How is emergency coronavirus legislation made?

When Boris Johnson announced the national lockdown on 23 March, the legislation to back up his instruction to stay at home wasn’t actually published until three days later. For a brief period, therefore, the police were expected to enforce laws (such as against sunbathing) that did not yet exist.

It is the same with the rules against household mixing in Manchester and other parts of northwest England that were announced by Matt Hancock on Thursday night and confirmed by the prime minister on Friday. Although “guidance” was published on the government website on Friday, and updated on Saturday, the actual legislation wasn’t published over the weekend (it should appear on this page).

Sometimes, the difference between guidance and legislation can be significant. The one-metre “plus” rule for social distancing in England is guidance, not law. The guidance in England is that people from different households can gather outside in groups of up to six, while the law allows outdoor gatherings of up to 30 people. (This may have been modified because the police thought it would be too difficult to enforce the lower limit.)

In some cases, politicians are not even aware of the laws that have been published in their name. Hardly anyone noticed, when the original lockdown legislation was published on 26 March, that the government had banned protest. Free expression of views, or going on a demonstration, were not lawful reasons for leaving one’s home. Even now, a protest involving more than 30 people is against the law, unless your lawyer can persuade the court that it consisted of several independent groups of 30.

These laws have not been enforced consistently, with the police arresting Piers Corbyn, Jeremy’s brother, at an anti-lockdown protest in Hyde Park, while allowing the much larger Black Lives Matter demos to go ahead a few weeks later.

Most of the emergency coronavirus legislation is in the form of statutory instruments, known as regulations, that have to be signed by a secretary of state – usually Matt Hancock, as his Department of Health and Social Care is responsible for public health. Usually, it is published before it comes into effect – although this has often been a matter of only a few hours. The regulations on face coverings in shops, for example, were published in the afternoon of the day before they came into effect. It wasn’t until then that it was confirmed that the law did not require shop staff to wear face coverings, but by then most shops had already decided for themselves whether staff would wear them.

Statutory instruments are then scrutinised by a committee of MPs. With the Commons in recess until 1 September, any legislation published by the government now will be effective for up to a month before it receives any kind of democratic oversight.

If it seems a haphazard and confusing way to make law, that is because it is. Allowances have to be made for the need to respond to fast-changing evidence, but the messy way this kind of law is made does not help. Late, rushed and often contradictory rules probably contribute to a feeling that the government’s message on coronavirus is unclear.