The clarity of the rules

¶13.63. The Inquiry accepts that drafters had to translate complex and diverse policy into law under extreme pressure and at rapid pace. Nevertheless, laws should be clear, precise and unambiguous, especially when criminal sanctions are involved. Evidence received by the Inquiry indicates that there was a growing public confusion regarding the numerous changes to secondary legislation during the pandemic.¹¹¹¹¹¹ David Halpern 1 November 2023 186/1-17 The frequent and complex amendments to coronavirus regulations in all four nations led to uncertainty – both among the public about how to comply and among police officers about enforcement.¹¹²¹¹² Martin Hewitt 9 November 2023 44/11-46/13 This was exacerbated by a reliance on simple, repetitive public health communications that failed to convey the complexities of the underlying regulations (discussed further in Chapter 12: Public health communications, in this volume). Additionally, some powers within the regulations were ambiguous and lacked clarity, making them difficult to understand and apply in practice.¹¹³¹¹³ Martin Hewitt 9 November 2023 21/17-21/24

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¶13.64. The Inquiry identified two main factors contributing to this confusion:

the frequent and complex amendments to a large number of coronavirus regulations; and
the unclear communication of legal requirements and public health advice by all four governments.

The frequency and complexity of changes to the rules

¶13.65. As set out above, legislation often had to be drafted and implemented quickly during the Covid-19 pandemic. There were also frequent and complex amendments to coronavirus regulations in all four nations.

¶13.66. While the Crown Prosecution Service reviewed and commented on several draft regulations in England before enactment, its level of input diminished during the pandemic.¹¹⁴¹¹⁴ INQ000188838_0020 para 98 Gregor McGill (Director of Legal Services at the Crown Prosecution Service since January 2016) informed the Inquiry that, although initial Crown Prosecution Service guidance included detailed summaries of the new laws, the complexity and frequency of amendments made it challenging to keep guidance clear, accessible and up to date.¹¹⁵¹¹⁵ INQ000188838_0021-0022 para 105 For instance, The Health Protection (Coronavirus, International Travel) (England) Regulations 2020 were amended 57 times.¹¹⁶¹¹⁶ In Scotland, The Health Protection (Coronavirus) (International Travel) (Scotland) Regulations 2020 (https://www.legislation.gov.uk/ssi/2020/169/contents) were amended 25 times. In Wales, the equivalent regulations were amended 21 times. Northern Ireland amended The Health Protection (Coronavirus, International Travel) Regulations (Northern Ireland) 2020 (https://www.legislation.gov.uk/nisr/2020/90/contents/made) 38 times from when they were made on 5 June 2020 until they were replaced on 15 April 2021.Show full note Mr McGill noted:

" Over time, the sheer volume of different iterations of the Regulations inevitably meant cases were charged under the wrong version of the Regulations (i.e. those which had been revoked and replaced by new Regulations) and we had to take steps to ensure additional oversight of these cases."¹¹⁷¹¹⁷ INQ000188838_0022 para 106

¶13.67. Notice by the Department of Health and Social Care of "an imminent change was often very short", sometimes only hours before regulations took effect, especially in the initial months of the pandemic.¹¹⁸¹¹⁸ INQ000216925_0020 para 81 On one occasion, new legislation was shared with the National Police Chiefs' Council just 16 minutes before it came into force.¹¹⁹¹¹⁹ Martin Hewitt 9 November 2023 41/12-42/25 The Home Office and the National Police Chiefs' Council frequently collaborated overnight to develop guidance for police officers responsible for enforcing new legislation the next day. Dame Priti Patel MP, Secretary of State for the Home

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¶Department from July 2019 to September 2022, described this process as

¶"suboptimal at every single level".¹²⁰¹²⁰ Priti Patel 9 November 2023 144/12-24 She advocated for a different system for producing and implementing regulations in the future.¹²¹¹²¹ Priti Patel 9 November 2023 145/10-146/4

¶13.68. The position was no better in Northern Ireland.¹²²¹²² Alan Todd 15 May 2024 198/4-11 There were periods during which regulations were not enforced because the Police Service of Northern Ireland needed to provide guidance to officers on how to approach the new restrictions, to ensure consistency and fairness.¹²³¹²³ INQ000339575_0010 para 44

