendments since March 26. Much valid criticism has been expressed of the use of emergency powers to bring these regulations into force without any Parliamentary scrutiny, and about discrepancies between the law, the government’s guidance, and police and prosecutorial conduct in dealing with the offences created under the regulations.

A new regulation, 7A, introduces and defines “linked households”. A member of a “linked household” now has enhanced freedom of movement in that he or she can stay overnight “at the place where their linked household is living”— regulation 6(1). The original version of regulation 6(1) stipulated that

“No person may, without reasonable excuse, stay overnight at any place other than the place where they are living”

and the words “or where their linked household is living” have now been added to this. There is a non-exhaustive list of reasonable excuses in regulation 6(2). The language of regulation 6(1) was slightly tortuous in its original version, and its clarity has not been improved by the amendment. Its effect is that members of linked households may stay overnight at each others’ homes, and do not need a reasonable excuse to do so. It would be prurient and pointless to investigate and attempt to prosecute such overnight stays in any event. Although regulations 6 and 7 do not prescribe when overnight ends and daytime begins, linked households now also have greater freedom under regulation 7 to gather outdoors or indoors at any time of day or night “to engage in any form of social interaction with each other, or to undertake any activity with each other” — regulation (7)(3)(a). Members of linked households can also gather in public or private outdoors without being limited to six people, and can gather indoors in unrestricted numbers as well. “Boris’s bonk ban”, as tabloid headlines described it, is now in the bin, as far as members of linked households are concerned.

In principle, these are welcome freedoms, and will permit non-cohabiting or “living apart together” couples to enjoy a private life closer to that which they had before any of the restrictions came into force. Sharp-eyed legal commentators found the “bonk ban” in the previous amendment which came into force on June 1, and which had the effect of prohibiting two people from separate households gathering in a private place, other than for one of the defined purposes in regulation 7(2). It is a pity that much of the commentary on the regulations as they stood before these amendments focused on the deprivation of sex as a consequence of restricting the movement and gathering of adults in separate households, because other shared activities and companionship can be as or more important to some couples who do not share a home. Conversely, there are young people in relationships or dating, for whom sex and other shared activities are important, but who live with their families or in shared flats and houses, and so cannot qualify as a “first household” for regulation 7A and for whom movement and gathering under regulations 6 and 7 remain fairly restricted.

Informal couples and their shared lives are an important element in the law of succession. The legal concept of two adults living together “in the same household”, as if they were husband and wife, or as if they were civil partners, is one of the eligibility thresholds for claiming reasonable provision from the estate of a person who has died, under the Inheritance (Provision for Family and Dependants) Act 1975. One of the first decisions on the meaning of those provisions after they were introduced in 1995 (Re Watson, Griffiths v Treasury Solicitor [1999] 1 FLR 78) concerned a middle-aged couple who had lived together for a decade in every way as if they were husband and wife, but without any sexual relationship. This did not prevent the survivor from being treated as if he had lived in the same household “as a husband” as “the multifarious nature of marital relationships should not be ignored”. A question for the future is whether anyone who now links their household with that of someone with whom they are “living apart together” under the coronavirus regulations will create a complete evidential bar to a future assertion that they were at the same time living “in the same household” for the purposes of an Inheritance Act claim.

Although the new “linked households” provisions are a significant relaxation of the restrictions on movement and gathering, they have their own limitations, and may present many single adults living alone with difficult choices to make. In order to form linked households, there must be a “first household” consisting of a single adult, or a single adult and a person or persons under 18, and a “second household” which may consist of an unlimited number of adults or children — regulation 7A(1). But the two households can only link if all the adults in the second household agree, and if the second household is not linked with any other household — regulation 7A(1)(a) and (b). Suppose a “first household” in which there is a single adult and a child of 17, and a “second household” in which there is another single adult, and the two adults are in a non-cohabiting “living apart together” relationship. These two single adults might obviously wish to form linked households. But what if either or both also have adult children who do not live with them, perhaps with young children of their own, or older parents whom they regularly visit, and help in various ways? Unless a “gathering” with any of them can be justified as reasonably necessary to provide care or assistance to a vulnerable person, or for the purposes of early years childcare (by a person properly registered) under regulation 7(2)(d), then social contact with these members of their families will be very limited, without any possibility of staying overnight, unless the adult in the first or second household chooses to link with one of these households, rather than with their “living apart together” partner. And if the child of 17 in the first household turns 18, but is still at school, and does not leave home, it seems that the first household no longer meets the qualifying definition of a first household in regulation 7A(1), as there would then be two adults living in it, and the households would automatically cease to be linked. Once they have ceased to be linked households, neither can be linked with any other household (regulation 7A(1)(5)). What if the 18 year old then does leave home some time after turning 18? Is the link between the households restored? It appears not. Or if a “living apart together” couple break up, do the households cease to be linked? It also appears not. A change in the relationship does not mean a change in the legal status of the link between the two households, but it seems that the first household can, and the second household cannot, link with any other household. Given these uncertainties and impracticalities, the best hope must be that this emergency and temporary legislation is superseded or revoked or outlives its purpose sooner rather than later.

