Coronavirus: the mix of Law and Guidance

The government's response to the coronavirus pandemic has included making law and issuing guidance but what is the relationship between the two? Are they distinct so that law is that which must be obeyed and guidance is only mere recommendation? These are interesting, and far from easy-to-answer, questions.

Law:

The relevant law includes The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (as amended) where legal restrictions are set out. These apply to
individuals (e.g. restrictions under Regulation 5 on gatherings) and businesses (e.g. requirements to close certain businesses - Regulation 4 and Schedule 2). The Regulations define a number of offences and provide for enforcement.  According to the National Police Chief's Council (NPCC) Up to 29 May 2020 a total of 15,552 fixed penalty notices had been issued in England.

Guidance:

Guidance material is available via the government website and covers several areas including Protect yourself and others from coronavirus; Businesses and self-employed people; School openings, education and childcare etc.

Overlap:

Whilst law and guidance appear to occupy distinct domains, the two are not as distinct as may at first appear. Two examples will suffice.

Example 1:

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (as amended) places restrictions on gatherings - Regulation 5 - but the Regulation also provides for exceptions.

Regulation 5 is a far from elegant example of drafting but it permits certain larger gatherings to take place and we find that the "gathering organiser" must carry out a risk assessment which would satisfy the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999.

The gathering organiser must also take "all reasonable measures to limit the risk of transmission of the coronavirus, taking into account the risk assessment."

Then Regulation 5(5) provides - "In determining whether all reasonable measures have been taken to limit the risk of transmission of the coronavirus  .... any guidance issued by the government relevant to the gathering in question must be taken into account."

Example 2:

The legislation has been amended so that, from 13 July, various types of "close-contact" businesses may resume (e.g. nail bars etc).

Delving several layers into the guidance brings us to Close contact services. Here we find -

"Where the enforcing authority, such as the Health and Safety Executive (HSE) or your local authority, identifies employers who are not taking action to comply with the relevant public health legislation and guidance to control public health risks, they are empowered to take a range of actions to improve control of workplace risks. For example, this would cover employers not taking appropriate action to ensure social distancing, where possible.

Failure to complete a risk assessment which takes account of COVID-19, or completing a risk assessment but failing to put in place sufficient measures to manage the risk of COVID-19, could constitute a breach of health and safety law. The actions the enforcing authority can take include the provision of specific advice to employers to support them to achieve the required standard, through to issuing enforcement notices to help secure improvements. Serious breaches and failure to comply with enforcement notices can constitute a criminal offence, with serious fines and even imprisonment for up to 2 years. There is also a wider system of enforcement, which includes specific obligations and conditions for licensed premises."

Further guidance appears on the HSE website - Working safely during the coronavirus (Covid-19) outbreak

Historical note:

The early days of the coronavirus "lockdown" gave us an example of guidance being stricter than the legislation.  The early Public Health Regulations required people to stay at home but with a non-exhaustive list of permitted exceptions including to take exercise. The law in England imposed no restrictions on where someone might go for exercise or for how long they could be out taking exercise. Furthermore, the law did not prevent an individual taking a break during a walk by, for example, sitting on a park bench. The guidance certainly went further and stipulated that exercise should be only once a day. There were examples of the Police trying to enforce guidance as opposed to the law.  (See Institute for Goverment 1 April 2020 - The government must draw a clear line between law and guidance during the coronavirus pandemic).

Other examples of law and guidance:

Mixtures of law and guidance exist in other areas. Worth noting are The Highway Code which may be relied upon in legal proceedings - see the Road Traffic Act 1988 s38

Codes of Practice relating to health and safety at work may be relied upon in legal proceedings - Health and Safety at Work etc. Act 1974 s.17.

Comment:

This post does not purport to be a detailed examination of the relationship between law and guidance but the two are not as distinct as may appear from a casual look.

There are specific areas where legislation gives teeth to either guidance or codes of practice. Even in the absence of legislation making such a link, it seems possible that failure to observe guidance could still be raised in proceedings.

The Health Protection Regulations have been imposed using powers in the Public Health (Control of Disease) Act 1984 as amended in 2008. The Regulations have been issued using the "emergency power" in section 45R.  This device has enabled the making of secondary legislation without any prior parliamentary scrutiny and very minimal post-legislative scrutiny.  It is almost legislation by Ministerial diktat. In practice, perhaps after a short debate, the regulations have been simply approved by Parliament without a vote.

The coronavirus guidance is not subject to any parliamentary scrutiny.

The mixture of law and guidance is complex and, at least in some business situations, the guidance may be found to be much more than mere set of recommendations.