Covid-19 and the criminal law Contents

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Chapter 2: Creating covid-19 offences

9.On 23 March 2020 the Prime Minister announced extraordinary measures to slow the spread of Coronavirus. The public were asked to stay at home. On 26 March 2020 the Government signed into law the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, which among other restrictions prohibited people leaving home without a reasonable excuse, banned public gatherings, closed all except essential high street businesses and provided the police with powers to issue Fixed Penalty Notices (FPNs) to those who committed offences.8

10.Since then, the Government has continued to introduce regulations in the form of statutory instruments (also known as delegated or secondary legislation) to put in place legal restrictions to protect public health.9 Many regulations have been underpinned by criminal offences designed to limit the spread of covid-19, notably:

• failure to comply with a requirement/ restriction set out in the regulation;
• failure to comply with a lawful instruction of someone enforcing the requirement/ restrictions in the regulations; and
• obstructing enforcement of the regulations.

Throughout the course of the pandemic regulations have been introduced, amended, and revoked, resulting in regular changes to what types of activity were prohibited and would incur civil or criminal liability. The Hansard Society Coronavirus Statutory Instruments Tracker, which has tracked the introduction of covid-19 regulations since the start of the pandemic, states that 493 covid-related statutory instruments have been laid before Parliament.10

11.It is not unusual for criminal offences to be created by statutory instrument; indeed the majority of offences are enacted this way. Research published in 2018 demonstrates that in 2010–11 some 86% of new criminal offences were enacted by statutory instrument and 14% by primary legislation.11 In 2014, the figures were 92% and 8% respectively.12

12.Although the Government proposed and Parliament enacted the Coronavirus Act 2020, the majority of the new criminal offences were introduced in public health regulations made under the Public Health (Control of Disease) Act 1984. The power to make such regulations is limited to the creation of summary-only offences.13 Almost all covid-19 offences created were summary-only, meaning that they would be considered by a magistrates’ court and punishable by a fine. An offender would face criminal prosecution only if a fixed penalty notice was unpaid after 28 days and the relevant police force decided to prosecute.

Responsibility for criminal law policy within Government

13.In normal circumstances, a department planning to introduce a bill or a statutory instrument containing a new criminal offence consults the Ministry of Justice. Government guidance to departments explains that a new offence should only be created “if it is both proportionate and necessary to the policy objective they are trying to achieve”.14 The guidance also makes it clear that officials should consult the Ministry of Justice, “who scrutinise the creation of new offences, and impact on the justice system, through the Home Affairs Committee clearance process”.15

14.We questioned Ministers on ownership of policy and the public health regulations throughout the pandemic. Lord Bethell, the then Parliamentary Under Secretary of State, Department of Health and Social Care, explained that at the start of the pandemic the Department for Health and Social Care was responsible for the origins of most covid-19 policy. However, as the pandemic emerged, implementation became increasingly “cross-governmental” with greater Ministry of Justice and Home Office involvement.16 In its submission to our inquiry the Government stated:

Departments across government have worked closely with each other and enforcement agencies on all aspects of the Covid-19 response, including in relation to enforcement and criminal offences. There has also been continued dialogue with the National Police Chiefs’ Council (NPCC), engagement with local authorities, and scientific input to inform which measures are needed.

15.Lord Bethell told us that the shift to increasingly “cross-governmental” co-ordination was reflected in the creation of the UK Health Security Agency (UKHSA), which he stated “will play a really important role in public health policy” and “pandemic preparedness”, and bring together the “expertise and legal guidance”.17 The UKHSA is a new executive agency, sponsored by the Department for Health and Social Care, which since April 2021 has been responsible for planning, preventing and responding to public health threats such as pandemics.18

16.With regard to enforcement, Kit Malthouse, the policing Minister, explained that the Home Office were in “almost constant conversation with the police about the regulations […] coming out of the Department of Health”. Engagement with the National Police Chiefs’ Council was led at both ministerial and official level and informed the measures the Government put in place in response to the emergency.19 However, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services’ report into “Policing the Pandemic” has suggested that the police’s engagement with the Home Office did not always extend to the Department of Health and Social Care.20

