123.Legislation is not the only means by which the Government has sought to influence public behaviour during the COVID-19 pandemic. The Government has also prepared guidance, or made statements to the media, summarising the new requirements.
124.Throughout the pandemic there have been instances of the Government misstating the law in these forums, creating confusion for members of the public seeking to comply with the new requirements, and for public authorities tasked with educating the public and enforcing the new rules.
125.Legal certainty is an essential component of the rule of law. In order for people to understand what the law requires them to do, or refrain from doing, the law should be free from ambiguity and uncertainty. Ordinary people must be able to predict with reasonable confidence when and how legal powers can be used against them, on the basis of clear and accessible information.
126.The repeated amendment and revocation of secondary legislation has made it difficult for members of the public to understand and identify the law. This made it all the more important that guidance and media statements accurately reflect the true legal position, yet there was no guarantee they would do so. The consequence has been a lack of clarity on which rules are legally enforceable, posing challenges for the police and local government, leading to wrongful criminal charges, and potentially undermining public compliance.
127.Guidance and media statements have the potential to enhance legal clarity by explaining the law in non-technical language, thus improving its accessibility. However, witnesses identified several instances where Government guidance and ministerial statements failed to set out the law clearly, misstated the law or laid claim to legal requirements that did not exist.
128.On a number of occasions throughout the pandemic:
(a)Government publications and statements did not distinguish between public health advice and legal requirements;
(b)rules were identified by the Government as having legal effect without any law having been made;
(c)ministers assumed a right to issue guidance or legal directions without any delegation of power from Parliament;
(d)public health advice was incorrectly enforced by the police as though it were law; and
(e)public authorities tasked with enforcing the COVID-19 restrictions misstated, or incorrectly suggested, that guidance had the force of law.
129.We draw attention to five examples below.
130.On 23 March 2020 the Prime Minister announced the first England-wide lockdown in a televised address, stating that “the British people … must stay at home” and that the Government would “immediately … close all shops selling non-essential goods [and] stop all gatherings of more than two people in public”. The following day, the Secretary of State for Health and Social Care, Matt Hancock MP, stated “[t]hese measures are not advice; they are rules. They will be enforced, including by the police”. No such requirements became law until 26 March 2020.
131.The announcement caused confusion about the meaning of the new requirements, with one police force threatening to search individual shopping baskets in supermarkets to check for non-essential items. This was not something the police ever had the legal authority to do.
132.Following the Prime Minister’s announcement, the UK Government’s website was changed to include the following headline rules:
“Stay at home
133.The first instruction was a simplified explanation of a legal obligation, the breach of which was a criminal offence. The second and third instructions were public health advice and not legal obligations. Listing these instructions together, without distinguishing between them, created legal ambiguity and misled members of the public as to what the law required. As Professor Hickman has explained:
“by setting the instructions side by side without distinction, the fundamentally different nature of the instructions was obscured. People well understood that the lockdown was enforced by law … From the perspective of the ordinary citizen, there was no reason to think that the 2-metre guidance was not a rule of law.”
134.Empirical evidence indicates that many people were unaware of the legal status of the Government’s public health advice to keep a 2-metre distance. Researchers at the University of York and the Nuffield Foundation found that 94% of those surveyed thought that intentionally coming within 2 metres of others was prohibited by law.
135.The police may also have been confused as to the status of this advice, prompting Martin Hewitt, Chair of the National Police Chiefs’ Council, to clarify in May 2020 that the 2-metre rule was not a legal requirement capable of enforcement by the police.
136.The first lockdown restrictions made it an offence for a person in England to leave their home without a reasonable excuse, which included the “need … to take exercise”. No limit on the nature or duration of that exercise was prescribed in the legislation, yet Government guidance stated that people could engage in only “one form of exercise a day”.
137.These restrictions were amended on 12 May 2020 to ease certain lockdown rules in England. The Prime Minister stated that individuals were now permitted to “exercise outdoors as often as you wish”, suggesting there had been a change in the law, when there had never been a legal prohibition in England on exercising more than once per day. This led at least one police force erroneously to characterise the ability to exercise outdoors more than once a day as a change in the law.
138.In late July 2020, after an initial period of relaxation, new restrictions were announced in parts of northern England. On 30 July 2020 the Health Secretary tweeted “from midnight tonight, people from different households will not be allowed to meet each other indoors in [named areas in northern England]”.
