Rule of Law Themes from COVID-19 Regulations Contents

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Guidance and law

39.In relation to the Government’s use of guidance drafted to explain the coronavirus laws to the public, the Committee has noticed two main issues:

• blurring the distinction between the law and guidance; and
• purporting to use guidance to amplify legislation.

Blurring the distinction between the law and guidance

40.The Committee is concerned that guidance has been used in the context of the pandemic response in a way that appears to attempt to impose more severe restrictions than are imposed by law, by presenting the guidance to the public as if it were law that compelled compliance. For example, regulations made in early 2021 to impose severe restrictions on movement in all areas of England (i.e. a national lockdown) prohibited people from leaving their home without reasonable excuse and listed some, but not all, of the excuses that would be considered reasonable.30 But the guidance went beyond what was in the regulations. It directed people to limit exercise to once a day, not to “travel outside your local area”—which was defined as “avoiding travelling outside of your village, town or the part of a city where you live”—to maintain a set distance from people not in their household or support bubble, and to leave home to shop only for “basic necessities”.31 None of these restrictions was included in the regulations and they were not legally enforceable.

41.Many readers will not readily appreciate the distinction in rule of law terms between provisions of regulations and paragraphs in Government guidance; and a statement such as “the law will be updated to reflect these new rules”32 is likely to add to the confusion by suggesting exact correspondence between the “rules” (which are not in fact rules but guidance) and the law.

42.The Committee is also concerned that there appears to have been an unwillingness to distinguish between the wishes of Government expressed informally or in guidance and the requirements of the law, which has been a feature of the Government’s response to the coronavirus pandemic despite this issue having been raised by parliamentary Committees at various stages in 2020 and 2021.33

43.Tables A and B of the Annex contain further examples of where the distinction between advice and legal requirement has not been made.34

44.In one case, that distinction was blurred in the instrument itself. Travel regulations required operators of commercial passenger transport services to provide specified information to outbound passengers, including the statements “you can only travel for essential reasons” and “you can only travel internationally from England for legally permitted reasons. This does not include holidays.”35 These statements, however, acted as a gloss on the legislation rather than being an accurate summary of it: there had never been a prohibition on travel (or leaving home) for reasons that were not “essential”—they only needed to be “reasonable”. Even when the Government legislated on 22 March to restrict international travel it did so by reference to a non-exhaustive list of reasonable excuses, so to say that foreign holidays were “effectively prohibited” was a gloss on the regulations rather than a statement of the law. A statement of the law in a prescribed statutory form must be an accurate reflection of the law as it is. A statement that purports to reflect what the law is, but in fact represents what the Government would like the law to be, is dangerously misleading; and it is troubling that the Department considered that meticulous accuracy in stating the effect of the law “would not have assisted public understanding”.36

The Committee’s view on the distinction between law and guidance

45.The rule of law requires a clear distinction to be made between non-statutory guidance and requirements imposed by law. Whereas non-statutory guidance may influence, the law requires compliance. Law-enforcement officials and other public authorities have neither the duty nor the right to apply or enforce guidance as if it were the law.

46.In the context of the pandemic, where regulations came into force with little or no time to prepare for the new restrictions and where new regulations were made relatively frequently, it was even more important for the guidance to clearly delineate between what was mere advice and what was a legal requirement. The Committee agrees with the Government’s statement that the public must be able to interpret guidance correctly37 and invites Departments to consistently ensure this in future.

47.As mentioned in paragraph 24, the Committee supports the use of guidance in many contexts. Influencing sectoral behaviour through quasi-legislation will very often be more effective than attempting to control through primary or subordinate legislation. That will be particularly the case where the guidance or other quasi-legislation is based on extensive consultation and therefore represents best practice of the sector concerned. But where control is thought necessary, it must be achieved through legislation and not be brought through the back door by way of quasi-legislation presented as if it were actual legislation, or indeed by presenting a misleading gloss on other legislation within a new instrument.

Purporting to use guidance to amplify legislation

48.Another issue the Committee has noted is the practice of attempting to rely on guidance to tighten up wording that is insufficiently clear in the legislation itself. This is not a new issue, but it has taken place relatively often during the coronavirus pandemic. There have been several examples.

