I was skyping with my family when my mother told me that one of her friends had been fined for going to the shops to buy several bottles of wine but no food. For those of you reading this in the distant future (because surely everybody at the current time has figured this out) the reason for this was because this was not considered a “basic necessity”[i] for the purposes of the coronavirus lockdown.

This will probably not surprise many people, wine is hardly essential – although many might argue it is absolutely vital when locked in a house with your family for a long time.

But why is it not essential?

While this seems like a simple question, it is one both the UK and Scottish Governments have failed to answer. They have provided no guidance on what essential shopping is.[ii]

 

Does Essential Mean Essential?

When I mentioned my plans to write this post, one of my friends argued that it was a non-issue, “essentials” are things which are essential. It appears to be a sound argument, but does it reflect the current understanding of the word? When I asked a group of friends if toilet paper was essential, I almost simultaneously received a “yes” and a “no”. The concepts of “necessary” and “essential” have softened. This can even be seen in the Oxford English dictionary’s definition of necessity. Necessity is defined as “a thing that you must have and cannot manage without”[iii] but its example of the word in context is “Air-conditioning is an absolute necessity in this climate.”[iv]

We will not die without soap, toilet paper, or paracetamol yet these, justifiably, have been classified as essentials by supermarkets.[v]

 

What Are Essentials?

The difficulty is that “essentials” has become a subjective term, with everyone having their own definition of it. While there are things that will be “essential” to pretty much everyone, such as bread and vegetables, there could very easily be serious clashes over other things. For example, there have been disputes in the past over whether tampons are considered essentials for tax purposes.[vi]

As such, a definitive list of essential items is impossible. Instead, a subjective test approach should be adopted.

One of the best proposed tests comes from the “Manchester Evening News” which applies the following criteria:

“If you want to head to the supermarket or to an essential shop, consider these factors before going:

• Is it urgent?
• Will it significantly impact my quality of life or risk my health and wellbeing if you don’t have it?
• Can I buy it online?
• Will I be putting others at risk by going to buy it?”[vii]

There are definite merits to this test. It covers things that are practically essential, even if they do not meet the literal definition of essential. A lack of toilet paper for example is definitely urgent and will significantly impact the quality of your life and health.

However, even this test is severely flawed. There are those that would be opposed to the inclusion of essential shopping covering wellbeing, as anything that you buy for your own happiness would therefore be considered “essential.” If I went out to buy a Nintendo Switch to prevent boredom during lockdown, it would help my wellbeing but does not fall under any definition of essential.

Furthermore, while it recommends buying online, the problem with this is that online delivery is in high demand. This is a severe problem for the elderly or those who are particularly vulnerable and  unable to go to the shops themselves, forcing them to put their life at risk or starve. In response, Tesco have requested that people do not use online delivery if they are able to go into the shop.[viii] Therefore, online shopping is not as good an alternative as it first appears.

Finally, “will I be putting others at risk?” is also a bad test because the answer will always be yes. Covid-19 is a disease that has proven to be infectious even before those who are infected have begun to show any symptoms,[ix] so if you are going shopping, you are putting others at risk. However, making people consider this should, in theory, reduce needless shopping.

 

Government Response

While the previous guide is not perfect, it’s still a guide. This is something that the current Government has not created, and this is more than just a theoretical problem. Phone lines for the police in Nottinghamshire were jammed because they were receiving too many calls from people with questions seeking to clarify the definition of essentials.[x]

The previous test is also complicated by the Government’s decision on which businesses remain open. For example, police in Peterborough found people going out to buy a bike at Halfords.[xi] This is not an isolated incident either, with demand for bicycles soaring.[xii] While this is not literally essential, nor would it pass the previous test, there was an expectation this was allowed as Halford’s was permitted to remain open. Retail analyst, Andrew Busby, noted that Halfords and similar shops have “been deemed a necessity because you have to go out and get exercise.” By allowing shops like Halford’s to remain open, with no explanation, the Government have implied that what they sell are considered essential, making it understandable that shoppers may have assumed it was acceptable to shop there.