139.The following day, the Derbyshire Constabulary announced that new restrictions had been introduced and stated:
“You must not: Meet people you do not live with inside a private home or garden, except where you have formed a support bubble (or for other limited exemptions to be specified in law); Visit someone else’s home or garden even if they live outside of the affected areas; socialise with people you do not live with in other indoor public venues – such as pubs, restaurants, cafes, shops, places of worship, community centres, leisure and entertainment venues, or visitor attractions.”
140.Despite this use of obligatory language, these requirements did not become law until five days later, when the relevant regulations came into force on 5 August 2020.
141.On 18 March 2020 the Government announced the closure of schools in England for all except “children of key workers and vulnerable children.” Schools remained closed from 23 March until 1 June 2020, when some primary and secondary school children returned to school.
142.The Coronavirus Act 2020 empowers the Government to direct the closure of schools in certain circumstances. Instead of exercising this power, in March 2020 the Government announced school closures through a series of public communications and press announcements, encouraging schools to prevent pupils from attending (with limited exceptions) and encouraging parents not to send their children to school.
143.The only accompanying law was a series of Notices issued under section 38(1) of, and paragraph 5 of Schedule 17 to, the 2020 Act, disapplying section 444(1) and (1A) of the Education Act 1996, which create offences relating to the failure of parents to secure regular attendance at school of a registered pupil. The effect of these Notices was to decriminalise non-attendance at school, rather than to compel closures or non-attendance.
144.Professor Alison Young, the Sir David Williams Professor of Public Law at the University of Cambridge, told us that such informal, non-legalistic decision-making undermined legal certainty and impeded legal scrutiny, as Government advice was not amenable to judicial review (unlike secondary legislation). In this respect, she considered that legal ambiguity had the perverse effect of shielding Government decisions from legal challenge and judicial oversight.
145.In May 2021 the gov.uk webpage summarising the coronavirus restrictions was updated to include new guidance in response to the spread of the new COVID-19 variant (sometimes referred to as the Indian variant) in parts of England. The webpage stated that “wherever possible, you should try to … avoid travelling in and out of affected areas unless it is essential”.
146.The advice was first changed on 14 May 2021, naming Bolton Metropolitan Borough Council and Blackburn with Darwen Borough Council as the areas affected. On 21 May 2021 this was updated to include Bedford Borough Council, Burnley Borough Council, Kirklees Council, Leicester City Council, London Borough of Hounslow, and North Tyneside Council.
147.This change in the guidance reportedly led to confusion about whether the areas worst hit by the new variant were subject to new legal restrictions.
148.In response, Bedford Borough Council sought to clarify the situation: “Following the national coverage of recently-revised guidance we have met with national officials and confirmed there are no restrictions on travel in or out of Bedford Borough: There are no local lockdowns.” David Greenhalgh, Conservative leader of Bolton Council, also sought to distinguish the new guidance from law, saying that he had been assured there were “no added restrictions coming to Bolton” and “no local lockdown”.
149.Layla Moran MP, Chair of the All-Party Parliamentary Group on Coronavirus, said that:
“Simply updating the government website without an official announcement is a recipe for confusion and uncertainty. Local people and public health leaders in these areas need urgent clarity from the government. It seems crucial lessons have still not been learnt about the importance of clear messaging during a pandemic.”
150.Andy Burnham, Mayor of Greater Manchester, said the Government should issue further clarification on the legal status of the new guidance.
151.On 25 May 2021 the Department of Health and Social Care said that the guidance would be updated to “make it clearer we are not imposing local restrictions”. Instead, under the revised guidance, people were advised to “minimise travel”.
152.The Secondary Legislation Scrutiny Committee has expressed concern that the distinction between legislation and guidance has been unclear throughout the pandemic, citing further examples where Government guidance incorrectly identified rules as having legal effect.
153.Legal changes introduced in response to the pandemic were often set out in guidance, or announced in media conferences, before Parliament had an opportunity to scrutinise them. On occasion, the law was misrepresented in these forums.
154.When people are unable to understand what the rules are, they cannot hope to follow them. Members of the public are entitled to know, and to be correctly advised on, what is legally required of them and what, in the Government’s view, it is socially responsible for them to do.
155.The Government’s use of guidance and statements to the media have in some instances undermined legal certainty by laying claim to legal requirements that do not exist. The Government does not have, and must not assume, authority to mandate public behaviour other than as required by law.
156.The consequence has been a lack of clarity on which rules are legally enforceable, posing challenges for the police and local government, leading to wrongful criminal charges, and potentially undermining public compliance and confidence.