In order to try and illustrate how the regulations might work, I thought about some of the fiction of Jane Austen, for her books describe several sharply observed households and social interaction between their members, the two key concepts in these regulations. The households that she wrote about were familiar to her and similar to her own — those of the early 19th century gentry and emerging professional classes (naval officers/clergymen/lawyers), in varying stages of financial comfort and discomfort, and the connected households of those both richer and poorer than them. Although typically smaller than the multi-generational aristocratic household, there are virtually none where any adults are living alone, because of the presence of domestic servants, and unmarried sexual relationships were not socially accepted at all. Marriage was the aspiration of young women and their parents. In Pride and Prejudice, Lydia, the youngest of Mr and Mrs Bennet’s five daughters, scandalises her family by eloping with a military officer, Captain Wickham. Lydia is an impetuous, high-spirited, flirtatious girl of the type that might well be called “bubbly” today. Would her living with the unreliable Captain Wickham have created a “linked household” with her family’s home at Longbourn and precluded her four sisters from visiting any other house, condemning them to stay at home and be “delighted long enough” with the weak-voiced and affected singing of their one plain sister, Mary? Lydia herself is an obvious rule-breaker with no idea of social distancing, who has followed a regiment of soldiers from the local town to Brighton before her elopement from there to London with the unreliable but charming Captain Wickham. But Lydia, at only fifteen, was neither an adult nor living in a household comprising one adult, and so her departure from home would not have had these legal consequences. After a hastily-arranged marriage, Lydia and Wickham briefly visit Longbourn, and at that point their household comprised one adult and one person under 18, so could have qualified as a “first household”, but it is inconceivable that Mr Bennet would have agreed to link his qualifying second household with his unwelcome son-in-law’s, as required by regulation 7A(1)(b). A more plausible candidate for “first household” is the unmarried (at the start of the novel) and obsequious cousin, Mr Collins. He would not have chosen Longbourn for his “second household”, but that of his nearby aristocratic patroness, Lady Catherine de Bourgh, at Rosings Park. It is not difficult to imagine her as a woman perpetually applying hand sanitiser and maintaining a haughty social distance largely by reference to social class and kinship, and busying herself in informing on her neighbours for any breach of the regulations. Nor is it difficult to imagine the social discomfort of a video conference call with an unmuted Mr Collins reading from Fordyce’s Sermons, and Lady Catherine glowering in pixels from a corner of the screen attempting to dissuade Elizabeth from marrying Darcy. “Are the shades of Pemberley to be thus polluted?” she asks, referring to class disparities between them, but she would surely have spoken of the disease borne by coronavirus in precisely the same way.

Similarly, in Mansfield Park the widowed Mrs Norris, who is Lady Bertram’s sister, has her own home (she is the rector’s widow, so, like Mr Collins, she has a home which is close to and the consequence of the patronage of the aristocratic family nearby) but is a constant visitor to Mansfield Park, from where she frugally takes home the green baize curtain intended to be used in the young people’s abandoned amateur theatrical performance. If she was in a linked household with Mansfield Park, as she would undoubtedly have wished to be, then none of the adults of Mansfield Park could have been in a linked household with anyone else, such as their third sister, Fanny Price’s mother, at her home in Portsmouth, had they, improbably, wished to form a linked household with her. The three sisters exemplify very different paths of social mobility and financial security, and live in very different households — Lady Bertram, indolent by nature, has been fortunate in every way, and Mrs Norris constrained to a frugal widowhood and a degree of dependency on her aristocratic brother-in-law. Like Mrs and Miss Bates, in Emma, she is a gentlewoman, but financially straitened, a living object lesson for young women not to become themselves, if they can avoid it. Mrs Price has moved firmly down the scale through her marriage to a lieutenant in the Marines, now discharged from active service on half pay, with too large a family in too small a house. Her daughter Fanny only realises how much her own life and expectations have changed since being taken to live at Mansfield Park, and feels ashamed of how her family live when she returns to Portsmouth and sees her parents’ home for what it is, even mistaking the sitting room for a corridor, as she has become accustomed to so much more space to live in.

In Emma there are no single adult households, save for Mr Knightley’s (and he has domestic servants) but he is a frequent visitor to Emma Woodhouse and her father at Hartfield. Valetudinarian Mr Woodhouse would have taken every precaution in shielding himself, recommending his cook’s “not unwholesome” eggs boiled very soft, and constantly consulting his friend and apothecary Mr Perry about whether or not to wear a face mask. He would have continued to enjoy “a vast deal of chat” with his friend Mrs Bates and her daughter, but through a video call rather than in person. And the Box Hill picnic could scarcely have been more dismal and disappointing for most of its participants if they had all had to sit two metres apart from each other throughout it.

At least the Bennet sisters, if living now, would have had no fear of destitution from the operation of an entail. The creation of new entails after 1 January 1997 was prohibited by the Trusts of Land and Appointment of Trustees Act 1996. And of the few existing entails at that date, probably the last came to an end on the death of the man known only as P, for whom the Court of Protection, in Re P [20009] EWCOP 163, directed a statutory will barring his entailed interest and then disposing of it as his property in his will. The opening paragraph of the judgment felicitously quotes Jane Austen on that very subject.

1. The entail was once the standard method by which the English aristocracy and landed gentry kept land in the family, as any reader of Jane Austen will know well. In Pride and Prejudice one reason for the desperate attempt to marry off the Bennet girls was that Mr Collins would inherit the estate under an entail. Even then the entail was not widely understood:

“Jane and Elizabeth tried to explain to her the nature of an entail. They had often attempted to do it before, but it was a subject on which Mrs. Bennet was beyond the reach of reason.”

2. Unfortunately, as this history of this case reveals, an entail remains a subject on which some people are beyond the reach of reason.

The same might be said about many aspects of life under the coronavirus regulations.

Note — this blog describes the law in force on 14 June 2020 and is a general discussion and is not intended to be and should not be relied on as legal advice.

Original text revised to correct the discussion of regulation 6(1), which does not require members of linked household to have a reasonable excuse for staying overnight with each other