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

The use of law and guidance in a public health emergency was one of the issues explored by the Independent Commission on UK Public Health Emergency Powers. The Commission, chaired by the Rt. Hon. Sir Jack Beatson FBA and supported by the Bingham Centre for the Rule of Law, conducted an intensive review of the constitutional and rule of law dimensions of the UK’s Covid-19 response and emergency powers framework. Neither the UK nor Scottish Covid-19 Inquiries are focussing on these aspects of the pandemic response, and so the Commission was launched to fill this gap. Its report was published last spring and makes 44 recommendations for changes in law, policy, practice and procedure.

This blog post highlights some of the key themes that emerged from the evidence the Commission received on the use of law and guidance in a health emergency, before outlining the Commission’s key relevant recommendations.

Before going further, there are two different types of government guidance that it is important to distinguish between: guidance which seeks to explain the law, and guidance which gives non-binding public health advice. In this blog post I mainly discuss the latter.

Summary of evidence received by the Commission

Generally, those who gave evidence to the Commission considered that a public health emergency in the UK will require the use of both legislation and non-binding public health advice, but the question of where the balance should be struck is context dependent. Factors to be considered include the nature and severity of the public health threat, what the public are being asked to do, and what the public sentiment is around compliance.

There was some nuance among this general consensus. By and large, the public health professionals to whom the Commission spoke emphasised that the preference within public health is not to use coercive legal tools to enforce public health restrictions. Instead, they encouraged the use of non-binding public health advice to influence behaviour through encouragement, consensus, explanation, dialogue, and engagement with local communities. Professor Sir David Nabarro, Co-Director and Chair of Global Health at Imperial’s Institute of Global Health Innovation and Special Envoy on Covid-19 for the World Health Organization, gave written evidence to the Commission where he stated that:

People (meaning all people) need to be able to perceive that they are seen, by authorities, as partners in outbreak responses always. Communication must reflect that… From my perspective, mandates (for how people behave or for specific preventive interventions like vaccination) should only be used as a last resort.

Some witnesses expressed a contrary view, at least in the case of pandemics. The Commission heard from a former member of government during the Covid-19 pandemic who considered that law, rather than public health advice, should be used to set restrictions in a pandemic, even though he favoured the use of advice rather than law in other situations. He gave two reasons for this position. First, he took the view that during the Covid-19 pandemic people did not like ambiguity around what they should or shouldn’t do and wanted the certainty that a legal rule provides, particularly when it came to serious matters like whether to visit an elderly relative. Second, he thought that detailed parliamentary scrutiny of legislation helps ensure that prohibitions are clear and coherent. Public health advice may not receive a similar level of review before publication.

The question of whether law or public health advice should be used to implement restrictions is intimately tied to the question of whether and how public health restrictions should be enforced. When witnesses were asked where the balance should lie between the use of law and public health advice, many talked about whether public health restrictions should be legally enforced, as there is an expectation that if a public health intervention is underpinned by the law then there will be consequences and sanctions for breaching that law. This means that, in asking whether public health restrictions should take the form of law or public health advice, one also must ask whether it is appropriate for breaches of those restrictions to be enforced, what that enforcement should look like, and who should carry it out. These are questions with complex answers, and Commissioners agreed with comments made by Dr Fu-Meng Khaw, National Director of Health Protection and Screening Services and Executive Medical Director at Public Health Wales, who advised that there is no “right or wrong” answer as to whether emergency public health measures should be underpinned by criminal law. Rather, a careful judgment must be made based on the context of the emergency and the restrictions being implemented.

Witnesses also strongly emphasised the need for the distinction between law and non-binding public health advice to be clearly communicated. One of the recurring problems raised by witnesses was that government statements during Covid-19 failed to clearly distinguish what was the law and what was public health advice. This caused confusion amongst members of the public as to what the law actually was, and negatively impacted the rule of law in a number of ways.

First, by presenting public health advice or government interpretations of the law as though they had legal force, the UK government blurred the line between the executive and the legislature. The Commission heard in oral evidence that this executive undermining of legislative functions caused consternation in the House of Lords. Lord Blencathra explained that Peers were “very annoyed” by ministers making comments that Peers thought did not reflect the law and was not what they voted for.

In addition, the lack of clarity in government messaging caused rule of law problems in enforcement. In its written evidence to the Commission, the Police Foundation stated that “[t]he distinction between legal obligation and guidance was at times ambiguous and presented a challenge both for the public and the police officers”. Public health advice is not enforceable, and the police should not have been sanctioning people for failing to comply with government guidance that had no legal underpinning. Nonetheless, “differences between the lists of ‘reasonable excuses’ for leaving home provided for in law and guidance” led to concern among police forces that “they had sometimes tried to enforce advice rather than the letter of the law”. The rule of law problems caused by the wrongful enforcement of public health advice were highlighted by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, who emphasised that it “is essential that the police are seen to be enforcing the criminal law, and not appearing to act as the coercive agents of ministers… nothing must be allowed to be done which leads the public to believe ministers can criminalise actions by edict then enforced by the police”.

