Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020

Lord Anderson of Ipswich Excerpts

Monday 15th June 2020 Lords Chamber

[Lord Anderson of Ipswich (CB) [V]]

My Lords, legal constraints and public health advice each have an important place in influencing behaviour, but I shall speak to the importance of distinguishing between the two.

The initial lockdown regulations of 26 March gave 13 acceptable reasons for leaving the home and stated that this was not an exhaustive list, yet the official guidance told us that we should leave the house only for one of four reasons. Two of those reasons—infrequent shopping for basic essentials and one form of exercise per day—were expressed more narrowly than in the rules. The scrutiny committee was sufficiently troubled by this to write to the Health Secretary about it on 22 April. By then, advice and law had become inextricably blurred in the public mind. The daily press briefing of 3 April ended with these words from the Health Secretary:

“I end with the advice we all know. This advice is not a request. It is an instruction. Stay at home, protect lives, and then you will be doing your part.”


Such simplifications certainly had their effect. A survey conducted in the last days of April revealed that 94% of people believed the 2-metre rule to be a legal requirement, which in England it was not and to this day has never been. More worryingly, 32% of respondents did not know that it was permitted to move to another address because of a fear of violence at home.

As the regulations we are debating came into view, this confusion allowed their liberalising significance to be exaggerated. The Prime Minister announced that from the day the regulations entered into force we would be free to drive somewhere to take exercise. In fact, this was already permitted, as the CPS, the NPCC and the College of Policing—correcting for the early excesses of a few forces—had already recognised in guidance.

I can see why blurring the line between advice and instruction—what the scholarly QC Tom Hickman has called “normative ambiguity”—must have seemed appealing to those responsible for the Government’s messaging, but longer term the practice can be as corrosive, in its own way, as the inaccurate presentation of statistics. Its true dangers were illustrated when the Dominic Cummings affair broke, and an infantilised public were not disposed to see any distinction between the breach of a rule and a failure to follow advice. The ensuing narrative of “they make the law; they break the law” damaged public trust not only in the people who govern us but in the system by which we are governed.

We are more likely to respect both the rules and the guidance if we are treated as grown-ups, capable of distinguishing between them. Let us hope for more of that openness as we fight the pandemic together.