On 23 March 2020, during a televised broadcast to the nation, the Prime Minister announced the Government’s intention to impose an immediate ‘stay at home’ order on the entirety of the UK. During the broadcast it was made clear that these new ‘lockdown laws’ were effective immediately and a failure to comply would result in the imposition of a criminal sanction. Shortly after, and prior to the enactment of any actual (primary or secondary) legislation, the Government published guidance relating to the new laws on their official website. As the pandemic progressed, and legal restrictions were amended, the Government continued to rely heavily on media broadcasts and the production of official guidance documents to communicate with, and consequently control the actions of, the public.
Although advice and guidance have the potential to act as effective communication tools, enhancing legal clarity and ensuring accessibility (particularly in an emergency context), the Government consistently misrepresented the law within their guidance, at times generating widespread confusion and inadvertently undermining public health policy. As the House of Lords Committee on the Constitution reported, on one of a number of occasions throughout the pandemic:
(a) Government publications and statements did not distinguish between public health advice and legal requirements;
(b) rules were identified by the Government as having legal effect without any law having been made;
(c) ministers assumed a right to issue guidance or legal directions without any delegation of power from Parliament;
(d) public health advice was incorrectly enforced by the police as though it were law;
(e) public authorities tasked with enforcing the COVID-19 restrictions misstated, or incorrectly suggested, that guidance had the force of law.
Beyond the immediate crisis-specific repercussions of the Government’s failure to use guidance accurately, the misuse of non-statutory guidance has significant constitutional consequences. Not only does the failure to present the law accurately raise obvious Rule of Law issues, it significantly affects the constitutional relationship between the executive and Parliament.
Regrettably, these consequences are not contained exclusively to an emergency context. As Tasneem Ghazi recently highlighted in relation to the accompanying guidance to the Wildlife and Countryside Act 1981, the trend of misusing guidance to amplify or misrepresent the law has continued post-pandemic. Thus, it is more important than ever to highlight the constitutional dangers of governance by guidance. In this post I will focus on three broad themes: the Rule of Law, executive dominance and individual autonomy.
The Rule of Law
As noted above by the Committee on the Constitution, the Government consistently failed to distinguish accurately between law and non-statutory guidance throughout the pandemic. Frequently, guidance was presented as having the force of law, a breach of which would constitute a criminal offence. Unsurprisingly this generated significant confusion with the public, and created the impression that the criminal law was far more restrictive than it was in reality. This was not easily remedied as without a high level of legal knowledge, it was practically impossible to discern the true legal nature of Government statements.
Numerous incidents could be cited here to evidence this point – for example, during the first national lockdown both Matt Hancock MP (Secretary of State for Health) and the Prime Minister incorrectly stated that individuals buying non-essential items from shops could be prosecuted under ‘lockdown’ regulations. As a result of this mistake, the police incorrectly attempted to impose criminal sanctions on individuals who breached these guidelines.
Additionally, often the manner in which information was presented within guidance documents exacerbated confusion. In their ‘Stay at Home’ headline rules, the Government listed various instructions alongside each other. No attempt was made to differentiate between which rules were legal obligations and which were merely guidelines. Once again, this approach gave the impression that the law was more restrictive than it was.
Not only is misuse of guidance in this manner detrimental from a public health perspective, but it raises significant Rule of Law issues. From a Rule of Law perspective, it is imperative that all laws are easily accessed and understood by the public. This is particularly important when a breach of laws amounts to a criminal offence. It is also key that the police, the body tasked with enforcing criminal laws, can understand the legal regime and apply it accurately without the risk of wrongful arrest or fine. Clearly, the Government failed to present their ‘lockdown laws’ in a clear and accessible manner. Not only did the public become confused, but the police frequently attempted to act beyond their established legal powers, pursued wrongful action, and inadvertently breached the Rule of Law.