¶13.69. In Scotland, similar issues arose. Professor Susan McVie (Professor of Quantitative Criminology at the University of Edinburgh and a member of the Independent Advisory Group on Police Use of Temporary Powers) observed that police officers struggled to keep up with rapidly changing regulations – particularly as local rules required adjustments in approach across different regions.¹²⁴¹²⁴ INQ000369767_0028 para 25.2. The Independent Advisory Group on Police Use of Temporary Powers was established in 2020 by Police Scotland and the Scottish Police Authority to provide scrutiny of a new 'public health' model of policing and the use of the temporary powers. Enforcing certain regulations, such as quarantine restrictions, was complicated by delays in data-sharing. For example, in June and early July 2020, quarantine checks could not be carried out on passengers arriving in Scotland from overseas because Public Health Scotland officials had not been granted security clearance by the Home Office to access the necessary passenger details.¹²⁵¹²⁵ INQ000273984_0075-0076 para 318 Some regulations were also difficult to enforce. For instance, in late December 2020, travel restrictions were introduced that prohibited movement between Scotland and the rest of the UK.¹²⁶¹²⁶ INQ000369767_0030 para 26.2 While Police Scotland increased its presence along the border between Scotland and England, it refrained from setting up checkpoints or roadblocks, citing proportionality concerns.¹²⁷¹²⁷ 'Covid: Border police patrols to double after travel ban', BBC News, 20 December 2020 (https://www.bbc.co.uk/news/uk-scotland-south-scotland-55385989; INQ000360220)

¶13.70. Similar inconsistencies arose in Wales, where differences in face mask mandates caused particular confusion for travellers. Professor Ann John (Clinical Professor of Public Health and Psychiatry at Swansea University) highlighted an instance where passengers on trains from London to Cardiff were required to wear a face mask until reaching Newport, after which they could remove it. She noted that "it would have been very confusing to people" that a legal requirement changed midway through the same journey, illustrating how jurisdictional differences created practical challenges in compliance and enforcement.¹²⁸¹²⁸ Ann John 1 March 2024 119/9-120/6

¶13.71. Any legislation, be it primary or secondary, that makes provision for criminal offences must be carefully drafted and follow proper consultation with the appropriate bodies, whenever time permits. Proper planning and preparation are essential to ensuring that any future legislative response is timely, coherent and appropriately scrutinised.

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¶13.72. The frequent and complex changes to the rules not only led to confusion among law enforcement agencies but also had a significant impact on the public's understanding of them. A September 2020 survey by the Health Foundation and Ipsos MORI revealed that a substantial portion of the UK public found government Covid-19 guidance unclear, with many individuals uncertain about the current rules and how to adhere to them (as discussed further in Chapter 12: Public health communications, in this volume).¹²⁹¹²⁹ 'Public unclear on COVID-19 guidance as winter approaches', The Health Foundation, 6 September 2020 (https://www.health.org.uk/press-office/press-releases/public-unclear-on-covid-19-guidance-as-winter-approaches; INQ000231590)

Unclear communication

¶13.73. Regulations were accompanied by government guidance designed to provide detailed instructions for people and businesses on compliance. This guidance was published online and was often supplemented or preceded by ministerial statements and interviews.

¶13.74. However, as noted by the National Police Chiefs' Council, guidance issued by all four governments was occasionally inconsistent with, or exceeded, the enacted legislation.¹³⁰¹³⁰ INQ000216925_0020 para 82 This inconsistency, coupled with confusing communications, led to widespread misunderstanding about permissible behaviour.

¶13.75. For example, on 23 March 2020, Mr Johnson announced that people could leave their homes only for "very limited purposes".¹³¹¹³¹ 'Prime Minister's statement on coronavirus (COVID-19): 23 March 2020', Prime Minister's Office and Boris Johnson, 23 March 2020 (https://www.gov.uk/government/speeches/pm-address-to-the-nation-on-coronavirus-23-march-2020; INQ000086759_0003) He specified four reasons: shopping for basic necessities (as infrequently as possible); one form of exercise per day; medical need or helping a vulnerable person; and travelling to work where absolutely necessary. However, the regulations that came into force three days later provided a non-exhaustive list of "reasonable excuses", including reasons not mentioned by Mr Johnson, such as accessing social services, travelling between homes for children of separated parents and fulfilling legal obligations.¹³²¹³² The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, regulation 6(2) (https://www.legislation.gov.uk/uksi/2020/350/regulation/6/made) This discrepancy between Mr Johnson's statement and the legal framework was acknowledged at a subsequent COBR meeting on 16 April 2020, at which Suella Braverman MP (Attorney General from February 2020 to March 2021) observed:

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" On the face of it, the guidance appeared to be stating the legal position and the consequences for those who fail to adhere to that position, but in reality it does not. The guidance was more restrictive than the actual legal position and the actual legal framework. This risked a lack of clarity, a lack of transparency, and of misleading the public."¹³³¹³³ INQ000083827_0007 para 15

¶It is unclear whether this discrepancy arose because the final drafting of the regulations had not been completed when Mr Johnson spoke, or whether his statement was intended as broader public messaging rather than formal legal guidance. Regardless, the differences between public messaging and legal regulations created potential for confusion.