A failure to distinguish between law and public health advice can also have a negative impact on levels of compliance. The Commission received written evidence from Professor Joe Tomlinson, Professor Simon Halliday and Dr Jed Meers of the University of York, who conducted a large-scale study of how the public “perceived and responded to Covid-19 ‘lockdown’ law and guidance”. Their study found that the “law/guidance distinction mattered to compliance” as people were “more likely to comply with a lockdown rule if they thought it had the status of law and was not just guidance”. Another paper that Professor Tomlinson, Professor Halliday and Dr Meers published with two colleagues concluded that higher levels of compliance with legal rules occurred partly because “people confer legitimacy on law and legal authority”. While this finding may tempt future governments to portray public health advice as if it had the force of law in order to try and engender compliance, the researchers warn that “guidance which itself misrepresents the law or is communicated in a way that seems to misrepresent the status of certain rules risks having long-term negative effects on the legitimacy of the law and so of legal compliance”.

The Commission’s recommendations

After discussing the evidence the Commission received, Commissioners made five recommendations relating to the use of law and guidance during a pandemic.

First, on the use of criminal law to underpin public health restrictions, the Commission advised that:

In deciding whether emergency public health measures should be underpinned by criminal law, a careful judgement should be made taking into account the threat level, what the public are being asked to do, and what the public sentiment is around compliance and enforcement. The necessity of enforcement and the means by which it is done should continue to be monitored over the course of the emergency response.

Second, the Commission recommended that “governments should consider as an integral part of policy planning which public health interventions should be given a legal basis, which should only take the form of public health advice, and how that distinction can best be communicated”.

Third, when considering how to clearly distinguish between law and public health advice, the Commission endorsed five suggestions made previously by the House of Lords Constitution Committee during the Covid-19 pandemic:

(a) Guidance should clearly distinguish information about the law from public health advice. It should not suggest that instructions are based on law when they are not. (The Commission noted that guidance produced in other contexts (e.g. the Highway Code) clearly distinguishes between parts that are mandatory and those that are not, and could be used as a model.)

(b) Where guidance provides information about the law, this should be accurate and complete. Where the law is too complex to be set out in full, guidance should make clear that the account is partial.

(c) All relevant legal instruments should be identified wherever legal requirements are referred to in guidance, accompanied by up-to-date hyperlinks to the underlying regulations on the relevant government website.

(d) Guidance should make clear when opinions are being offered about the interpretation of the law, including a clear statement of the source and status of such opinions.

(e) A consistent approach to use of the terms “advice”, “guidance”, “recommendation”, “rules” and “restrictions” should be adopted in all government publications and public statements, in each case making clear whether the term is referring to obligations required by law, or to public health advice.

Fourth, the Commission explored the circumstances in which guidance should be given an express statutory basis, and concluded that:

If governments issue guidance that is relevant to the interpretation of emergency public health legislation, or how it should be applied by enforcement bodies, such guidance should ideally have an express statutory basis and in any event be laid before the legislature when made and amended. Definitions that affect the scope or application of the law should always be in the legislation itself.

Finally, the Commission discussed the use of implementation guidance for frontline professionals, and recommended that:

Where time allows, professional bodies representing frontline workers, such as the police and public health officials, should develop implementation guidance in collaboration with lawyers. If it is not possible for collaboration to happen in advance of implementation guidance being produced, then small and nimble working groups should be set up to review the guidance, with representatives from the relevant professional bodies.

Conclusion

In sum, future public health emergencies in the UK are likely to require the use of both legislation and non-binding public health advice, but the question of where the balance should be struck is context dependent and tied to the extent to which public health restrictions are to be underpinned by criminal sanction. Factors to be considered when deciding whether a restriction should be legally mandated include the nature and severity of the public health threat, what the public are being asked to do, and what the public sentiment is around compliance.

Thought should be given in advance of an emergency as to the appropriate use of legislation and public health advice. Policy planning for future health emergencies should address which restrictions should be legal requirements and which should only be advice. It should also consider how governments will communicate the distinction between law and advice, in order to avoid blurring the two.

Government guidance that is relevant to the interpretation of public health legislation should be presented to the legislature for democratic scrutiny. Where implementation guidance is developed for frontline professionals, this should ideally be developed collaboration with lawyers and professional bodies representing frontline workers.

The Commission’s full report and recommendations can be read here.

This blog post was adapted from the report of the Independent Commission on UK Public Health Emergency Powers. The vital work of the Independent Commission was generously supported by the JRSST Charitable Trust alongside other funders.

Katie Lines

(Suggested citation: K. Lines, ‘Law and Guidance in a Public Health Emergency’, U.K. Const. L. Blog (29th January 2025) (available at https://ukconstitutionallaw.org/))