157.Notwithstanding the issues considered above, accurate guidance has an important role to play in informing members of the public and those tasked with enforcing the rules.
158.Dr Joe Tomlinson, Senior Lecturer in Public Law at the University of York, said that Government guidance, if used properly, could enhance legal clarity because it:
(a)made new legal requirements easier to understand,
(b)was capable of being updated regularly with ease, and
(c)had “helped people to figure out [the rules in] their local area”.
159.Professor Hickman agreed: “the Government have communicated quite effectively through guidance. Individuals cannot be expected to read the regulations and laws in their native form. They need to have them translated into an accessible form”. The real problem was “the way the laws have been presented; they have been entirely commingled with advice”.
160.Baroness Hale echoed this sentiment: “the Government must always make a clear distinction between what is law and what is merely advice about how people should be behaving. That is almost the clearest moral to come from this sorry state of affairs”.
161.The essential distinguishing feature between law and guidance is their legal status. As Lord Sumption explained, guidance “has no legal force, save in so far as it coincides with what is in the regulations”; its purpose is “to convey balanced information”. Baroness Hale characterised the distinction in similar terms:
“It ought to be clear to everybody that [Government guidance] is just advice that the Government are giving to all of us. In fact, that advice covers some of the most important things. Of the mantra ‘hands, face, space’, in England, hands and space are not the law but are just very sensible guidance. Face coverings are the law in certain circumstances and people should understand the status of that”.
162.To elucidate that distinction, multiple witnesses proposed straightforward textual amendments to the Government guidance. Dr Joelle Grogan, a Senior Lecturer in law at Middlesex University London, told us that “even simple language changes could significantly help such as, “You must do this as a matter of law”, or “You should do this as a matter of guidance”.” Dr Stephen Thomson, Associate Professor at the School of Law, City University of Hong Kong, said that the guidance has made use of the terms “advice”, “guidance”, “guidelines”, “rules” and “restrictions” interchangeably, in reference to both legal requirements and public health advice, further undermining legal clarity.
163.As at 1 June 2021, the gov.uk webpage for summarising the coronavirus restrictions uses the term “restrictions” to refer to both legally enforceable obligations and public health advice, without making this distinction explicit. For example, the very first paragraph on the webpage refers to the following obligations as “restrictions”: first, that “up to 6 people or 2 households can meet outside” and, second, to “work from home if you can and minimise travel”. The first is required as a matter of law. The latter is a recommendation made as public health advice. Later on the same webpage, “rules” appear as a subset of COVID-19 “guidance and support”.
164.Professor Hickman has argued that Government guidance on coronavirus-related regulations should, at a minimum:
(1)“clearly distinguish information about the law from public health advice”;
(2)clearly and accurately identify “all underlying or associated legal instruments”, including “an accurate link to a copy of the up-to-date law”;
(3)include “information about the law [which is] accurate and complete”;
(4)where the law is too complex to be set out in full, make clear that the account is partial;
(5)“make clear when opinions are offered about the interpretation of the law and the status of such opinions”; and
(6)“should not suggest that instructions are based on law when they are not”.
165.Guidance and media statements are not legislation and should not be presented or treated as such. When used appropriately, however, communication through such methods can enhance access to the law by simplifying legal complexity in a format that is easy for people to digest.
(c)All relevant legal instruments should be identified wherever legal requirements are referred to in guidance, accompanied by up-to-date hyperlinks to the underlying regulations on legislation.gov.uk.
(e)A consistent approach to use of the terms “advice”, “guidance”, “recommendation”, “rules” and “restrictions” should be adopted in all Government publications and public statements, in each case making clear whether the term is referring to obligations required by law, or to public health advice.
167.We recommend that the Government ensures that every statement of Government guidance (including every amendment and replacement text) is separately published (and later archived) in a publicly accessible format. This will make it possible to identify the guidance that applied at any given time and enable each statement of guidance to be compared to the legislation in force at the relevant time.
168.Significant legal changes that affected peoples’ lives, including law that criminalised everyday activity, have occasionally been announced shortly before coming into force. It is clear that there have been occasions during the pandemic when urgent legislation was necessary. New strains of the virus and spikes in the infection rate have made urgent legislative changes a necessary means of restricting the spread of COVID-19.
