Guidance and The Rule of Law
There is a difference between law and official instructions. It is the difference between a democracy and a police state. Liberty and the rule of law are surely worth something even in the face of a pandemic.
Those are not my words, but the words of a former Supreme Court judge, Lord Sumption, writing in The Times. He expressed concern that government guidance – which is merely advisory – was being enforced by the police as though it were the law. He said –
“These pronouncements are no doubt valuable as “advice”, even “strong advice”. But under our constitution neither has the slightest legal effect without statutory authority.”
Later, in even stronger language, he told the BBC’s ‘World at One’ –
“This is what a police state is like, it is a state in which a government can issue orders or express preferences with no legal authority and the police will enforce ministers’ wishes.”
The point was taken up by Lord Anderson, a former independent reviewer of terrorism legislation –
“Police in their words and actions need to be clear about the difference between rules and guidance.”
It is not only the police who should keep that distinction in mind – all of us should, whether we are enforcing the law, applying it, or simply doing our best to obey it. And it does not help the maintenance of that distinction when government guidance is given in language suggesting that it is the law. Even less helpful is government guidance which is plain wrong.
The events in Wales over the last few days provide a graphic illustration. The “rules” – i.e. the regulations – are that “No person in Wales may, without reasonable excuse, leave the place where they are living or remain away from that place”. Government guidance, on the other hand, says that “People should not leave home to buy any goods that aren’t essential during the firebreak period”. Not only are the two fundamentally different, but the dichotomy between “essential goods” and “non-essential goods” is an invention of the guidance, and it has put in people’s minds the erroneous belief that goods which are not essential must not be displayed or purchased.
Similarly, the rules permit a supermarket to remain open and to sell anything which you can find in convenience stores, corner shops, newsagents, chemists, or hardware stores – and many other premises listed in Schedule 1 to the regulations. The guidance, on the other hand, persists with its invented requirement that goods must either be “a necessity” or they may not be sold – or even displayed! The guidance says:
“In any case where there may be doubt as to whether a product can be sold (for example as to whether a product for the home is truly a necessity) shops will be expected to use their best endeavours to consider what should be available. Products that can’t be sold, but which are normally located amongst goods that can be sold, should ideally either be removed or sealed off, preferably the former.”
Essential or non-essential?
It is deeply regrettable that the guidance introduced the “essential” or “non-essential” division. It has caused no end of problems. What went awry with the infamous Tesco incident (the refusal to sell tampons) was not that the sales-assistant made the wrong decision as to whether or not the product was essential, it was that he/she applied the wrong test. The only question that needed to be asked was whether the product was one which may lawfully be sold in a chemist. Whether it was essential or not was immaterial.
Undaunted by the confusion it has already caused, the Welsh Government has dug itself deeper into error and made things worse, not better, by introducing even more formidable benchmarks as preconditions to the purchase of goods. In a press conference given by Vaughan Gething yesterday (28 October) the Health Minister referred to the need for an “emergency” or “desperate need” before people should leave their homes to buy things from shops that are lawfully open. It is only a matter to time before we are asked: “what is the emergency?” or “what is the desperate need for this purchase?”
Guidance in a time of crisis
In a time of crisis, when we are faced with life-and-death decisions, I can well understand the instinct to follow government guidance to the letter. The counter-argument, however, is a powerful one: Lord Sumption said in the BBC interview –
“The real problem is that when human societies lose their freedom, it’s not usually because tyrants have taken it away. It’s usually because people willingly surrender their freedom in return for protection against some external threat.”
My preference is not to surrender my freedom; to maintain the distinction between mere advice and law; and to make up my own mind if government advice is sound or suspect. But since there are others who would rather follow government guidance unquestioningly, then the quality of that guidance is self-evidently important. And if a government is to issue guidance explaining its own laws, it is surely imperative that the explanation is accurate.
It is not the law of Wales that that I may only purchase essential goods. Nor , if you will forgive the triple negative, does the law say that supermarkets are not allowed to offer non-essential goods for sale.
Gerald Gouriet QC
Francis Taylor Building
Inner Temple: 27 October 2020
 The Times, 26 March 2020
 30 March 2020
 The Times, 31 March 2020
 The Health Protection (Coronavirus Restrictions) (No. 3) (Wales) Regulations 2020
A more detailed discussion of the regulations can be found via this link: Coronavirus Restrictions in Wales
Stop Press – A transcript of Lord Sumption’s 2020 Freshfields Lecture can be found here: Freshfields Lecture 2020
On a lighter note –
In the depth of the spring lockdown, and for my own amusement and that of a few friends, I filmed a short video making much the same points with regard to the coronavirus regulations and guidance applicable in England. With the caveat that it might be thought too flippant for such a serious subject, the video can be found here: Coronavirus Guidance Video