17.What is less clear is the extent of the role played by the Ministry of Justice at the earlier stages of the pandemic in determining evolving policy around use of the criminal law in response to covid-19. Sir Jonathan Jones QC, former Treasury Solicitor and former Head of the Government Legal Service (still in post at the start of the pandemic), suggested that the urgency of the situation might have meant that the Department of Health was not able to consult with the Ministry of Justice, as is normally the case, on the creation of criminal offences and on penalties.21 Lord Wolfson suggested that the Ministry of Justice did not play a significant role in development of the criminal offences in covid-19 regulations:

The regulations that we are talking about here are not MoJ regulations. The MoJ does not sign off on all criminal offences across Government before they are put into effect, obviously.22

18.The Attorney General is responsible for deciding whether criminal offences in the Coronavirus regulations should be specified under Section 3(2)(a) of the Prosecution of Offences Act 1985. Specified proceedings are subject to the “Single Justice Procedure” (see next chapter), which is a police-led prosecution that applies to summary-only, non-imprisonable offences. Gregor McGill, Director of Legal Services, Crown Prosecution Service, told us that the CPS had been asked to advise on changes in policy, how the regulations were formulated, the language used, and how they were set out.23

19.Lord Wolfson suggested that a key lesson that the government had learned from its approach to the criminal law during the pandemic had been the need “to bring criminal law into the planning”:

If you go back a number of years, I am not sure that people would have thought that when thinking about pandemic planning, you would think about the lawyers. You might think about it in a very general sense, but we have seen that, in any future pandemic—please God, there won’t be one—we need to be prepared for the criminal law to have the granular detail, which is where we have got to now.24

20.A central lesson from the covid-19 pandemic is that future responses to pandemics needs to be cross-governmental from the outset, and not just led out of an individual department, such as in this case the Department for Health and Social Care.

21.Another lesson is that the Ministry of Justice should have greater oversight over the creation of criminal offences in response to public health emergencies, including a pandemic. As government guidance states, the Ministry of Justice should be consulted on the creation of new criminal offences to ensure they are proportionate and necessary and to consider their impact on the wider justice system. This is as important in a pandemic as in ordinary times, notwithstanding the need to move at pace.

22.The Government should update its guidance on the creation of new criminal offences for all departments to clarify that the Ministry of Justice should as a rule be consulted. While circumstances may conceivably arise in which the need for a speedy response may temporarily suspend that need, as may have been the case in the early stages of the covid response, the Government should make a clear commitment to undertake the necessary consultation in all but the most exceptional circumstances and to do so retrospectively in the event of new offences being created without the proper procedures having been followed. The Ministry of Justice can play an important role in both ensuring a degree of consistency of approach and identifying the potential impact on the criminal justice system.

23.We support the creation of the UK Health Security Agency as a new body designed to ensure the nation can respond quickly and at greater scale to future pandemics. In line with Lord Wolfson’s suggestion that expertise in the criminal law needs in future to be brought into pandemic planning, we urge the Government to ensure that the Agency has sufficient expertise in the criminal law, and factors such expertise into future pandemic preparation.

24.Given the central role that new covid-19 related offences and lockdown laws played in protecting public health, we recommend that the Government commission a study, to be conducted by the UK Health Security Agency or other relevant body, into the role of the criminal justice system in protecting public health during pandemics. The aim of the study should be to examine how effective the creation of covid-19 offences was in achieving compliance with public health regulations and protecting public health.

The role of the House of Commons and the introduction of criminal offences

25.Throughout the pandemic the Government used delegated powers to legislate at speed to control the spread of the virus and protect the most vulnerable. The Government explained:

One of the most significant challenges of legislating for Covid-19 has been legislating at speed to respond to the rapidly evolving context. Under normal circumstances, it takes between six and eight weeks for a draft affirmative instrument to pass through Parliament. Waiting this long to implement some of the measures, such as the national lockdown initiate in January, would have led to significantly more cases, hospitalisations—which would have placed the NHS under ever greater strain—and deaths.25

There has been general recognition of the need to respond very quickly to the changing circumstances of the pandemic, particularly as it began when facts about the virus were not well known. The Government was right to use all the legislative tools at its disposal, as granted by Parliament, in order to legislate to protect public health during the covid-19 pandemic.

