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Parliamentary Scrutiny of the Government’s handling of Covid-19 Contents

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3The use of guidance and rule of law implications

65.The Government has not solely used legislation but also guidance to direct public behaviour. Throughout the COVID-19 pandemic, there have been instances of Government guidance or statements by Ministers failing to set out the law clearly, or in fact providing incorrect information as to what the law actually was. This chapter sets out examples of such instances but also some examples of where the Government has been clear about what is guidance versus what is legally required.

Examples of differences between guidance and the law

The first lockdown regulations

66.The first lockdown regulations were The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.62 Under regulation six of that Statutory Instrument, it was an offence for someone to leave their home without a reasonable excuse, a non-exhaustive list of which was included in that same regulation. One of the reasonable excuses was a “need to take exercise.” No limit in either length or amount of exercise was prescribed in the legislation. However, the Government’s guidance published on 29 March on Gov.uk stated that people could engage in “one form of exercise a day”.63

67.In a speech to the nation on 10 May 2020, the Prime Minister announced that people would be able take “unlimited amounts of exercise”. On 10 May, the Prime Minister said that people could now take unlimited amounts of exercise and could now sit in the sun in their local park. However, the Government did not actually make any changes to the legislation. Raphael Hogarth suggested that people could rely on the Prime Minister’s statement as a “reasonable excuse” for leaving their homes to sit in a park.

68.Dr Ronan Cormacain has criticised what he described as the Government mischaracterising what the actual law stated:

Do we have a society where a ministerial speech changes the meaning of the law? It would most likely be an abuse of process to be prosecuted for sunbathing if the Prime Minister said that sunbathing is lawful. But it is anathema to our idea of the Rule of Law if what the Prime Minister says becomes, by virtue of him saying it, the law.64

This use of speech making to the nation, either through daily press briefings or such speeches from No.10, added to confusion as to what was guidance and what was actually law.

The local lockdowns

69.The above was not an isolated example. On 30 July, the Government announced a local lockdown would be instituted in Greater Manchester, parts of West Yorkshire and East Lancashire. The Secretary of State for Health and Social Care said on Twitter:

…The spread is largely due to households meeting and not abiding to social distancing. So from midnight tonight, people from different households will not be allowed to meet each other indoors in these areas.65

70.This was reported by the media as representing legally binding requirements.66 But in reality, for several areas in the North of England, such as Greater Manchester, this was not true, there was no legislation introducing a local lockdown. Gatherings in gardens and people’s homes had not in fact been banned. An admission that such legislation had not in fact been brought into force was available on UK.Gov which said:

The government will pass new laws to enforce the changes to meeting people in private homes and gardens.67

71.The lockdown affecting parts of the North of England was not given legal effect until 5 August.68 Even though the lockdown was simply guidance at that point, it was not properly possible for people to comply on the grounds that there were at that point an unknown number of exemptions to the rules; the Government simply said that those exemptions would be “legislated for”.69 This meant that people who believed they would have had a lawful excuse to break the supposed rule on gatherings could not have known for sure whether they were complying with the intended lockdown. The absence of proper guidance was particularly strange, because when they were finally published some days later, the exceptions to the restrictions on gatherings in public dwellings substantially mirrored the relevant exceptions found in the Health Protection (Coronavirus, Restrictions) (Leicester) Regulations 2020.70

72.The Government misrepresenting the law undermines its own credibility when it asks people to follow particular courses of action. Dr Cormacain told the Committee that he had told the in-house lawyers of various companies that they should essentially ignore what the Government was saying and instead focus on what the rules actually were.71

73.This should not be taken as suggesting that there is no place for guidance as well as legislation, as the Minister of State at the Department of Health and Social Care, Edward Argar explained:

It is also important that what is put into legislation is deemed to be enforceable and practically useable in legislation. To take one example—possibly a controversial one—on the discussion around 1 metre or 2 metres for social distancing, the reality is that we could put it in law, but it would be very difficult to enforce what exactly was 2 metres—was someone a bit shy of it or at the right distance? One consideration is what is good law and can therefore be defined and enforced.72

74.In an oral evidence held on 14 July, Minister Edward Argar MP did not accept that Ministers had in any way misled the public but accepted that, in a situation in which where changes have had to be made swiftly, there may be areas where guidance and legislation were blurred.73

75.It would be wrong to suggest that the Government has never appreciated the difference between legislation and its own guidance. For example, in a statement to the House on 14 July 2020, the Secretary of State for Health and Social Care, Rt Hon Matt Hancock MP, informed the House that legislation would be introduced to make the wearing of face coverings in shops mandatory.74 The Gov.uk website explained this would be a requirement from 24 July 2020.75 This made it clear to the public that it was not yet a legal requirement but that it would be in a short amount of time. A similar course of action was taken in relation to the use of face coverings on public transport.76

76.It is prudent of the Government not to seek to legislate for every eventuality, which would lead to a myriad of confusing, flawed and ultimately unenforceable provisions and exceptions. There is, therefore, a clear role for both guidance and legislation in response to the COVID-19 pandemic. This point notwithstanding, it is incompatible with the rule of law for the Government to misrepresent what the law actually is at any time. There have been disappointing examples of this misrepresentation during the pandemic, such as describing people in parts of the North of England as being “banned” from doing things that they were not yet banned from at all. Ministerial declarations to the public are not the same as legislation and in a Parliamentary democracy they should not be treated as such. In future the Government should ensure its communications are clear as to whether something is guidance or whether it is a requirement under the law. An example of clearer communication has been over the use of face coverings in shops and public transport.

77.The Government did not immediately set out the exceptions to the ban on gatherings in private dwellings in parts of the North of England but instead waited until it introduced the legislation. This is particularly strange when the exceptions relating to private dwellings substantially mirrored the relevant exceptions contained within the lockdown regulations for Leicester. Failing to explain the exceptions in good time risks causing confusion and compliance with what were, at that time, voluntary lockdown measures.

78.The Government’s published draft legislation for implementing future local lockdowns (referred to in Chapter 2 of this report) should mean that it is easier to publish all information immediately when implementing new local lockdowns or relaxing local lockdowns slowly. However, the draft legislation should be viewed as a “living document” and should be updated as other responses are developed.

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