¶13.76. Furthermore, the list of reasonable excuses varied across the four nations, with different amendments made by each government during the first three months of lockdown.¹³⁴¹³⁴ INQ000216925_0020-0021 para 84 As discussed in Chapter 12: Public health communications, in this volume, although subsequent messaging efforts were made to clarify guidance, divergence remained, particularly between the four nations. The delay in aligning public messaging with legal regulations risked misleading the public during a critical period.

¶13.77. An example of differing guidance and regulations concerned outdoor exercise in the spring of 2020. The UK government's guidance stated that people could go outside "once a day" for activities like walking or running.¹³⁵¹³⁵ Guidance on Social Distancing for Everyone in the UK and Protecting Older People and Vulnerable Adults, Public Health England, 16 March 2020 (https://web.archive.org/web/20200316210044/https://www.gov.uk/government/publications/covid-19-guidance-on- social-distancing-and-for-vulnerable-people/guidance-on-social-distancing-for-everyone-in-the-uk-and-protecting-older-people-and- vulnerable-adults; INQ000348029)Show full note However, regulations in England, Scotland and Northern Ireland permitted leaving home for any "reasonable excuse", including unlimited exercise.¹³⁶¹³⁶ The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, regulation 6(2)(b) (https://www.legislation.gov.uk/ uksi/2020/350/made); The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020, regulation 8(4) (https://www.legislation.gov.uk/ssi/2020/103/regulation/8/made); The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020, regulation 5(2)(a) (https://www.legislation.gov.uk/nisr/2020/55/contents/made)Show full note Welsh regulations restricted exercise to "no more than once a day".¹³⁷¹³⁷ The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020, regulation 8(2)(b) (https://www.legislation.gov.uk/wsi/2020/353/regulation/8/made) After the lockdown rules were amended in May 2020, the Cabinet Office issued updated guidance in England, clarifying that people could exercise outdoors as often as desired – underscoring that no legal restriction existed in England against exercising more than once per day, despite earlier guidance.¹³⁸¹³⁸ 'New guidance on spending time outdoors', Ministry of Housing, Communities and Local Government, 13 May 2020 (https://www.gov.uk/government/news/new-guidance-on-spending-time-outdoors; INQ000605483); INQ000573869_0008-0009 In its internal guidance issued in May 2020, the Welsh Government recognised inconsistencies between various guidance documents and that not all guidance accurately reflected the legal position.¹³⁹¹³⁹ INQ000349531_0004 Jeremy Miles MS, Counsel General for Wales from December 2017 to May 2021, said that this was due to the rapid pace of work and amendments to online guidance.¹⁴⁰¹⁴⁰ Jeremy Miles 12 March 2024 176/25-177/2

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¶13.78. Online government guidance often blurred the lines between information from different sources. The Scottish Government's Coronavirus in Scotland website, while linking various pieces of guidance, failed to provide direct links to the relevant regulations or the legislation.gov.uk website. Instead, it used descriptive text that conflated two sources without clearly distinguishing between them.¹⁴¹¹⁴¹ INQ000369767_0034-0035 para 30.4 For example, a webpage entitled 'What You Can and Can't Do', concerning social interactions, combined legal regulations on social mixing with general advice on handwashing, maintaining a two-metre distance and car-sharing – none of which were legally mandated.¹⁴²¹⁴² INQ000573835_0005-0007

¶13.79. While the Inquiry acknowledges the challenges of responding quickly to an emerging health emergency – including that of legislating – the UK government and devolved administrations could and should have done more to ensure that publicly available guidance accurately reflected the law.

¶13.80. Ministers sometimes mistakenly conflated guidance and legislation, which led to public uncertainty and required correction.¹⁴³¹⁴³ Martin Hewitt 9 November 2023 44/11-46/13 Numerous instances arose where ministers were unclear about whether they were stating legal obligations or merely advising against certain activities.¹⁴⁴¹⁴⁴ Martin Hewitt 9 November 2023 44/11-46/13 This ambiguity heightened the risk of misunderstanding regarding the extent of powers and obligations created by the legislation.¹⁴⁵¹⁴⁵ INQ000216925_0021 para 86 Concerns about this lack of clarity were raised at COBR as early as 16 April 2020, with recommendations made to clarify the difference between 'must' and 'may'.¹⁴⁶¹⁴⁶ INQ000083827_0007 para 15

