Comparing English and Irish Guidance during the Coronavirus Lockdown – UK Constitutional Law Association

*Editors’ note – this post is part of a series on ‘The Rule of Guidance?’. The other posts in the series will be available here.

Introduction

In March 2020, the government of Ireland and the UK government exercising its responsibility for England, like others across the world, rushed to impose wide-ranging restrictions on many facets of daily life to prevent the spread of Covid-19. Legal restrictions were announced and explained through press briefings and statements of public health advice. Government reliance on these forms of non-statutory guidance to communicate with the public was both necessary and useful. These documents deployed simple, clear language which was widely understood. People could not have been reasonably expected to decipher regulations that had been drafted legalese and were littered with unintelligible cross-references; even seasoned lawyers described them as a “nightmare”. Guidance offered another advantage: flexibility. Most English and Irish regulations are subject to a formal process which requires them to be published in a specific format and laid before Parliament, typically before taking effect. By contrast, non-statutory guidance can be instantly changed by government and accessed by the public.

This blog post compares how the government of Ireland and the UK government exercising its responsibility for England used non-statutory guidance during the pandemic to reinforce two severe intrusions upon peoples’ liberty: the orders requiring people to stay home and to refrain from public gatherings. This comparison shows that the governments in Westminster and Dublin alike used ambiguous normative statements in guidance to ensure that the public complied with measures stricter than the law itself. While the misuse of guidance has been criticised in the UK, this post suggests that the degree to which guidance was universally relied upon shows that it could have been used on its own to impose these policies. Furthermore, I suggest that all non-statutory guidance which affects personal liberty must clearly signpost any relevant legislation and must be automatically subject to some political oversight.

The Elision of Law and Guidance in the UK

In the UK, the main legislative framework for the Coronavirus related restrictions was part 2A of the Public Health (Control of Disease) Act 1984 (PHA). Between March 2020 and June 2021, delegated powers within sections 45B and 45C were used to authorise 100 Statutory Instruments (SIs). Section 45C of the PHA 1984 conferred upon the appropriate Minister powers to create regulations to control or respond to a contamination or infection. Permissible measures included keeping a child away from school or preventing specific gatherings. These powers did not explicitly authorise general restrictions on the population’s liberty, which prompted some disagreement on the lawfulness of the lockdown and whether the Government should have relied on emergency legislation. Eventually, the Government relied on sections 45C(4)(d) and 45G(2)(j) to authorise the restrictions on freedom of movement: together, these two provisions authorised creating regulations which impose special restrictions or requirements that affect peoples’ whereabouts and who they have contact with.

On 23 March 2020, the Prime Minister instructed everyone to “stay at home”, declaring that we would be allowed to leave home for four “very limited” purposes. These purposes were listed as: shopping for basic supplies on an occasional basis; taking one form of exercise per day; providing medical need or care to the ill and vulnerable; and travelling to work only when absolutely necessary. Johnson stated that these were “the only reasons” people would be allowed to leave home and that all social gatherings of more than two people (from different households) would be stopped. He declared that if people did not follow the rules, “the police will have the powers to enforce them”.

The legal basis for this instruction crystallised three days later on 26 March, within the Health Protection (Coronavirus, Restrictions) (England) Regulations (SI 2020/350) (“the English Regulations”). Regulation 6 criminalised leaving one’s home without a “reasonable excuse”, while regulation 7 prohibited physical meetings of two or more persons from distinct households. In subtle ways, legal rules failed to mirror government statements. While the Prime Minister suggested that there were “only” four permissible reasons for leaving home, regulation 6(2) listed at least thirteen excuses. Contrary to government instructions, people were not legally prohibited from regularly or frequently grocery shopping, nor were they banned from undertaking more than one form of exercise. By contrast to the guidance, the law explicitly stipulated that it was permissible to leave home, in order to move house, donate blood, avoid injury, or access critical public services. As the list of excuses were not exhaustively defined by law, people could leave for other excuses, though the authorities would subjectively determine whether this would be “reasonable”. This disparity between the content of guidance and regulations was immediately noticed and clarified by practitioners, including Lord Sumption, Tom Hickman KC, Emma Dixon, Rachel Jones, Kirsty Brimelow KC, and Pippa Woodrow. Despite this, some enforcement officers continued to rely on and unlawfully enforce guidance. Between March 2020 and February 2021, the Crown Prosecution Service (CPS) found that least 252 incorrect charges had been made under the Coronavirus Act 2020, and 62 under the regulations made pursuant to PHA 1984.

Despite affecting the lives of everyone in England, the relevant guidance and regulations were subject to a cursory and belated degree of parliamentary scrutiny. Complying with procedural formalities, the Regulations were laid before Parliament an hour after being signed into law. On 8 April, the Joint Committee on Human Rights (JCHR) explained the content of the Regulations and criticised the “significant inconsistencies in public communication.” Towards the end of April, the Regulations were reported on by the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, though neither objected. It was not until 4 May that they were debated in Parliament. As amendment regulations had already been introduced, the House of Commons debate was long overdue. Four backbench MPs emphasised to the Government that the inconsistent messaging and police enforcement of guidance had violated constitutional principles and “must not happen again”. Mark Harper argued that both regulations and guidance should be published in draft form to ensure “open and transparent debate”, while Andrew Griffiths suggested that all future guidance alluding to legal obligations should footnote the law itself. While most dissenting voices were Conservative, the Government made no concessions: it continuously exploited ambiguity within guidance and made no real concessions ensuring parliamentary accountability. By 2022, five parliamentary committees (the Joint Committee on Human Rights, the Joint Committee on Statutory Instruments, the Constitution Committee, and (jointly) the Secondary Legislation Scrutiny Committee and Delegated Powers and Regulatory Committee) had declared the abuse and misuse of Coronavirus-related guidance to be an affront to the rule of law.

