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COVID-19 and the use and scrutiny of emergency powers Contents

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Chapter 4: Legal clarity and accessibility

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.

Conflict between guidance and law

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.125

128.On a number of occasions throughout the pandemic:

(a)Government publications and statements did not distinguish between public health advice and legal requirements;126

(b)rules were identified by the Government as having legal effect without any law having been made;127

(c)ministers assumed a right to issue guidance or legal directions without any delegation of power from Parliament;128

(d)public health advice was incorrectly enforced by the police as though it were law;129 and

(e)public authorities tasked with enforcing the COVID-19 restrictions misstated, or incorrectly suggested, that guidance had the force of law.130

129.We draw attention to five examples below.

Example 1: announcing the first lockdown (March 2020)

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”.131 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”.132 No such requirements became law until 26 March 2020.133

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.134 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

• Only go outside for food, health reasons or work (but only if you cannot work from home)
• If you go out, stay 2 metres (6ft) away from other people at all times
• Wash your hands as soon as you get home”135

133.The first instruction was a simplified explanation of a legal obligation, the breach of which was a criminal offence.136 The second and third instructions were public health advice and not legal obligations.137 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.”138

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 Foundation139 found that 94% of those surveyed thought that intentionally coming within 2 metres of others was prohibited by law.140

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.141

Example 2: exercising once a day (March and May 2020)

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”.142 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”.143

137.These restrictions were amended on 12 May 2020 to ease certain lockdown rules in England.144 The Prime Minister stated that individuals were now permitted to “exercise outdoors as often as you wish”,145 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.146

Example 3: northern England lockdown (July and August 2020)

138.In late July 2020, after an initial period of relaxation, new restrictions were announced in parts of northern England.147 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]”.148

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.”149

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 2020.150

Example 4: school closures (March 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.”151 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 1996,152 which create offences relating to the failure of parents to secure regular attendance at school of a registered pupil.153 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.154

Example 5: localised guidance in response to new COVID-19 variant (May 2021)

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”.155

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.156

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.157

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.”158 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”.159

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.”160

150.Andy Burnham, Mayor of Greater Manchester, said the Government should issue further clarification on the legal status of the new guidance.161

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”.162 Instead, under the revised guidance, people were advised to “minimise travel”.163

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.164

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.

Proper use of guidance

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”.165

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”.166

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”.167

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”.168 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”.169

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”.”170 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.171

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.172 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”.173

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”.174

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.

166.We strongly recommend that all Government guidance during a public health emergency conform to the following essential conditions to enable people accurately to understand the law:

(a)Guidance should clearly distinguish information about the law from public health advice. It should not suggest that instructions are based on law when they are not.

(b)Where guidance provides information about the law, this should be accurate and complete. Where the law is too complex to be set out in full, guidance should make clear that the account is partial.

(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.

(d)Guidance should make clear when opinions are being offered about the interpretation of the law, including a clear statement of the source and status of such opinions.

(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.

Publication of legal changes at short notice

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.175 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:

• On 14 September 2020, a limit on gatherings of six persons inside and outside domestic dwellings in England came into force.176 The regulations were published 29 minutes before they came into effect.177
• On 26 September 2020, local lockdowns were introduced in certain parts of northern England. The regulations were laid before Parliament after coming into force.178
• On 20 December 2020, London and parts of the south and east of England were placed under ‘Tier 4’ restrictions. The regulations were made, and published, one hour before coming into force. They were laid before Parliament the following day.179
• On 6 January 2021, a national lockdown in England came into effect. The regulations were laid before Parliament the evening before coming into force.180

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”.181 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.”182

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.”183

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.184 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.185

175.A lack of advance notice of legislation has undermined parliamentary scrutiny, transparency and accessibility of the law.

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:

• The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 eased lockdown measures. To the extent that new public health measures were introduced, they were less restrictive than pre-existing restrictions. The regulations were nonetheless published less than 24 hours before taking effect.
• The Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020, which introduced Tier 4 restrictions in London and the south east of England shortly before Christmas 2020, were almost identical to the regulations giving effect to the March and November 2020 lockdowns.

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.

Rapid amendment and repeal

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:

• On 2–3 September 2020, the ‘protected area’ covered by the Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) Regulations 2020 was amended twice in 12 hours.186
• The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 were amended by three different statutory instruments made on 22–23 September 2020.187
• The third national lockdown in England was implemented through regulations188 which amended the ‘All Tiers’ regulations (technically by placing all of England in Tier 4).189
• In addition to the national lockdown regulations noted above, the ‘All Tiers’ regulations were amended by eight further statutory instruments between December 2020 and March 2021, including to start a new easing process in early March.190

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:

Box 3: The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020

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—

Source: Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021 (SI 2021/8)

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:191

• 1 in 5 adults did not know what Tier their area was in;
• only 12% knew the correct amount of time a person is required to self-isolate if they receive a positive coronavirus test result;
• 53% said they did not know whether they were allowed to visit other parts of the UK; and
• 20% said they did not know whether they were currently allowed to visit their local pub.

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.”192

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”.193

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 Schedule194 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.

Challenges for public authorities

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.”195

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.”196

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 regulations197 have been less error-prone, with approximately 16% of cases having been incorrectly charged up to February 2021 (a total of 62 incorrect charges).198

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.”199

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.”200

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 areas201 unless it is essential”.202 The update was not accompanied by an official announcement and local leaders and public health directors were reportedly unaware of it.203

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”.204 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”.205 Andy Burnham said that issuing the advice without warning was a “major communications error” which had a “major effect on people’s lives”.206

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.

Devolution and geographic variation

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.”207

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”.208 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”.209

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.210 This may have created the impression that the legal changes applied throughout the UK when they extended only to England.

202.The UK Government has failed to make it clear when announcements only extend to England. This has caused unacceptable and unnecessary confusion for members of the public throughout the UK.

203.We recommend that all future ministerial statements and Government guidance on changes to COVID-19 restrictions clearly state the geographic extent of the new requirements.

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”.211

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