Teebs, you are indeed correct that Tier 4 is not law. Look on the government website - it even says "guidance" in big clear letters.
Personally, I am going to chat to the other family members that I was making a Christmas bubble with and see what they want to do. If they want to carry on as normal then I will be keeping to my prior plans before Boris advised us. But it certainly isn't law, and there's nothing the police or anyone else can do about it.
The new amendment regulations incorporating Tier 4 restrictions have been published.
LEGAL STATUS OF TIER 4 RESTRICTIONS
Further to my earlier note, here is the actual government document published yesterday:
https://www.gov.uk/guidance/tier-4-stay-at-home
This is "guidance". As such, it does not have force of law. These are not legal regulations. Here are references from two leading law firms that confirm this:
https://www.dentons.com/en/insights/articles/2020/june/1/covid-19-uk-government-guidance
According to Dentons: "It is important to note from the outset that the guidance documents issued are non-statutory i.e. they have no legal standing. They are intended as guides only."
According Norton Rose: "The guidance is non-statutory and therefore has no direct legal or mandatory effect."
Even more importantly, in September 2020 the Financial Conduct Authority brought a legal action against insurers in the construction industry where, among other things, the legal standing of government guidance was brought up.
Sitting in the Queens Bench Division of the High Court (Financial List), Lord Justice Flaux and Mr Justice Butcher found that "Government's advice was "less than mandatory" and "however strongly worded, did not have the force of law".
The case reference is here:
The link to the judgement is here (especially read paragraphs 266-267, 428 and 434-435:
TIER 4 LEGAL STATUS - PART 2
Further to what I wrote above, the government guidance note itself gives the game away. About half-way down the page it says:
If you break the rules
The police can take action against you if you meet in larger groups. This includes breaking up illegal gatherings and issuing fines (fixed penalty notices).
You can be given a Fixed Penalty Notice of £200 for the first offence, doubling for further offences up to a maximum of £6,400. If you hold, or are involved in holding, an illegal gathering of over 30 people, the police can issue fines of £10,000.
And that is it, folks. This is the ONLY action that can be sanctioned by law: meeting in "large" groups. Everything else in "Tier 4" is "guidance".
All these people who rushed to close their shops, and those who are wondering what to do today with the food and drink they ordered ... all this misery is optional.
Referring back to the detailed judgement handed down in September by Flaux LJ and Butcher J, its paragraph 428 quotes an article by Lord Sumption where he describes the sleight of hand played by Hancock/BoJo in March this year when they announced the first lockdown.
They got up in parliament and press conferences and announced on 23 March the introduction of "rules" for the lockdown. Hancock actually said in the House of Commons:
these measures are not advice. They are rules and will be enforced, including by the police
As Lord Sumption clarifies in the article quoted in the judgement, and as the court found, this was not true.
On 23 March, Hancock issued "guidance" only. The "rules" only came into force three days later, on 26 March, when Hancock issued Statutory Regulations (after parliament had safely gone into its Easter recess).
As the court found in September, the "rules" were not enforceable between 23 and 26 March. In fact, there were no "rules", only "guidance" that has no mandatory effect.
Hancock and BoJo are now trying to do the same again now with Tier 4.
Fool me once, shame on me; fool me twice ...
Sorry to disappoint everyone, but at least some of what was initially tier 4 guidance is actually law, as of 0700 today, 20 December. The new regulations are on the first link below. The main regulations, to which most of the amendments relate, are on the second link - although these have not yet been updated to show the amendments.
Having said that, it is worth checking whether anything you want to do really is forbidden by the regulations. There are usually some things in the guidance which do not get made into law.
