The Use and Misuse of Guidance during the UK's Coronavirus Lockdown

Abstract

During the critical phase of the United Kingdom Government’s response to the coronavirus pandemic, between 23 March 2020 and 1 June 2020, the Government relied heavily on guidance published on its official webpage as an authoritative source of instructions and information for the population at large. This article examines the coronavirus guidance in that period and shows how it developed into a powerful sui generis form of emergency regulatory intervention. The article develops a critique of the coronavirus guidance, demonstrating how it elided and obscured the distinction between public health advice and information about legal prohibitions, a phenomenon described as the creation and exploitation of normative ambiguity. This phenomenon meant that the scope of individual liberty was unclear and at times misrepresented. Whilst the coronavirus guidance was drafted to fulfil well-intentioned public health objectives, by implying, even unintentionally, that criminal law restrictions were different or more extensive than they in fact were and by failing accurately to delineate the boundary between law and advice, the coronavirus guidance failed to respect individual autonomy in a fundamental way. The article makes a number of suggestions for ensuring that guidance satisfies minimum standards of clarity and transparency as form of emergency regulation in the future.

Keywords: COVID-19, Coronavirus, Public Law, Judicial Review, Guidance, Transparency, Criminal Law, Lockdown

JEL Classification: K14, K23