49.Regulations creating international travel restrictions identified acceptable places for self-isolation. The list included “other suitable place”. The Committee reported this for defective drafting and commented that legal certainty requires that when duties are imposed on people, they are given enough information to be able to satisfy themselves that they are complying. In simply specifying “other suitable place”, there were neither express criteria for determining suitability nor sufficient implicit indications of what is intended for compliance (or, indeed, non-compliance) with this duty to be reasonably capable of being demonstrated.38 When amending Regulations were made, the Department stated that it would “review its guidance with a view to considering appropriate clarification.”39 The Department later acknowledged that there was no enabling power to issue guidance of this kind and that any guidance would therefore not have legislative effect, leaving the construction of the term “suitable” as a matter for the courts, notwithstanding the Department’s views as expressed in guidance. Nor would public authorities be required to take the guidance into account on ordinary public law principles. Non-statutory guidance issued by the Government of its own motion has neither legislative status nor authority as a matter of administrative law. (It may have some legal effects, for example as evidence of reasonable behaviour for contractual or other legal purposes, particularly if founded on consultation of a kind that makes it evidence of sectoral best practice; but that is a separate matter.)40 Non-statutory guidance cannot be used to fill gaps in the law, which must be sufficiently clear and certain on its face to enable the individuals to whom it applies to be able to comply with it. The expression “suitable place” is simply not sufficiently clear for legislative purposes, and purporting to supplement it with guidance is not a sufficient answer.

50.Regulations providing local authorities with new enforcement powers relating to coronavirus restrictions referred to “essential infrastructure” without defining the term. The Department asserted that the meaning was obvious but suggested that guidance issued in the context of other coronavirus regulations would elucidate if required. However, the Department had no power to dictate the meaning informally by reference to guidance or otherwise. The principles set out in the guidance to which the Department referred should have been distilled into statutory criteria in the Regulations by reference to which readers, including but not limited to local authority officers, would know with a reasonable degree of practical certainty when the powers under the Regulations could or could not be exercised.41

51.In relation to regulations imposing restrictions on gatherings and on businesses in England, the Department considered that a requirement to take precautions was implicit and referred to guidance on “COVID secure locations”. The Committee did not agree that the requirements of the guidance had been incorporated into the regulation, so if that had been desired, it should have been expressly provided for (whether by reference to the guidance or otherwise).42

52.In the context of international travel restrictions and setting the criteria for when a person may leave self-isolation if they have tested negative for coronavirus, regulations specified that a provider must follow “appropriate standard operating procedures”. The Department asserted that guidance on standards could be used to determine the criteria for “appropriate standard operating procedures”. The Committee’s view was that, in light of the enabling powers, the guidance could have been expressly referred to in the Regulations and that this would have given the reader authoritative elucidation of the meaning of “appropriate”. As drafted, the Regulations were unclear and it was not lawful for the Department to deploy the guidance, purely informally, to tighten up the otherwise loose language of the legislation.43

53.Regulations about statutory sick pay provided that a person was eligible if they were “defined in public health guidance as extremely vulnerable and at very high risk of severe illness from coronavirus because of an underlying health condition” and had been advised to follow shielding measures. The Department asserted that the regulation could be read in a purposive way even if the relevant guidance did not explicitly use the expression “extremely vulnerable”. The Committee reported that using the expression “defined in public health guidance as extremely vulnerable” gives rise to a clear expectation that the guidance will define a class by reference to the expression “extremely vulnerable”.44 This example illustrates that where the enabling power allows for cross-reference to be made to guidance and the legislation cross-refers to guidance for elucidation, care should be taken to ensure tight correspondence between the legislation and the guidance.

54.Other regulations made permanent what had been a temporary change enabling schools forums to hold public meetings remotely. The Department proposed to make clear in guidance that schools forums should provide support or alternative arrangements where a person could not attend a remote meeting by telephone or online. As drafted, however, the legislation made no provision for attendance by those without remote access, and the possibility of supplementary provision being made by way of recommendation in guidance (that may or may not be implemented in practice) was not a substitute for a legal right to attend.45

The Committee’s view on the purported use of guidance to amplify legislation

55.A key element of the rule of law is for legislation to be clear. Where legislation has been drafted so as to leave gaps in the law or areas of uncertainty, guidance (and particularly non-statutory guidance) cannot be used to fill those gaps as if it were the law itself.

56.Where the enabling power permits, guidance can be expressly referred to in legislation to provide elucidation on meaning. Care should be taken in such situations to ensure that there is tight correspondence between the legislation and guidance. However, where the enabling power does not permit it, Departments cannot add to the law by referring informally to guidance. Such guidance has not undergone parliamentary scrutiny and has no place in amplifying the law.

57.The Committee notes with approval that Departments have in some cases acknowledged that loose or otherwise defective wording cannot be rectified in guidance and should instead be rectified through amending legislation.46

58.The Committee emphasises that it is not opposed to the use of guidance and other forms of quasi-legislation where appropriate, and where, in particular, the aim is to exercise influence through soft-letter law rather than to control through hard-letter law. But it is essential that the distinction between law and guidance is clear, and that both police officers and others responsible for enforcement as well as those who are required to comply know with clarity and certainty where the law ends and the advisory function of guidance begins.