Undermining loyalty to legality? An empirical analysis of perceptions of ‘lockdown’ law and guidance during COVID‐19
| Published date | 01 November 2022 |
| Author | Naomi Finch,Simon Halliday,Joe Tomlinson,Jed Meers,Mark Wilberforce |
| Date | 01 November 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12755 |
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Modern Law Review
DOI:10.1111/1468-2230.12755
Undermining loyalty to legality? An empirical analysis
of perceptions of ‘lockdown’law and guidance during
COVID-19
Naomi Finch,∗Simon Halliday,†Joe Tomlinson,‡
Jed Meers§and Mark Wilberforce∗∗
This article substantially extends the existing constitutional and legal critiques of the use of soft
law public health guidance in the UK during the COVID-19 pandemic. Drawing upon the
ndings of a national survey undertaken during the rst wave of the pandemic in June 2020,
itshowshowtheperceivedlegalstatusoflockdownrulesmadeasignicantdierenceasto
whether the UK public complied with them and that this eect is a product of the legitimacy
that law itself enjoys within UK society. Based on this analysis, it argues that the problems with
the Government’s approach to guidance,that have been subjected to criticism in constitutional
and legal terms, may also be open to critique on the basis that they risk undermining the public’s
loyalty to the law itself.
INTRODUCTION
During the COVID-19 pandemic, governments around the world restricted
the everyday behaviours of their populations.1In the UK, some of the rules
restricting behaviour were given the force of law. Other rules were not: they
were placed in ‘guidance’ (a form of soft law). This is not surprising: soft law is
ubiquitous as a modern governing technique,2and it was a natural component
of a mode of ‘virus governance’ in the UK that saw a ‘concentration of
∗Department of Social Policy and Social Work, University of York.
†York Law School, University of York.
‡York Law School, University of York.
§York Law School, University of York.
∗∗Department of Social Policy and Social Work,University of York.The authors are grateful to the
Nueld Foundation and the University of York’s ESRC Impact Accelerator Award fund for funding
this project.We are also grateful to the MLR’sanonymous reviewers for their very helpful comments.
1 T. Hale, N.Angr ist, E. Cameron-Blake et al, ‘Variation in government responses to COVID-19’
Blavatnik School of Government Working Paper 2020: Version 7 at https://www.bsg.ox.ac.uk/
research/publications/variation-government-responses-covid-19 (last accessed 10 May 2021).
2 R. Rawlings,‘Soft Law Never Dies’ in M.Elliott and D.Feldman (eds), The Cambridge Companion
to Public Law (Cambridge: Cambridge University Press, 2015).
© 2022 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1419–1439
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Undermining loyalty to legality?
power in the executive’.3However,the manner of executive’s use of guidance
to regulate public behaviour during the pandemic drew extensive criticism.
Tom Hickman QC, one of the most vocal critics, argues there was a ‘fusion
of criminal law and public health advice’ that led to a ‘sui generis form of
regulatory intervention that sits outside the regime of emergency governance
established by Parliament’.4This approach to guidance, he suggests, ‘failed to
conform to basic principles of transparency and clarity’.5Atthesametime,
there was concern that the likely result was public misunderstanding of the
legal status of the rules and this risked limiting the perceived scope of individual
liberty without any legal basis for such restriction. Such concerns are echoed
by others,6and the House of Lords Constitution Committee also eectively
endorsed this view. In particular, the Committee’s Repor t on COVID-19 and
the use and scrutiny of emergency powers drew attention to how guidance ‘failed to
set out the law clearly, misstated the law or laid claim to legal requirements that
did not exist’, pointing to examples where government publications and state-
ments did not distinguish between public health advice and legal requirements,
where public health advice was incorrectly enforced by the police as though it
were law, and where public authorities tasked with enforcing the COVID-19
restrictions misstated, or incorrectly suggested that guidance had the force of
law.7The report on Rule of Law Themes from COVID-19 Regulations by the
Joint Committee on Statutory Instruments similarly expressed dismay that
‘guidance has been used in the context of the pandemic response in a way
that appears to attempt to impose more severe restrictions than are imposed
by law’ and that there was an apparent ‘practice of attempting to rely on
guidance to tighten up wording that is insuciently clear in the legislation
itself.’8
In this article, we seek to substantially extend the existing cr itiques of the
use of soft law guidance during the pandemic through reporting the ndings
of an empirical study that explored the legal dimensions of people’s responses
to public health restrictions.9Our central nding, based on a national survey
undertaken during the rst wave of the pandemic, is that the perceived legal
status of lockdown rules – ie ordinary people’s beliefs about whether they were
placed in law or guidance – made a signicant dierence as to whether the UK
3 R. Thomas, ‘Virus Governance in the United Kingdom’ in M.C. Kettemann and K. Lachmayer
(eds), Pandemocracy in Europe: Power, Parliaments and People in Times of COVID-19 (Oxford:Hart
Bloomsbury,2022) 71.
4 T.Hickman, ‘The Use and Misuse of Guidance during the UK’s Coronavirus Lockdown’2020 at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3686857 (last accessed 25 January 2022).
5ibid.
6 For instance, see J.Sorabji and S.Vaughan,‘“This Is Not A Rule”: COVID-19in England & Wales
and Criminal Justice Governance via Guidance’(2021) 12 European Journal of Risk Regulation 143.
7 House of Lords Select Committee on the Constitution, COVID-19 and the use and scrutiny of
emergency powers 3rd Report of Session 2021-22 HL 15 (2021).
8 Joint Committee on Statutory Instr uments, Rule of Law Themes from COVID-19 Regulations First
Special Report of Session 2021-22 HL 57, HC 600 (2021) 13-17.
9 Empir ical analysis is a recognised gap in the soft law literature both generally and in relation to
COVID-19.See M. Eliantonio,E.Korkea-Aho and S. Vaughan, ‘COVID-19 and Soft Law:Is Soft
Law Pandemic-Proof?’(2021) 12 European Journal of Risk Regulation 1, 6.See also M. Eliantonio,E.
Korkea-aho and O.Stefan (eds), EU Soft Law in the Member States: Theoretical Findings and Empirical
Evidence (Oxford: Hart Bloomsbury, 2021).
1420 © 2022 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(6) MLR 1419–1439
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