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End of England’s hug ‘ban’ highlights confusion over law and guidance

The Guardian logo The Guardian 11/05/2021 Damien Gayle
Photograph: LightField Studios Inc./Alamy Stock Photo © Provided by The Guardian Photograph: LightField Studios Inc./Alamy Stock Photo

Newspapers and news programmes on Monday morning reported that people in England would soon be allowed to hug again.

It was a tremendous feelgood story, one that filled the country with hope that the end of the coronavirus pandemic, and its inhuman restrictions, is in sight.

But here is the rub: there is no hugging ban, and there never has been. As long as they’ve been outdoors, at any point in the past year people in England have had a right to hug whomever they want. But the confusion over what was illegal and what was merely discouraged meant people saw it as a ban.

While hugging has not been banned, legally enforceable regulations did make it more difficult. © Photograph: LightField Studios Inc./Alamy Stock Photo While hugging has not been banned, legally enforceable regulations did make it more difficult.

“Throughout the past year, the government has – probably deliberately – muddled the difference between law and guidance, and social distancing has only ever been guidance,” said Adam Wagner, a barrister at Doughty Street Chambers who has studied coronavirus legislation.

Social distancing guidelines have been in place throughout the pandemic, advising people to maintain a specified distance – usually 2 metres – between themselves and others to minimise the possibility of spreading germs.

While hugging has not been banned, legally enforceable regulations did certainly make it more difficult. At points, outdoor “gatherings” or more than two people have been banned, and socialising at home with visitors remains forbidden.

But if people had mixed up the advice, which had the backing of a broad range of experts, for the law, they can be excused. “The government have hardly discouraged this confusion,” Wagner said.

Throughout the pandemic, the government has issued instructions as though they were enforceable rules, when in fact they were not, Wagner pointed out. When Boris Johnson announced the beginning of the first national lockdown in March by instructing the nation to remain indoors, the order had no legal power for three days.

“And that set the mode for the rest of the year,” Wagner said. “The most common example that people think about is exercise once per day, which has never been part of the law. It’s always been the law that you can exercise whenever you want.”

It is not just the public who have been left scratching their heads. Last spring, confusion over the legal status of rules around social distancing and for what reasons people could leave home led to police patrolling parks, scolding people for sitting too close to each other, or doing the wrong kind of exercise. Eventually the College of Policing issued guidance telling officers to only enforce what was written in the law.

Silkie Carlo, the director of the civil liberties group Big Brother Watch, said: “Throughout the pandemic the government has often blurred the lines, sometimes deliberately, between the law and merely its wishes, causing real damage to democracy and the rule of law.

“It’s quite disturbing to see this seem to manifest in huge volumes of favourable media coverage on government lifting a hugging ban that literally doesn’t exist. It would be extremely absurd if it did exist.”

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