169.However, there were a number of occasions when apparently non-urgent measures were introduced at short notice. For example, on 3 July 2020, new regulations easing most of the original lockdown restrictions in England came into force. Although these regulations also introduced new restrictions, such as prohibiting certain large gatherings of more than 30 people, they were predominantly a relaxation of existing requirements. They were nonetheless published at short notice, the day before coming into force. Given that the Government was likely to have been considering the necessity of easing restrictions for some time, such regulations could—and should —have been made available to Parliament and the public with more than a day’s notice.
170.In other cases, significant restrictions on civil liberties were introduced at extremely short notice. Examples include:
171.Dr Tomlinson said that last-minute changes to the law had undermined public compliance with the new measures. He thought that there had been “a great deal of confusion particularly in relation to local lockdowns or tiered lockdowns”, given the rapid changes to the rules, and said that “more notice [was] important to allow messages to filter through to the public”. The publication of legal changes at short notice would also have had an impact on some businesses’ ability to adjust how to deploy their workers and maintain continuity.
172.Baroness Hale acknowledged the need for urgent Government action but considered the last-minute changes to lockdown rules problematic. She told us:
“It is quite obvious that [lockdown easing] could easily have been planned in advance. The Government had all those months of the first lockdown in which to decide what they were going to do afterwards. If they had had a fully worked-out framework, much closer to the one that we have now but not necessarily the same in substance, it would have been completely unnecessary to introduce things at such short notice.”
173.Lord Sumption said:
“It is never acceptable for regulations of this complexity, in any circumstance, to be introduced at 20 minutes’ notice … It is a basic characteristic of law that it should be available to the public, and that they should be capable of informing themselves, if necessary, with the assistance of legal advice, as to what obligations are imposed upon them. There is no emergency that justifies the publication of regulations, which cannot be regarded as law in that sense, at that short notice.”
174.The process of laying statutory instruments before Parliament may seem a formality, but it leads in practice to the publication of such legislation and is therefore an official method of giving publicity to it. There have been a number of instances during the pandemic when secondary legislation has not been laid before Parliament until after it has come into force.
176.We acknowledge that there have been a number of occasions throughout the COVID-19 pandemic where legislative measures have been urgently required to limit the spread of infection. That does not, however, justify the publication of significant measures hours—and in some case minutes—before taking effect.
177.There have been a number of occasions where apparently non-urgent measures have been published at the very last minute. On other occasions measures that have introduced significant restrictions on civil liberties, including criminalising everyday activity, have been announced minutes before coming into force. We note, in particular:
178.In other cases, the urgency appears to have resulted from a lack of planning and preparedness by the Government. For example, the Government first advised the public to wear face masks on 11 May 2020. Face coverings then became mandatory in different public places under various sets of regulations made on 15 June, 24 July, 8 and 22 August. In each case, the regulations came into force shortly after publication. Poor Government planning does not justify the publication of regulations at the very last minute.
179.The repeated repeal and amendment of COVID-19 regulations has further undermined legal clarity. Many statutory instruments introduced in response to the pandemic have been amended, and re-amended by further such instruments, sometimes very rapidly. For example:
180.Legislation is often unavoidably difficult for the public to understand. This rapid amendment and re-amendment will have compounded this difficulty. By way of illustration, key parts of the regulations implementing the third England-wide lockdown in January 2021 read as follows in Box 3:
3.—(1) The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 are amended as follows.
(2) In regulation 15(1), for “2nd February 2021” substitute “31st March 2021”.
(3) Schedule 3A is amended in accordance with paragraphs (4) to (12).
(4) In paragraph 2—
(a) in sub-paragraph (2), omit paragraphs (d) and (da);
(b) in sub-paragraph (3)—
(i) in paragraph (a), omit “and (d)(ii)”;
(ii) in paragraph (b), omit “and (d)(iii)”;
(c) in sub-paragraph (4)(b), omit sub-paragraph (i);
(d) in sub-paragraph (13)(e)—
(i) for sub-paragraph (i), substitute—
“(i) later years provision, within the meaning of section 96(6) of the Childcare Act 2006(a), or”;
(e) for sub-paragraph (14), substitute—
181.Amending legislation in this way is common practice, but is ill-suited to the unique circumstances of the COVID-19 pandemic. The restrictions introduced during the pandemic have intruded significantly into peoples’ lives, frequently altering the legality of everyday activity. Where the impact of amending regulations has such a significant impact on ordinary life, legal clarity and certainty are essential legislative goals.
