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Government guidance on coronavirus continues to confuse advice & law. Such confusion was presumably the reason for media reports over the weekend referring to a ‘2m rule’ as though it was law.
Some examples of such confusion from 1 piece of guidance are considered below. 1/11
Some examples of such confusion from 1 piece of guidance are considered below. 1/11
This is the guidance: https://www.gov.uk/government/publications/staying-alert-and-safe-social-distancing/staying-alert-and-safe-social-distancing.
Early on, a clear mistake. There aren’t a ‘limited set of reasons’ for being outside home. Being outside for any ‘reasonable excuse’ is lawful, which ‘includes’ a list of examples (reg 6(2)). IE expressly *unlimited*. 2/11
Early on, a clear mistake. There aren’t a ‘limited set of reasons’ for being outside home. Being outside for any ‘reasonable excuse’ is lawful, which ‘includes’ a list of examples (reg 6(2)). IE expressly *unlimited*. 2/11
The error is compounded by being repeated at a later point (below).
NB this isn’t a contentious reading of these provisions. Plenty of other lawyers have pointed out that these reasons are non-exhaustive. Govt legal advice has presumably not been followed here. 3/11
NB this isn’t a contentious reading of these provisions. Plenty of other lawyers have pointed out that these reasons are non-exhaustive. Govt legal advice has presumably not been followed here. 3/11
Later, the guidance states that one reasonable excuse is to move house ‘in line with the government’s guidance’.
There is no duty to comply with guidance regarding this reasonable excuse (reg 6(2)(l)). 4/11
There is no duty to comply with guidance regarding this reasonable excuse (reg 6(2)(l)). 4/11
Regarding outdoor sports, the guidance states people ‘should’ only use facilities alone/ with household/ 1 other person. So does ‘should’ here refer to the law - since these provisions are in the regs? But then ‘should’ is also used regarding 2m distance - not in the regs. 5/11
‘Should’ is an ambiguous word, suggesting some sort of duty. Here, it may suggest that the 2m advice is in fact a legal requirement. Otherwise, that the limits on who can accompany you are advisory only. Unless you know the law, you’ll be confused one way or other. 6/11
Difficulties with the word ‘should’ continue in the section on work, where it’s twice stated you ‘should’ travel to work in certain circumstances. This suggests some sort of obligation to do so, whether legal or otherwise. (Otherwise, why not say ‘can’ or ‘may’?) 7/11
We know the Govt is keen to encourage people to return to work. The language here is presumably used to suggest there’s some form of civic duty to return to work, despite whatever misgivings you may have. 8/11
The use of language in the guidance chimes with that used by ministers. ‘Civic duty’ has been used to describe use of the testing app & the avoidance of public transport. Meanwhile, we’re asked to use ‘common sense’, rather than rely on the letter of the law. 9/11
Such mixed messages aren’t accidental. Govt guidance has consistently conflated law & advice. Some in Govt clearly want advice to *appear* like law, so people are more likely to follow it, while avoiding making the Govt look draconian. 10/11
But this is a dangerous game to play. Sometimes the Govt may want it to be clear what the law is & isn’t. It’s harder to ease the lockdown if people are confusing the two. And these drastic measures depend on consent. Deceiving the public could backfire. 11/11