¶13.81. Despite these recommendations, ministerial communications relating to regulations and enforcement remained unclear throughout the pandemic. For example, the day after Mr Johnson announced, on 10 May 2020, that lockdown regulations would be relaxed, Dominic Raab MP (Secretary of State for Foreign and Commonwealth Affairs and First Secretary of State from July 2019 to September 2021) stated on the BBC's Today programme that people could meet both their parents simultaneously if they maintained a distance of two metres.¹⁴⁷¹⁴⁷ 'Coronavirus: Use common sense to see loved ones outdoors – Dominic Raab', BBC News, 11 May 2020 (https://www.bbc.co.uk/news/uk-52612449; INQ000548296) This was later corrected by a UK government statement.¹⁴⁸¹⁴⁸ 'Dominic Raab wrong to claim individuals can meet two people from another household at same time, government admits', The Independent, 11 May 2020 (https://www.independent.co.uk/news/uk/politics/uk-lockdown-boris-johnson-dominic-raab-downing- street-latest-a9507981.html; INQ000548021) When asked about this the following day, Mr Drakeford stated:

" The rules in Wales are that two people can meet providing they observe social distancing, so if one person from a household is going out and meeting another member of their family then under our rules that would be permitted."¹⁴⁹¹⁴⁹ 'This is what First Minister Mark Drakeford said about meeting family members in the park in Wales', Wales Online, 11 May 2020 (https://www.walesonline.co.uk/news/wales-news/rules-meeting-family-members-different-18233506; INQ000414110_0002)

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¶However, the regulations in Wales explicitly prohibited leaving home for a prearranged meeting with people from another household – even outdoors and with social distancing.¹⁵⁰¹⁵⁰ The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (https://www.legislation.gov.uk/wsi/2020/353/made) Mr Drakeford's comments were interpreted in Wales as permitting such meetings, prompting the Welsh Government to clarify that leaving home for pre-arranged meetings was not allowed.¹⁵¹¹⁵¹ 'Coronavirus: Can you plan to meet someone outdoors in Wales?', BBC News, 11 May 2020 (https://www.bbc.co.uk/news/uk-wales-politics-52621321; INQ000573836) Similarly in Scotland, on 11 May

¶2020, Ms Sturgeon announced a change to the guidance on physical exercise, stating that the once-a-day limit had been removed.¹⁵²¹⁵² INQ000369767_0034 para 30.2 While she emphasised that all restrictions remained in place, subsequent media reports misinterpreted this as a change in the law, when, in fact, only the public health guidance had been updated.¹⁵³¹⁵³ INQ000369767_0034 para 30.3 This led to confusion about whether the change was legally binding, despite the law remaining unchanged.

¶13.82. There must be accuracy in government messaging. When ministers indicate that a person 'must' or 'should' do something, the public often interprets this as a legal requirement. As demonstrated above, the response to Covid-19 led to confusion between law and guidance, with instances where government messaging did not accurately reflect the law. In future emergencies, all four governments must carefully distinguish between advice, guidance and law in their communications.

¶13.83. To address issues of clarity and accuracy in communication experienced during the pandemic, it is important in future public health emergencies to ensure that up-to- date regulations and guidance are also easily accessible, including those specific to localities where restrictions may vary. During the pandemic, localised measures in England and Wales – such as tiered restrictions and regional lockdowns – were introduced and amended, often with little advance notice or clear public communication. Ensuring that individuals and businesses can readily access accurate, location-specific legal requirements – without having to navigate multiple complex and frequently changing regulations – would help reduce confusion and improve compliance.

¶13.84. To this end, the UK government and devolved administrations should, in future civil emergencies:

signpost clearly where the most up-to-date and consolidated regulations can be accessed online; and
ensure that accompanying policy and explanatory notes are written in plain language and provide sufficient detail for those affected to understand how the law impacts them.

¶In addition, to enhance clarity and public understanding, the Inquiry recommends that the four governments develop an online portal for future public health emergencies. This portal would serve as a centralised resource where members of the public can easily access up-to-date information on the legal restrictions in their area, along with any associated guidance. Such a system would promote transparency, improve compliance and foster public trust during times of crisis.

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Recommendation 17: A central repository for restrictions and guidance

¶The UK government, Scottish Government, Welsh Government and Northern Ireland Executive should develop an online portal for use in future civil emergencies, where members of the public can access information on the legal restrictions that apply in their area and any associated guidance. This portal should be easily accessible and its content should be written in straightforward and unambiguous language.