Law or guidance? Public health restrictions during the covid-19 pandemic

Graeme Cowie

On 23 March 2020, the then Prime Minister, Boris Johnson addressed the nation with what he described as “a very simple instruction”: “You must stay at home.”

‘Lockdowns’ – as they would become known – were often anything but “simple” in terms of the rules that the public had to follow. The emergency regulations, mainly made under the Public Health (Control of Disease) Act 1984 by the Health Secretary, often allowed for nuanced exceptions, and the nature and extent of the restrictions would change over time and location, sometimes from week to week.

What ‘hard law’ measures were used?

‘Hard law’ refers to binding laws that can be legally enforced by a court.

Hard law was a core component of the UK’s, and most other countries’, response to the pandemic.

Criminal law enforcement

At the core of the government’s response was a relatively orthodox, if drastic, use of state power. Certain types of conduct were either prohibited (such as mixing between households) or mandated (such as mask-wearing in certain settings).

The police were given powers to enforce these requirements (including, for example, powers to break up public gatherings). People who contravened the restrictions could be issued with fixed penalty notices or, in more serious cases, could be prosecuted and fined.

Criminal law and police enforcement provided deterrence: an incentive structure (independent of personal health risks) to comply with the behaviour desired by lawmakers. Using criminal law also signalled to the public how serious and necessary lawmakers considered these behaviour changes to be.

Civil law enforcement

Not all pandemic measures depended on criminal law sanctions for enforcement, at least not all of the time. One example was the requirement to wear a mask on public transport. In January 2022, the UK Government lifted the criminal law sanctions for failure to wear a mask.

Some transport operators, including Transport for London, continued for a while to impose the mask requirement as a ‘condition of carriage’, relying on the civil law as the method of enforcement. Passengers could (in theory) be denied access to the capital’s trains, buses and trams if they didn’t wear a mask and weren’t otherwise exempt.

Trade unions criticised the reliance on conditions of carriage to enforce pandemic mitigation measures, arguing this placed the onus of enforcing public health regulations onto rail staff, and said compliance could not be guaranteed without police back-up.

What ‘soft law’ measures were used?

Some pandemic mitigation measures did not rely on either the criminal or civil law, and instead depended on government guidance (sometimes referred to as ‘soft law’): publicly endorsed but legally unenforceable explanation, education and encouragement.

Guidance is often used where creating a scheme of precise legal rules would:

be too difficult
be hard to enforce
have no significant additional impact on human behaviour or outcomes

Used well, guidance can provide reassurance and clarity, provided that it does not directly contradict what the law says.

Before the pandemic, executive agencies like the (former) Public Health England were mainly responsible for the crafting and communication public health guidance. However, during the pandemic, messaging was often broadcast more directly by government departments and ministers, on the gov.uk website and through televised press conferences.

An example of guidance was the changing policy in England on social distancing. The so-called ‘two-metre rule’ and its successor, the ‘one-metre plus rule’, expected people not to gather in close proximity with those from other households where it was avoidable. Both ‘rules’ were government guidance: statements of public health advice not included in the English regulations, either as they applied to individuals or (directly) to those responsible for premises.

Were there problems with using a mixture of approaches?

Regulations, guidance and other measures (including financial interventions like furlough) coexisted throughout the pandemic, and were used in different ways at different times in different places to incentivise and discourage certain behaviours. This flexible ‘toolkit’ of policy levers allowed the administrations in all four parts of the UK and other public bodies to adapt their approaches in response to evolving public health evidence and advice.

However, this mixed approach also caused problems. It was not always made clear in public health messaging which ‘rules’ were mandatory and which were merely advice. Both were often referred to interchangeably in government communications.

Very early on in the pandemic, there were also instances of the police and local authorities misunderstanding the scope of the regulations they were asked to enforce.

One infamous early example concerned convenience stores, which legally could remain open, even during lockdowns. Several premises were told (incorrectly) that they could not remain open while selling chocolate easter eggs (as these were ‘non-essential’ goods).

The speed and frequency with which new and revised rules came into force created significant internal challenges for law enforcement agencies.

What was the interaction between the pandemic laws and guidance?

It was also not always as clear-cut as saying that ‘laws’ were mandatory and ‘guidance’ was optional. For instance, lockdown laws framed the core obligation on individuals as being not to leave or be outside their home “without a reasonable excuse”. The regulations listed examples of what a reasonable excuse could include but were deliberately not exhaustive.

In practice, that meant the broader factual context, including government guidance, could be taken into account when determining what was “reasonable”, and therefore lawful, conduct.

There were several instances during the pandemic when the government issued guidance ‘clarifying’ that a lockdown restriction did not apply to a particular group of people or situation. Commentators, including the barrister Tom Hickman, questioned whether this use of guidance was appropriate, arguing that ministers should have also, or alternatively, changed the regulations themselves.

What are the current views on laws versus guidance?

There is an ongoing debate about how governments should strike the right balance between law and guidance, and between individual liberty and public health imperatives, during public health emergencies. This is not always a straightforward trade-off.

Two particularly difficult examples arising from the covid-19 pandemic included mask mandates and vaccine passports. These measures placed conditions on access to public spaces not (especially) for an individual’s own benefit, but predominantly for the benefit of others who shared those spaces, especially people in clinically vulnerable groups. While the lifting of legal restrictions restored the liberties of the majority, lifting the legal restrictions also often put the immunocompromised in a more difficult situation, as those public spaces became less safe.