26.Concerns have been raised, however, about the longer-term implications of legislating in this manner, particularly in relation to the principles and practicalities of the rule of law. Sir Jonathan Jones raised a number of issues with the Government’s overall approach to legislating during the pandemic. While recognising that the powers used by Parliament were wide-ranging emergency powers that had been specifically designed for use in a public health emergency, he said:

[T]he legislation very often has only been made available and has only been published with very little notice; and, secondly, that there has been no meaningful parliamentary debate or scrutiny before the law comes into force. That of course has wider implications for the ability of MPs to contribute to debate, and to scrutinise the content of the law, which of course has been extremely intrusive, and in some cases rather controversial. None of the usual process of debate and scrutiny has occurred in many instances.26

There were instances during the pandemic in which, owing to the nature of the made affirmative procedure, Members of Parliament were unable to scrutinise instruments before they had been repealed.27

27.Lord Bethell, a Minister in the Department of Health and Social Care, disagreed with Sir Jonathan’s analysis stating that the “influence, challenge and scrutiny of Parliament” was “very much brought to bear” in the drafting of the public health regulations.28 The Government noted that it had “continued to evolve its approach to legislating” over the course of the pandemic drawing on feedback from parliamentarians and key committees such as the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee.29 The Government also noted that at key stages (the introduction of local alert levels in October 2020, the national lockdown in November 2020, the regulations for the new tiers system in December, and the regulations implementing the roadmap out of lockdown in March 2021) Parliament was given an opportunity to scrutinise the legislation before it came into force.30

28.Parliament has a responsibility to ensure that any criminalisation has democratic legitimacy. Legitimacy is vital when widespread curtailment of civil liberties is at stake and the risk of people ignoring the rules owing to low risk of detection is high.

29.A lesson from the covid-19 pandemic is that Parliament should play a more active role in the creation, scrutiny and oversight of new criminal offences in response to emergencies. One of the primary functions of parliamentary scrutiny of legislation is to make the legislative process, and the law it creates, accessible and transparent. Parliament plays an important role in making sure that the law and any new criminal offences are so far as is possible intelligible, clear and predictable. It is not satisfactory in this context that Parliament was not always able to fulfil its function when Members were required to consider statutory instruments already superseded. We recommend that the Government and the Procedure Committee of the House of Commons consider how future scrutiny of emergency regulations can be conducted in a timely fashion.

30.The Ministry of Justice has undertaken to write to this Committee whenever it introduces a statutory instrument which may be of interest to this Committee. During the pandemic, we have corresponded with the Lord Chancellor over a number of statutory instruments, such as those for example regarding custody time limits and the stay on possession proceedings.31 The Ministry of Justice’s commitment to ensure that this Committee is informed of significant changes to the justice system through statutory instruments is very important for our work. It would represent good practice if all other government departments also undertook to keep their corresponding select committees informed of significant changes to the law made by statutory instrument.

31.To facilitate effective scrutiny of new criminal offences in statutory instruments, it would be helpful if the Government would ensure that the accompanying explanatory memorandum should contain a specific section detailing any new offences, the reasons behind their creation, and the justification for the penalty applied. The memorandum should also contain a short statement setting out why the offence is considered both proportionate and necessary.