The Elision between Law and Guidance in Ireland

In Ireland, sections 31A and 32B of the Health Act 1947 (“HA”) formed the basis for most Coronavirus-related restrictions and authorised 44 SIs. As some European jurisdictions had already restricted freedom of movement, on 20 March the Irish Government rushed to amend the 1947 Act to clearly establish the legal authority for imposing similar measures. The newly expanded sections 31A(1)(a)-(c) allowed the Government to require people to remain at home and to restrict their travel. But these powers were not invoked right away.

On 24 March 2020, the Taoiseach advised everyone to “stay at home if at all possible”. The public were told that they should only leave home for essential work purposes, to shop for essential supplies, attend medical appointments, care for others or take physical exercise. Gatherings of more than four people from different households were allegedly banned, and people were told to consistently “maintain a physical distance of two metres or more”. Addressing enforcement, Varadkar declared that the presence of park rangers and Gardai would be heightened and that they had “new powers” to intervene. By urging the public to ensure that such powers are not used, he implied that the Gardai were enforcing a legal rule.

Although the Irish Government’s announcement implied that the restrictions came into force from 28 March, no legal rules existed until 12 days later. On 8 April 2020, the Health Act 1947 (Temporary Restrictions) Regulations 2020 (SI 121/2020) and the Affected Areas Order (SI 120/2020) came into effect. Regulation 4(1) prohibited all those living in Ireland from leaving home without a reasonable excuse. Regulations 5(1)-(2) prohibited any person in Ireland from holding any event that was not related to the list of enumerated excuses. While these regulations took effect on 9 April, because of what appears to be a typo, they were only supposed to remain in force until 12 April. On 9 April, amendment regulations were introduced, extending their effect until 5^th May.

Like the UK, Ireland suffered a delay between the announcement of the restrictions and the introduction of legal rules, though this delay was ten days longer. The stay-at-home order was introduced twelve days after government instructions. There were also significant inconsistencies in the content of law and guidance. While the guidance mentioned five excuses for leaving home, Irish regulation 4(2) listed seventeen. Contrary to what the guidance had suggested, there was no legal prohibition against meeting up to four individuals from different households and no law mandating social distancing. But the Irish Government’s emphasis on enforcement powers placed great pressure on the public to comply with the “new measures.” The Irish Policing Authority reported that “a great many more people believe they have been the subject of the use of new garda powers.” The Irish public were highly compliant with public health advice. In April 2020, the Government’s advisory group on behavioural change suggested that there had been “no signs of lockdown fatigue”.

The Irish government was not held to account by the Oireachtas for its abuse of guidance, or its use of regulations. Apart from the formality of being laid before both Houses, the four sets of relevant regulations received no substantive parliamentary scrutiny. This is partly because Ireland does not have any committees that are dedicated to regularly scrutinising delegated legislation (apart from those which concern EU law). Nor were the regulations debated in either House. In May 2020, a Special Committee was established to scrutinise the Government’s response to the pandemic generally. But the Covid-related regulations and guidance were not discussed until 9 September, which was months after the regulations had been repealed. In evidence to this committee, Lord Sumption confirmed the “virtually non-existent” process for parliamentary scrutiny and the inconsistent nature of guidance. But the Special Committee’s final criticisms in October, were fleeting and lacked conviction. In no more than one paragraph [183], it admitted that there was a lack of clarity between guidance and regulations, and subsequently proposed a more transparent approach in future, possibly through sunsetting the regulations, or providing greater notice.

Conclusion

During the pandemic, the Irish and UK governments confounded the public by making it seem that public health advice surrounding staying home and public gatherings had the force of law. Johnson and Varadkar alike implied that the number of permissible excuses for leaving home were few and exhaustive, and that enforcement officers would be looking over peoples’ shoulders. Capitalising upon the public’s reliance on guidance, both governments deliberately suggested that the restrictions on personal liberty were more restrictive than they actually were. At first, this confusion might have led to a high degree of compliance with the restrictions. That guidance was generally followed and unlawfully enforced by officials proves its potential: it could have been used on its own to impose the most stringent limitations on liberty in decades. Indeed, in both England and Ireland, there was a period of time where people stayed home and refrained from seeing their loved ones, relying only on guidance.

The potent effect of guidance proves that further safeguards are needed. As the Constitution Committee and practitioners have suggested, non-statutory guidance must always specify whether instructions are mere advice or backed by legislation. In guidance that explains such restrictions, government departments should reference the relevant laws. These precautions are easy to implement and ensure compliance with the principle of legal certainty. There must also be political accountability. Both regulations and non-statutory guidance which affect the liberty of the population must be reviewed by the JCHR, even if scrutiny occurs after the fact. The relevant guidance, regulations and JCHR report should all be extensively debated in both chambers of Parliament. It is difficult to imagine any topic more worthy of political accountability. 

The author is grateful to Dr Paolo Sandro, Prof Se-shauna Wheatle and James Milton for their insightful comments. All views and errors are the author’s sole responsibility.

Tasneem Ghazi is a PhD student at UCL Laws working on comparative rulemaking.

(Suggested citation: T. Ghazi, ‘Political Accountability for the Abuse of Guidance: Comparing English and Irish Guidance during the Coronavirus Lockdown’, U.K. Const. L. Blog (3rd February 2025) (available at https://ukconstitutionallaw.org/))