182.One consequence of repeat amendment and revocation has been confusion about what COVID-19 restrictions apply at any given time. One study (conducted when the Tier regulations were in force) found:
183.Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has reported that: “communication about restrictions and regulations was often at short notice and subject to change. Policing faced an extremely difficult situation of fast-paced announcements. At times, the introduction of, and variation to, new legislation and guidance affected the police service’s ability to produce guidance and to brief staff. This inevitably led to some errors or inconsistencies in approach.”
184.The Secondary Legislation Scrutiny Committee has recommended that “an evaluation of the emergency legislation should include consideration of how information about which instruments were superseded or had lapsed could have been provided more effectively”.
185.The National Archives have ensured that all coronavirus amendments are shown in the principal regulations on legislation.gov within 24 hours of laying. We welcome these efforts to enhance access to the law.
186.It is incumbent upon the Government to make the law clear. When enacting new COVID-19 restrictions, the Government should be guided by the principles of certainty, clarity and transparency, and seek to avoid rapid and last-minute changes to the law as far as possible.
187.We recommend that the Government adopts alternative drafting practices to make the mass of COVID-19 regulations more accessible for members of the public and lawyers alike. For every set of amending regulations made, the Government should set out in the explanatory memorandum: (i) the regulations that are being amended; (ii) the substance of the amendments being made; and (iii) the reason for those amendments.
188.We recommend that, whenever amending regulations are made, the Government publishes an accompanying Keeling Schedule setting out the new legislation in full and indicating all the amendments that have been made. This would not have the status of legislation but should be published on legislation.gov.uk alongside the original instrument to facilitate public access and understanding of the changes that have been made to the underlying legislation. This approach would enable members of the public and lawyers to identify present and past law with greater ease.
189.The issues raised in this chapter have all made it difficult for public authorities tasked with enforcing the new rules to understand the law.
190.John Apter, National Chair of the Police Federation of England and Wales, has called on the Government to improve public information on the new restrictions, saying in September 2020:
“constant changes to legislation are becoming the norm. The pressures on policing have increased significantly over recent months … The Government needs to play its part. With so many changes in legislation, an effective public information campaign must be a priority – as there’s been so much confusion for the public and many people don’t know exactly what the law says.”
191.Kirsty Brimelow QC, a barrister at Doughty Street Chambers, told us that inconsistencies between law and guidance were leading the police to misapply the law: “The police should not be acting on the messaging of ministers. We started to see the police acting on announcements from the Prime Minister or the Secretary of State, and again I have seen this in cases. That is a dangerous path to be on constitutionally.”
192.The Crown Prosecution Service reviews every case brought under the 2020 Act. The numbers show that all of the charges for an offence under the Act were wrongly charged in the period between March 2020 and February 2021 (a total of 252 incorrect charges). Charges under the regulations have been less error-prone, with approximately 16% of cases having been incorrectly charged up to February 2021 (a total of 62 incorrect charges).
193.The Joint Committee on Human Rights has concluded that:
“It is astonishing that the Coronavirus Act is still being misunderstood and wrongly applied by police to such an extent that every single criminal charge brought under the act has been brought incorrectly. While the coronavirus regulations have changed frequently, the [Coronavirus Act 2020] has not; and there is no reason for such mistakes to continue.”
194.Councillor Susan Hinchliffe told the Committee:
“the short notice of the new guidance [and] legislation … has been really hard for us as councillors to grapple with. Often when new information has been announced on the news it has been the first time I have seen it … The rules have changed rapidly and frequently. If you are somewhere like West Yorkshire, which has been under local restrictions and national restrictions to varying degrees since the beginning of March, you will have sometimes had changes in rules every week.”
195.One example of apparent miscommunication between central and local government occurred in May 2021, when the gov.uk webpage summarising the coronavirus restrictions was updated to include new guidance in response to the spread of the Indian variant in parts of England. The webpage stated that “wherever possible, you should try to … avoid travelling in and out of affected areas unless it is essential”. The update was not accompanied by an official announcement and local leaders and public health directors were reportedly unaware of it.
196.The Secretary of State for Work and Pensions, the Rt Hon Therese Coffey MP, said the Government had been “working in close contact” with affected areas and she was “surprised to hear that people think this has come out of the blue – it hasn’t”. However, Dominic Harrison, Director of Public Health for Blackburn with Darwen Borough Council, said the affected areas “were not consulted with, warned of, notified about, or alerted to this guidance”. Andy Burnham said that issuing the advice without warning was a “major communications error” which had a “major effect on people’s lives”.