The Government’s communication of covid-19 offences

32.Throughout the pandemic the Government communicated changes to the law through public announcements in No. 10 press conferences and Parliament, the media and guidance published on gov.uk. All the regulations were published on legislation.gov.uk, run by the National Archives, which set up a special page to bring the covid-19 laws together.32

33.Lord Bethell, the then Parliamentary Under Secretary of State at the Department of Health and Social Care, explained that the Department for Health and Social Care’s primary focus was “to take the population with us” and on “providing guidelines to the public”:

One of the great benefits of bringing guidelines into law is the clarity with which the legal process brings the thinking and advice from Government. As the pandemic emerged we actually found benefits from bringing guidelines into law so that the communication to the general public avoided duplication and could be consistent and clear in its messaging.33

34.Lord Wolfson, Parliamentary Under Secretary of State at the Ministry of Justice, explained that guidance was needed to clarify the aims of the legislation and provided the following example:

The original legislation provided that you could not leave your home without a reasonable excuse. That would mean that it wouldn’t be an offence if you left your home to go shopping for necessities, but once you were out, you decided to hold a barbecue on the village green. I would venture to suggest that nobody but a silk from Lincoln’s Inn would take the view that that was permissible. The reason that, if I may say, the ordinary person took the view that obviously that would be against “the law” is because the guidance made it very clear what the aim of all of this was.34

35.Sir Jonathan Jones expressed concerns with the way in which the Government communicated changes in the law:

We have seen inconsistency between different statements, and between different pieces of guidance that have been produced on the law and what the actual text of the regulations says. We have seen different police forces, for example adopt different interpretations and different approaches to enforcement, partly because, as I say, it has been sometimes difficult to know with certainty what the law is actually going to say. None of this, it seems to me, is helpful to confidence in the law and making people understand what is actually required of them and therefore comply with it.35

36.There were high-profile incidents where confusion between the guidance and the law has led to misunderstanding about what it was acceptable to do, such as the case of the two women in Derbyshire who were fined for travelling to exercise.36 Pippa Woodrow, a barrister at Doughty Street Chambers, highlighted further specific examples where government guidance and public announcements appeared to conflict with, or at least confuse, the underlying criminal offences.37 Pippa Woodrow summarised:

It is a basic common law requirement, as well as a feature of human rights protections, that criminal prohibitions in particular must be accessible, and they must be sufficiently certain for people to regulate their conduct and know in advance whether what they plan to do is or is not an offence, and what the consequences are likely to be. Unfortunately, we have seen many, many examples throughout lockdown that would tend to suggest that the regulations have in fact not satisfied that test.38

37.Similar concerns about Ministerial announcements and government guidance confusing the legal situation have been expressed by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS):39

Their difficulty was made worse by a widespread confusion in relation to the status of Government announcements and statements by ministers. Ministers asserting that their guidance—which had no higher status than requests—were in fact “instructions to the British people” inevitably confused people. In some cases, police officers misunderstood the distinction, and appeared to believe that ministerial instructions were equivalent to the criminal law […] Some forces told us that they sought legal advice on the regulations so that they could produce clear guidance for their workforces. But the speed with which regulations were made and amended (usually by being added to) was great. And to many, the distinction between law and guidance remained uncertain.

HMICFRS noted the potentially damaging longer-term consequences of the uncertainty between guidance and the law:

It is essential that the police are seen to be enforcing the criminal law, and not appearing to act as the coercive agents of ministers. The model of British policing is very different from those found in authoritarian countries, and nothing must be allowed to be done which leads the public to believe ministers can criminalise actions by edict then enforced by the police.40

38.The confusion has also been demonstrated by those responsible for introducing the law. For example, we asked Lord Bethell, the then health Minister, whether social distancing was a legal requirement or stipulated in guidance. He told us that “I think it is in the steps regs, which came through in January, and therefore it is in law. So, it is totally unambiguous”.41 The “steps regulations” referred to do not contain any direct reference to social distancing, although they do require the organiser of a permitted organised gathering to take into account government guidance which is relevant to the gathering.42

39.Daniel Greenberg CB, Counsel for Domestic Legislation at the House of Commons, expressed concern to us about “combination of regulations and guidance, and the lack of clarity as to where one starts and the other stops”. He noted that “departmental reliance on informal non-statutory guidance to amplify or supplement provisions of the regulations is capable of amounting to unlawful sub-delegation”.43 Even in cases where it was clearer that the enabling power expressly permitted use of the guidance, he argued that “in rule of law terms there is a considerable decrease in certainty, transparency and accountability”.44

