On 28 May 2020, the Government launched a national contact tracing scheme in England to identify people who had recently come into close contact with an individual who had tested positive for Covid-19. The scheme uses both manual contact tracing via the NHS Test and Trace Service, and a digital contact tracing app. This report analyses how far the Government's implementation of the contact tracing scheme has complied with the Rule of Law. In particular, we consider how far Government messaging has made clear the different legal statuses of the manual NHS Test and Trace service and the contact tracing app, and how the Government has utilised legal exemptions in the regulations governing contact tracing.
We identify Rule of Law concerns that will be familiar to those who have been following the Government's response to the pandemic. The Government has blurred the line between law and guidance, used non-statutory guidance to expand upon and/or fill gaps in the law rather than passing new legislation, and has failed to make publicly available the information underpinning its policy decisions. A future inquiry may note that these Rule of Law concerns were brought to the Government's attention, in relation to various other Government policies, both before the contact tracing scheme was launched and on multiple subsequent occasions.
Blurring of the line between law and guidance
In September 2020, the Secretary of State used regulations to create a legal duty for close contacts to self-isolate if notified by Test and Trace: The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (SI 2020/1045). No corresponding legal duty was created for people pinged by the NHS app. The use of the app is entirely voluntary, although Government guidance strongly advises close contacts to isolate if the app instructs them to do so. However, the Government has consistently portrayed its guidance as having the force of law, by suggesting that the legal obligation to self-isolate also applies to users of the NHS app.
Using non-statutory guidance to expand upon/fill gaps in the law
Under the Self-Isolation Regulations, it is a criminal offence to breach the legal duty to self-isolate unless a person has a reasonable excuse for the breach. On 19 July 2021, the Government announced that double-vaccinated frontline NHS and social care staff would have a "reasonable excuse" for failing to comply with a notification to self-isolate if they attended work when their absence may lead to a significant risk of harm. However, the Government had no power to specify what would or would not be a reasonable excuse for breaching the legal duty to self-isolate. The Self-Isolation Regulations do not contain any provision allowing the Secretary of State to further define or interpret the meaning of "reasonable excuse", and the Government should not be using non-statutory guidance to try and fill gaps in the law.
The Self-Isolation Regulations also exempt participants in a "testing scheme" from the legal duty to self-isolate. The testing scheme exemption is too widely drafted and leaves too much discretion to the Secretary of State to approve what he considers to be a suitable scheme. The Department of Health and Social Care relied upon the testing scheme exemption to implement a pilot workplace testing scheme that allows some organisations to use daily contact testing as an alternative to self-isolation. That pilot scheme has since been rolled out as established policy. However, it is questionable whether a pilot of a Government policy can properly be considered a "testing scheme", and even more doubtful whether Government policy can be considered a "scheme" once the pilot stage has finished and the policy has been rolled out more widely.
Failing to make publicly available the information underpinning its policy decisions
The workplace testing scheme had a virtually non-existent public profile until mid-August 2021. The lack of public information on the workplace testing scheme arguably breaches the Rule of Law requirement that the law be accessible.