The government must draw a clear line between law and guidance during the coronavirus crisis

Managing a nationwide lockdown was never going to be easy. Understandably, there has been some confusion about what people are allowed to do, and over what the police should be doing to enforce compliance.

Clearer communication from the government and the police – both with each other and to the public – could avert some of that confusion, and ensure that people do not fall into needless anxiety about harmless and lawful conduct.

This would help the authorities retain the trust of the public as they respond to the crisis, shoring up the legitimacy of the government’s social distancing policy and making it more likely that the public voluntarily follow any guidance that does not have the force of law.

The government’s guidance on when to stay at home goes further than the law

The prime minister began the ‘lockdown’ with a televised statement to tell the nation: “you must stay at home.” Yet parts of his statement were couched, carefully, in the future tense. People “will” only be allowed to leave their home for certain purposes, he said: to shop for basic necessities, do one form of exercise a day, to satisfy a medical need, care for someone vulnerable, or travel to and from work where absolutely necessary. He added that the police “will” have the powers to enforce the rules.

Initially, the guidelines for individuals were not backed by legislation – and  some people ignored government advice.  When legislation did arrive, three days after the PM’s address, it said something slightly different. The regulations provided that “no person may leave the place where they are living without reasonable excuse.”

The legislation set out a non-exhaustive list, adding further “reasonable excuses” to those previously set out by the prime minister. The law also permits people to leave home with any reasonable excuse which is not explicitly mentioned. Keeping some flexibility in the scheme makes sense, as it would have been difficult for those who drafted the legislation to think of every real-world situation in which it might be necessary to go out.

Published government guidance remains more restrictive than the regulations. For example, it says that people should only leave home for specified “very limited purposes”. It also suggests that people can exercise only once a day, although in England the law does not say this.  The government advises people, further, to “stay local and use open spaces near home where possible”, rather than drive, but the legislation does not say this either.

The police should use their common sense when applying the coronavirus restrictions

Whether someone has followed government guidelines will often be a decent starting point for asking whether their behaviour is reasonable – the actual legal test. It is only a starting point, though. The legal answer will depend on the application of some common sense to each real-world scenario.

Delivering food to neighbours who are self-isolating is more likely to be reasonable if they have run out and online delivery services are booked up for several days, and less likely if this is not the case.  Exercising for the second time in a day is more likely to be reasonable if there was some unexpected reason the first attempt got cut short, and much less likely if it’s just for fun.

Given the purpose of the legislation, the health risk created by the behaviour will also be relevant. Driving away from a congested area to take exercise is more likely to be reasonable; driving to a busy spot is less so. 

Police forces should be enforcing the law, not the guidance

Ambiguity over the boundary between law and guidance creates three important risks.

First, there is a risk that the police, if they do not properly understand the boundary, act beyond their powers and interfere unlawfully with people’s liberty.

They have powers to enforce the law and maintain public order, but they are not empowered to enforce the government’s guidance where it is more demanding than the law. If police forces do act beyond their powers, they are vulnerable to judicial review (or, in some cases, other types of civil claim). Any overreach also makes it more likely that the regulations themselves will be challenged in court – there is some uncertainty as to whether the restrictions are lawful. 

The second risk is that law-abiding people will see police forces and the government using mandatory language to communicate the guidance and be deterred from lawful, harmless excursions for which they have good reasons.

The third is a longer-term risk that the public loses some of the trust and confidence they have in government in general, and the police in particular.

The watchword of UK law enforcement is ‘policing by consent’. This means, above all, that the police try to get people to comply with the law through explanation and encouragement, rather than force, and recognise that they need to keep the public’s respect and approval for this to work. If public respect falters, that consent is harder to achieve.

It is welcome that the government and police are listening to concerns about enforcement

Ministers, civil servants and the police have all been working in difficult circumstances – drafting legislation at breakneck speed, working out how to enforce it overnight, and trying to get people to ‘socially distance’ before there was time for any of the rules to come into force.

It was inevitable that, in some cases, they would get it wrong. The best response available is to be open to criticism, and then to adapt. Already a cabinet minister has said the police have sometimes gone “a bit further than they should have gone”, the Met commissioner has reminded forces that the use of powers is a last resort, and professional policing bodies have circulated new guidance to  ensure forces adopt a consistent approach.

The government can help by making sure that, in its own communications with the police and with the public, it keeps the boundary between law and guidance clear.

The ultimate objective of these regulations is to make sure that ‘social distancing’ works and is observed for a substantial period. In the vast majority of cases, that will be best achieved if individuals voluntarily follow non-binding guidance and advice. It will not help further that objective if stories of police overreach prompt members of the public to question the legitimacy of the policy, and so to grow weary with social distancing. People are much more likely, in the end, to follow the guidance of authorities they trust.