40.Daniel Greenberg also suggested that there had been an inconsistent approach to drafting of the legislation, which had raised issues around legal certainty:

The various tranches of coronavirus restrictions regulations have all been underpinned by provisions making breach of the regulations a criminal offence. The terms of the restrictions therefore require to be cast in terms of sufficient clarity and certainty to enable readers to determine in advance whether kinds of activity will or will not incur criminal liability. This has not, however, been a consistent approach of the regulations.45

He explained that in some instances (for example, isolation regulations that required people to stay in a “suitable place”) the legislation did not provide sufficient objective criteria to allow people to determine whether they were compliant with the rules.46 In other instances, the regulations were defined with sufficient certainty, but in terms that made it “difficult to identify any rational purpose behind the precision”.47 For example, off licences were prohibited from selling alcohol at certain times, but permitted to remain open for the purposes of delivery and collection, creating a loophole where customers could simply order the alcohol from outside the shop and collect it. He warned that “it is the very precision of provisions of this apparent irrationality that make them dangerous in rule of law terms, particularly in contexts where a breach of the regulations is a criminal offence, as they inevitably tend to diminish respect for the criminal law”.48

41.Kit Malthouse, the policing Minister, acknowledged that there had been “teething issues” in the early stages of the pandemic, with regulations and guidance needing to reflect the “variety of nuances of human existence”. He said that the interpretation of the regulations required “a bit of common sense on both sides” and concluded that people “got there” in the end.49 Overall, he judged the legislative framework to be a success and suggested that whether that success was due to the law or to guidance was immaterial:

From my point of view, the compliance was frankly astonishing. Tens of millions of people recognised our individual duty towards our collective health, and they stayed at home. They grumbled about it and were fed up about it—maybe we all were—but in the end, they all got it. The very small numbers of people who transgressed were largely dealt with by the first three of the four E’s, and then an even smaller number were eventually enforced against. To me, that looks like success. I am the Policing Minister, right? So I am indifferent as to whether they did it because of the guidance or the regulations—I am just glad they did.50

42.The Government’s communication of new covid-19 offences created in response to the pandemic was essential to ensuring both that public and law enforcement agencies understood what was prohibited and delivering high levels of compliance.

43.We recognise that throughout the pandemic the Government’s priority has been to communicate as clearly as possible to the public what they should and should not do. We also recognise that due to the speed with which legislation needed to be passed, and the complexity of the legislative framework, it was difficult always to capture the nuance between what was advisable and what was prohibited by law within Government announcements and ministerial press conferences.

44.However, blurring the line between government guidance and the law has potentially damaging long-term consequences, including for the rule of law. In a free society that respects the rule of law, only legislation can criminalise conduct, and it should be open to a person to decide whether to follow government guidance. The Government has a responsibility to ensure that the public and the police have a clear understanding of the distinction between guidance and the law.

45.We recognise that sometimes novel offences were created at speed and that there was inevitably, therefore, some initial uncertainty about their extent and application. However, the concept of legal certainty is an essential component of the rule of law. In principle, all restrictions should be cast in terms of sufficient clarity and certainty to enable people to understand whether certain kinds of activity will or will not incur criminal liability. Government communication of any new criminal offences must always accurately reflect the true legal position so as not to undermine public trust, and subsequently public compliance. We recognise that the novelty of these offences meant the usual clarity in the law that evolves as cases are prosecuted and heard by the courts was necessarily absent and clarity and understanding of the public, police and the courts can naturally be expected to improve over time as happens with other offences.

46.A key lesson from the covid-19 pandemic is the importance of public communication of any new restrictions and criminal offences to delivering compliance and protecting public health. The Government should review how public health guidance and public health regulations are communicated to the public in future pandemics, including via public announcements and gov.uk, to ensure that it is clear to the public what constitutes advice and what is legally required of them. This could be done as part of the study which we recommend the UKHSA undertakes.