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One area of constant confusion since the lockdown began is the difference between the criminal law rules (where not following them can lead to a criminal conviction) and the government’s guidance (which is advice but not law) /1
Today, the Prime Minister moved between these concepts carelessly, as has been the habit of this govt throughout. The most obvious example is relaxation of the ‘two metre social distancing rule’. This has never been a legal rule in England - it has always been in guidance only /2
Being in guidance is very different as no criminal sanctions can result from breaching guidance. By contrast, face coverings on public transport which the PM said the govt ‘mandate’ is indeed a legal rule with non-compliance leading to a potential criminal conviction /3
Interestingly, the PM also said that “our principle is to trust the British public to use their common sense” and “from now on” they “will ask people to follow guidance on social contact instead of legislation”. That sounds like the law banning certain movement will be lifted /4
But I very much doubt that will involve repealing the face covering law, or the 2-week quarantine law. And knowing this government, the law will be amended but kept on the statute books in some limited form, all with no notice or parliamentary debate /5
Overall, I don’t doubt that imposing the lockdown has been an extraordinarily difficult task. What is the correct balance between law and guidance, carrot and stick? But the govt has not trusted people, really, becuase if it has it wouldn’t have created this confusion... /6
... over law and guidance, which I suspect has been deliberate, to make people confused and reiticent. Perhaps with some kind of behavioural theory behind it. Another possibility is it was a manifestation of constant wrangling within the cabinet over how strict rules should be /7
And then there has been the wide variance in the rules - and guidance - in different parts of the U.K. Some may have been justified because of regional variance over the spread of the virus, but it has undoubtedly created more confusion /8
This isn’t just technical, it is of fundamental importance for the rule of law. People must know what the law is. That this is more difficult in emergencies such as this shows how important it is for govt to explain what is permitted or prohibited and not muddy the waters /9
What can we learn? Well, any broad new criminal laws must be debated and voted on by parliament. This hasn’t happened except weeks after they came into force. And the govt should, for the next outbreak, explain its model for setting law and guidance and set some ground rules /10
This is also a good point - the confusion probably leads to people giving up on trying, probably exacerbated by the Cummings saga https://twitter.com/dispositiondot/status/1275460607970598915?s=20 /11