197.A lack of notice of new measures, combined with repeated amendment and revocation of secondary legislation, has made it difficult for public authorities to prepare for, and advise their residents about, changes to the law. This has made it all the more important for guidance and ministerial statements to reflect accurately the true legal position, yet this has regrettably not always been so.
198.During the COVID-19 pandemic different rules have applied in different parts of the UK. Some degree of divergence in the laws applying across the UK was inevitable, given the geographic impact of localised transmission—to which the response at times was the use of different tiers in different areas—and the fact that health is devolved in Scotland, Wales and Northern Ireland. Witnesses told us that this divergence has, however, undermined legal clarity.
199.Dr Tomlinson said:
“as we saw more and more tiers and zones being brought in, in different nations but also within those nations, the rules became increasingly more complex … it became increasingly difficult to communicate what the rules were. That is a very good example of why, in developing a policy response to these kind of issues, you need public health experts and policy experts such as economists, but you also need people who are expert in developing rules that are clear, simple and manageable for the general public and are easy to comply with.”
200.Professor McHarg said that the Government has, on occasion, failed to distinguish between COVID-19 requirements applying in England and those applying throughout the UK. She noted, for example, “the shift from the “stay at home” message to the “stay alert” message [which] caused big problems because it was not made clear that this applied to England only rather than to the other nations”. Dr Grogan said the Government needed to distinguish “consistently, clearly and with transparency between Scotland, England, Wales and Northern Ireland for anyone listening to the news”.
201.The UK Government has also announced significant legal changes in England during press conferences broadcast throughout the UK. For example, the third national lockdown in England, which placed all of England in Tier 4, was announced on a BBC news segment broadcast throughout the UK, featuring the Prime Minister standing in front of a Union Jack. This may have created the impression that the legal changes applied throughout the UK when they extended only to England.
204.We recognise that most members of the public have been adhering to the law despite the various difficulties identified in this Chapter. Professor Susan Michie, Professor of Health Psychology and Director of the Centre for Behaviour Change at University College London and member of a SAGE sub-committee, said in January 2021 that “[w]hen you look at the data, it shows that almost 90% of people are overwhelmingly adhering to the rules”.
125 (David Allen Green), (Raphael Hogarth), (Kirsty Brimelow QC), (Lord Sumption), (Paddy Tipping) and (John Apter). See also written evidence from Big Brother Watch (), written evidence Mr Charles Holland (), written evidence from T Eccles (), written evidence from Michael Gardner (), and written evidence from Professor Emeritus Clive Walker, Rebecca Moosavian and Dr Andrew Blick ()
126 See, for example, Prime Minister Boris Johnson, Speech on coronavirus (COVID-19), 23 March 2020: . Public health advice, including to shop “as little as possible” and to undertake only “one form of exercise per day”, were set out by the Prime Minister in the same statement as legal requirements, such as leaving home only for specified purposes.
127 See, for example, Matt Hancock (@MattHancock), tweet on 30 July 2020: [accessed 16 April 2021]. Requirements not yet made in legislation were described by the Secretary of State for Health and Social Care as having immediate legal effect several days before coming into force.
128 Health and Social Care Secretary Matt Hancock, Speech on coronavirus (COVID-19): 3 April 2020 (30 April 2020): [accessed 16 April 2021]. Assertion by the Secretary of State for Health and Social Care that he was issuing “an instruction” related to social distancing that did not have the force of law.
129 (Paddy Tipping, John Apter) some police officers incorrectly understood social distancing requirements to be legally enforceable). See further: Big Brother Watch, Emergency Powers and Civil Liberties (April 2020), p.18: [accessed 2 June 2021]
130 See, for example, National Police Chiefs’ Council, Statistical update on number of lockdown fines given by police (26 June 2020): [accessed 2 June 2021]. National Police Chiefs’ Council incorrectly suggested that social distancing measures were legally enforceable. See also written evidence from Big Brother Watch ()
131 Prime Minister Boris Johnson, Speech on coronavirus (COVID-19), 23 March 2020: [accessed 2 June 2021]
132 HC Deb, 24 March 2020,
133 Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (), regulations 6 and 9(1)(b)
134 ‘Police threaten to search shopping trolleys to check you’re only buying essentials’, Metro (9 April 2020): [accessed 2 June 2021]
135 The original guidance is no longer available, but it is referred to in various sources including: SquareSpace, a screengrab of the original guidance (26 March 2020): [accessed 22 April 2021]; Birmingham City Council, ‘Your wellbeing during COVID’: [accessed 2 June 2021]; Mayor of Greater Manchester (@MayorofGM), tweet on 4 April 2020: [accessed 22 April 2021], Professor Tom Hickman QC, ‘ The use and misuse of guidance during the UK’s coronavirus lockdown’ (15 June 2020): [accessed 16 April 2021]
136 Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 ()
137 Professor Tom Hickman QC, ‘ The use and misuse of guidance during the UK’s coronavirus lockdown’ (15 June 2020): [accessed 16 April 2021]