The Government’s misuse of guidance in the manner we observed during the pandemic also concentrated power in the hands of the executive. By misrepresenting the true legal position via guidance, the executive was able to control public behaviour without having to formally enact or amend legislation. Although some level of executive control is arguably necessary in an emergency situation, controlling behaviour via guidance is not constitutionally appropriate.
Ordinarily Parliament would have the opportunity to scrutinise new laws at various points throughout the legislative process, holding the executive to account and bestowing democratic legitimacy upon new laws. However, the Government’s misuse of guidance allowed the executive to promulgate new rules, sidelining Parliament and bypassing oversight mechanisms. As Katie Lines notes, by portraying guidance as having the force of law the Government is ‘instituting what is in effect rule by Ministerial decree’. The constitutional dangers of this approach are naturally exacerbated in an emergency context when Parliament is less able to scrutinise new laws and hold the executive to account, restricted as it is by the use of the fast-track legislative procedure.
The misuse of guidance has the potential to undermine constitutional norms at any time, though. Post-pandemic, non-statutory guidance continues to be utilised by the Government to communicate with the public across a variety of different policy areas (see Ghazi’s example cited above). Although the use of guidance is not necessarily constitutionally inappropriate, it is certainly possible that the Government will continue to misuse guidance in the manner previously observed – increasing executive dominance and subverting Parliament’s proper constitutional role. It seems unlikely the Government will willingly relinquish their newfound ability to unilaterally modify existing legal rules, and thus Parliamentarians, and other interested parties, may need to consider supporting legal action to reverse this worrying trend. The House of Lords was previously highly critical of the Government’s use of informal guidance in R v. BAPIO and it is an established precedent that the courts will declare guidance to be erroneous if it misstates the law or contradicts the purpose of legislation.
Breach of Individual Autonomy
Finally, the Government’s approach to guidance during COVID-19 significantly curtailed individual autonomy. Due to the technically complex nature of the legal regulations governing national lockdowns, the vast majority of the population had no choice but to rely on instructions provided by the Government in media broadcasts and guidance documents in order to comply with the ‘lockdown laws’. But due to the confusion created by the Government’s representation of guidance as law, the public were unable to make fully informed decisions about their behaviour. Crucially, the Government’s commentary almost always presented the law as being more restrictive than it was in reality. As Tom Hickman explains, this misrepresentation clearly amounted to over deterrence which during the pandemic meant ‘people restricting their activities and social contact believing the legal risks to be different to or greater than they were’.
Some may argue that breaches of individual autonomy in this manner are justifiable in an emergency, particularly in the context of a public health crisis, but when the imposition of a criminal sanction is attached to non-compliance, the lack of clarity becomes unjustifiable. Furthermore, as Hickman highlights, even a seemingly ‘trivial’ failure to make clear that 2 metre rule constituted guidance, rather than a legal obligation, can have significant social and economic consequences. Individuals may isolate themselves for fear of transmission, seriously impacting their mental health and wellbeing, and some bars and restaurants remained closed due to an inability to maintain a 2 metre distance between customers.
As this post has highlighted, if misused, non-statutory guidance has the potential to undermine the Rule of Law, sideline Parliament and breach individual autonomy. Unfortunately, post-pandemic, it appears as though the Government is keen to continue using such guidance – thus these constitutional consequences will not be contained to a COVID-19 context. As noted, perhaps it is time to support litigation in order to remedy these executive abuses of power and redress the constitutional balance in favour of Parliament. Now there is more time for judicial review, there is no reason now why the Government’s misuse of guidance should remain unchecked.
Kate is a Graduate Teaching Fellow and PhD candidate at the University of Liverpool School of Law and Social Justice. She is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
 Prime Minister Boris Johnson, Speech on coronavirus (COVID-19), 23 March 2020: https://www.
gov.uk/government/speeches/pm-address-to-the-nation-on-coronavirus-23-march-2020; HC Deb, 24 March 2020, col 241