When the law changes overnight: Advising clients during the coronavirus pandemic

New legislation is being churned out at whiplash pace. Sarah Litchfield, University Secretary and General Counsel, and Stephen Allen, Lawyer, at the University of Surrey, reflect on the rapid legal changes of the Coronavirus Universe.

New legislation is being churned out at whiplash pace. Sarah Litchfield, University Secretary and General Counsel, and Stephen Allen, Lawyer, at the University of Surrey, reflect on the rapid legal changes of the Coronavirus Universe.

In the beginning (of the pandemic)…

Around March 2020, as we all left our offices, laptop in hand, few of us anticipated the scale of what we faced.

Those lawyers amongst us could not have known that we would be grappling with new legislation churned out at a pace not previously seen or imagined.

But one thing didn’t change: we still had internal clients.

And now, more than ever, they needed legal advice.

We knew the law would change, but how, and when?

Before the end of March, there was a national lockdown amid a flurry of guidance, press releases, leaks, and speculation.

The legislature launched into an unprecedented process of legislation by Ministerial directions enabled by The Coronavirus Act.

Using emergency powers under the Public Health (Control of Disease) Act 1984, they were able to legislate at whiplash pace by avoiding parliamentary scrutiny. Challenges to this approach continue to rumble on in the High Court and Court of Appeal today.

Numerous new criminal offences appeared. These would ordinarily need to go through a Ministry of Justice gateway, but had either circumnavigated that process or been fast-tracked. At various times, singing, dancing, and leaving one’s home were illegal.

Our colleagues in the organisations we advise suddenly found their operations frozen, while the legal profession, and country, played catch-up. It was now, more than ever, that lawyers wished they had the three most-joked-about legal tools at their disposal: the magic wand, the crystal ball, and of course the time machine.

Even those of us who are used to the legislative process were left scratching our heads.

Regulations laid over a weekend containing criminal offences could be in force by Monday. The reality of the in-house lawyer became:

  • Manual consolidation of already in-force legislation
  • Pragmatic application of the result
  • Taking speedy, but considered, views on risk.

Added to this was navigation of the guidance which did not always align with the black letter law.

Small wins in the race to catch-up

And so it had begun.

An exhausting race against an invisible legislature.

In the “old normal”, policy intention was clear and, one hoped, consulted on. There was a lead-in time in which any legal kinks could be ironed out, drafting errors corrected and, crucially, parliament could scrutinise new law for any unforeseen undesirable effects.

That was not so in the Coronavirus Universe.

In the initial wave of legal changes from March to May 2020, the first big task was to understand furlough.

Furlough was an imported concept which would soon be the basis of the nationwide Coronavirus Job Retention Scheme. Working with the Association of University Legal Practitioners (AULP) we navigated the various sub-problems on which the law and rules were silent (interaction with annual leave including refusing it, research grants, and bonuses).

We were therefore in the fortunate position of being able to provide timely advice to our clients. This was backed with the comfort of knowing that our position reflected a shared consensus on how the rules applied to the HE sector.

And it’s not yet the end…

It didn’t end in May.

At the time of writing, in November, we have had to advise, again, on legislation laid one afternoon with only one working day between laying and being in force (lockdown 2.0 regs).

A familiar pattern ensued. A number of concepts were familiar, but there were conflicts with guidance, and unfortunate drafting with multi-negatives making provisions impenetrable.

More recently, we have grappled with a mass asymptomatic testing scheme.

This was designed, we were told, to support a Christmas exodus by students, and a subsequent relaxation of rules around the holiday itself. Seemingly onerous contracts with DHSC had to be signed at pace with basic scheme documents not available.

A huge team effort by our AULP colleagues, including liaising with UUK and DHSC, resulted in significant improvements. A huge operational effort by our professional services teams means that the test sites will be up and running on the planned dates.

So the task continues and the return awaits.

While some lesser-used tools in the legal toolboxes may have been sharpened, there is only so much that can be done to provide applied and useful advice at pace. The collaboration of in-house lawyers, facilitated by AULP, has been a godsend.

There is one positive to come out of this trying period: sharing know-how and insights between organisations, via such associations as AULP and AHUA, makes us stronger individually and collectively.

And this can only be good for our students.


Sarah Litchfield is the University Secretary and General Counsel, and Stephen Allen is a Lawyer, at the University of Surrey.