139 An independent research foundation specialising in education, justice and welfare.
140 Simon Halliday, Jed Meers and Joe Tomlinson, ‘Public Attitudes on Compliance with COVID-19 Lockdown Restrictions’, Interim Report 1 - Law and Compliance during COVID-19 (4 May 2020): [accessed 16 April 2021]
141 ‘Police have no powers to enforce two-metre social distancing, says new official guidance’,
The Telegraph (13 May 2020): [accessed 2 June 2021]
142 Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (), regulation 6(2)(b)
143 Cabinet Office, Guidance: Staying at home and away from others (social distancing) (1 May 2020, withdrawn 11 May 2020): [accessed 2 June 2021]
144 Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020
146 Hertfordshire Constabulary, Changes in Government guidance (14 May 2020): [accessed 2 June 2021]
147 BBC News, ‘Coronavirus: Visiting people at home banned in parts of northern England’ (31 July 2020): [accessed 2 June 2021]
148 Matt Hancock (@MattHancock), tweet on 30 July 2020: [accessed 16 April 2021]. See also Daniel Greenberg, ‘COVID in Context – Emergency Measures as a Chapter in The Development of the Rule of Law, Are emergency measures in response to COVID-19 a threat to democracy? Fact and Fiction’ IALS/WFD Digital Conference, 10 Sep 2020: [accessed 23 April 2021]
149 Derbyshire Constabulary, New restrictions introduced for parts of northern England bordering Derbyshire (31 July 2020): [accessed 2 June 2021]
150 Health Protection (Coronavirus, Restrictions on Gatherings) (North of England) Regulations 2020 ()
151 Department for Education, Schools, colleges and early years settings to close (18 March 2020: [accessed 2 June 2021]
153 Notices were issued on 30 April, 1 June and 30 June and 30 July 2020.
154 (Professor Alison Young)
155 Cabinet Office, (COVID-19) Coronavirus restrictions: what you can and cannot do (21 May 2021): [accessed 2 June 2021]
156 BBC News, ‘Covid: Eight Indian variant areas should avoid indoor gatherings’ (25 May 2021): . A screengrab of the 21 May 2021 version of the guidance is available at: Helen Pidd (@helenpidd), tweet on 24 May 2021:
157 ‘Lockdown by stealth: Hounslow and other Indian variant hotspots say there are no local lockdowns or extra restrictions after Government guidance confusion’, Evening Standard (25 May 2021):
158 BBC News, ‘Covid-19: Travel guidance for Bedford creates confusion’ (26 May 2021):
159 BBC News, ‘Covid: Eight Indian variant areas should avoid indoor gatherings’ (25 May 2021): [accessed 2 June 2021]
161 BBC News, ‘Burnham: ‘Major communications error’ over Covid guidance’ (25 May 2021): [accessed 2 June 2021]
162 ‘Ministers back down over limiting travel to English Covid hotspots’, The Guardian (25 May 2021): [accessed 2 June 2021]
163 Cabinet Office,
164 Secondary Legislation Scrutiny Committee, (39th Report, Session 2019–21, HL Paper 200), para 21; Secondary Legislation Scrutiny Committee, (Session 2019–21, HL Paper 177), para 22
165 (Dr Joe Tomlinson)
166 (Professor Tom Hickman QC)
167 (Baroness Hale of Richmond)
168 (Lord Sumption)
169 (Baroness Hale of Richmond)
170 (Dr Joelle Grogan)
171 Written evidence from Dr Stephen Thomson ()
172 The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (), Schedule 1, paragraphs 2 and 6
173 HM Government, Coronavirus (COVID-19) (12 May 2021): [accessed 16 April 2021]. We note that other guidance available on gov.uk does make the distinction between public health advice and the law clear. See for example: Cabinet Office, Coronavirus (COVID-19): Wedding and civil partnership ceremonies, receptions and celebrations (13 May 2021): [accessed 2 June 2021]
174 Professor Tom Hickman QC, ‘ The use and misuse of guidance during the UK’s coronavirus lockdown’ (15 June 2020): [accessed 16 April 2021]
175 Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 ()
176 Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No 4) Regulations ()
177 Study of Parliament Group, ‘Abracadabra law-making and accountability to Parliament for the coronavirus regulation’ (January 2021): [accessed 2 June 2021]
178 Health Protection (Coronavirus, Restrictions) (Protected Areas and Restriction on Businesses) (Amendment) Regulations 2020 ()
179 Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020 ()
180 Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021 ()
181 (Dr Joe Tomlinson)
182 (Baroness Hale of Richmond)
183 (Lord Sumption)
184 It is the process of laying before Parliament which ensures the appearance of regulations on legislation.gov.uk, the only official open-access repository of current legislation; see (5th edition, 2017) p 3, p 135 and p 137. On occasion, publication on legislation.gov.uk occurs shortly before legislation is laid in Parliament.