Let us go back to the story that inspired me to write this blog. Wine is not considered a necessity, however off-licences are allowed to remain open. Again, this highlights the mixed message from the Government. Does the Government in fact consider alcohol a necessity or are these shops allowed to remain open for other products like snack foods? If, for example, Victoria Wine was still operating, would the Government permit them to remain open, describing them as an “essential business” while saying they do not sell “essentials?”

 

This is a serious time in a unique circumstance, that is difficult to create legislation for, especially with the required urgency. These limits are absolutely necessary and for them to be effective, there needs to be a reasonable understanding of what those limits are. Sue Davies, head of consumer protection at “Which?” argued that “it is really important that the Government provides the utmost clarity about what is expected of people, so that the vast majority who want to act responsibly have all the information they need to do so.”[xiii] The continuous failure of anti-lockdown protests[xiv] have shown that that the vast majority of people want to respect the restrictions and keep themselves safe and it is the Government’s responsibility to ensure that these people have as much information as possible to do so. While they cannot be expected to have all the information on the disease itself, there is absolutely no reason why they should not have all the information need both to keep them safe and to ensure their compliance with the law.

I end with this thought. If this were any other time, how would you feel if it was unclear whether you were breaking the law each time you went to the shops?

[i] The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 s 8(5)(a).

[ii] Sonia Sharma and Rachel Pugh, ‘The Items Considered “essential” When Shopping during Coronavirus Lockdown – Chronicle Live’ <https://www.chroniclelive.co.uk/news/north-east-news/essential-supermarket-items-products-coronavirus-17984100> accessed 10 May 2020.

[iii] ‘Necessity Noun – Definition, Pictures, Pronunciation and Usage Notes | Oxford Advanced Learner’s Dictionary at OxfordLearnersDictionaries.Com’ <https://www.oxfordlearnersdictionaries.com/definition/english/necessity?q=necessity> accessed 10 May 2020.

[iv] ibid.

[v] Cherry Wilson, ‘Coronavirus: Shoppers Face “essential Items” Confusion’ BBC News (2 April 2020) <https://www.bbc.com/news/uk-52097797> accessed 10 May 2020.

[vi] Rachel Thompson, ‘UK Government Finally, FINALLY Scraps the Tampon Tax’ (Mashable, 11 March 2020) <https://mashable.com/article/tampon-tax-uk-finally-scrapped/> accessed 14 May 2020.

[vii] Rachel Pugh, ‘The Items Considered as “essential” Supermarket Shopping’ (men, 26 March 2020) <https://www.manchestereveningnews.co.uk/news/uk-news/essential-supermarket-shopping-items-products-17978057> accessed 10 May 2020.

[viii] ‘Tesco COVID-19 Updates | Tesco Groceries’ <https://www.tesco.com/help/covid-19/> accessed 10 May 2020.

[ix] World Health Organization, ‘Coronavirus Disease 2019 (COVID-19)’ (2020) Situation Report 73.

[x] Connor Thompson, ‘Police Urge Public Not to Call about Coronavirus Restrictions to Help Keep Emergency Lines Clear’ (Newark Advertiser, 24 March 2020) <https://www.newarkadvertiser.co.uk/news/police-urge-public-not-to-call-about-coronavirus-restrictions-to-help-keep-emergency-lines-clear-9104008/> accessed 10 May 2020.

[xi] Wilson (n 5).

[xii] Lindsey Hamilton, ‘Dundee Bike Shop Struggling to Cope with Demand as Public Get on Their Bikes during Covid-19’ Evening Telegraph (11 March 2020) <https://www.eveningtelegraph.co.uk/fp/dundee-bike-shop-struggling-to-cope-with-demand-as-public-get-on-their-bikes-during-covid-19/> accessed 22 May 2020.

[xiii] Wilson (n 5).

[xiv] Aileen Robertson and Rebecca McCurdy, ‘Police Patrol Local Parks as Anti-Lockdown Protests Snubbed by Public in Dundee and Fife’ (The Courier, 16 May 2020) <https://www.thecourier.co.uk/fp/news/local/fife/1321689/police-patrol-local-parks-as-protests-snubbed-by-public-in-dundee-and-fife/> accessed 22 May 2020.