185 Hansard Society, Coronavirus Statutory Instruments Dashboard (1 June 2021): [accessed 1 June 2021]
188 Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021 ()
189 Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 ()
190 (1) Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Amendment) Regulations 2020 (); (2) Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Amendment) (No. 2) Regulations 2020 (); (3) Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020 ); (4) Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Amendment) (No. 3) Regulations 2020 (); (5) Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Amendment) (No. 4) Regulations 2020 (); (6) Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Amendment) Regulations 2021 (); (7) Health Protection (Coronavirus, Restrictions) (All Tiers and Self-Isolation) (England) (Amendment) Regulations 2021 (); (8) Health Protection (Coronavirus) (Wearing of Face Coverings in a Relevant Place and Restrictions: All Tiers) (England) (Amendment) Regulations 2021 ()
191 ‘Most British adults clueless when it comes to coronavirus restrictions, poll finds’, Independent, (19 October 2020): [accessed 2 June 2021]
192 Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, Policing in the pandemic: The police response to the coronavirus pandemic during 2020 (April 2021), p 2: [accessed 2 June 2021]
193 Secondary Legislation Scrutiny Committee, (39th Report, Session 2019–21, HL Paper 200), para 16
194 Keeling Schedules show the changes that have been made to a document, indicating text that has been deleted and added between two different versions, similar to “track changes” in a Word document. For an example, see: HM Government, General Data Protection Regulation: Keeling Schedule (14 October 2020): [accessed 2 June 2021]
195 Police Federation, New COVID Laws Increase Pressure on Police, (11 September 2020): [accessed 2 June 2021]
196 (Kirsty Brimelow QC)
197 Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 ()
199 Joint Committee on Human Rights, (Fourteenth Report, Session 2019–21, HC 1364, HL Paper 272), para 57
200 (Councillor Susan Hinchcliffe)
201 Bedford Borough Council, Blackburn with Darwen Borough Council, Bolton Metropolitan Borough Council, Burnley Borough Council, Kirklees Council, Leicester City Council, London Borough of Hounslow, and North Tyneside Council
202 Cabinet Office, ; BBC News, ‘Covid: Eight Indian variant areas should avoid indoor gatherings’ (25 May 2021): [accessed 13 May 2021]; A screengrab of the 21 May 2021 version of the guidance is available at: Helen Pidd (@helenpidd), tweet on 24 May 2021: [accessed 13 May 2021]
203 BBC News, ‘Covid: Eight Indian variant areas should avoid indoor gatherings’ (25 May 2021): [accessed 13 May 2021]; ‘Ministers urged to clarify travel advice for England’s Covid hotspots’, The Guardian (24 May 2021): [accessed 13 May 2021]
204 Sky News, ‘COVID-19: People told to avoid travelling into or leaving Indian coronavirus variant hotspots’ (25 May 2021): [accessed 13 May 2021]
205 LancsLive, ‘Blackburn, Darwen and Burnley health officials ‘not consulted or warned’ over travel advice’ (25 May 2021): [accessed 13 May 2021]
206 BBC News, ‘Burnham: ‘Major communications error’ over Covid guidance’ (25 May 2021): [accessed 13 May 2021]
207 (Dr Joe Tomlinson)
208 (Professor Aileen McHarg)
209 (Dr Joelle Grogan)
210 Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (); BBC News, YouTube video (19 December 2020): [accessed 13 May 2021]
211 BBC News, ‘Covid-19: Act like you’ve got the virus, government urges’ (9 January 2021): [accessed 13 May 2021]