The COVID-19 pandemic has forced governments around the world to become innovative in how they carry out their functions. In particular, they need to respond speedily to developments as the scientific evidence becomes more robust. Rules for regulating conduct accordingly need to constantly evolve. The “golden met-wand” of law, to adopt Lord Coke’s phrase in the Case of Prohibitions, is not particularly well tuned to assist in such regulation other than at a level of generality. For instance, the law can dictate that leaving one’s house is prohibited in the absence of a “reasonable excuse”, but it cannot elaborate on reasonableness at a level of specificity that people desire and need. What is “reasonable” will depend on the circumstances, and such circumstances are individuated even in ordinary times and inevitably change in times of emergency as our understanding of the crisis evolves. A law which talks of reasonableness other than at a level of generality would rapidly become obsolete.

It is unsurprising accordingly that governments have had to “supplement” legal provisions with forms of soft law, such as guidance. There is nothing novel about this use of guidance. It is not “discretionary” other than in the sense that public authorities have discretion about whether or not to issue guidance and what form it should take and so on. Public authorities such as the police do not get to dictate the legal consequences that follow from the rules (though undoubtedly vague laws do give them practical power). To be vested with legal discretion is to be entitled to determine the legal consequences – and so a legal rule itself only contains discretion for instance if it prescribes that “an official is entitled to determine what is reasonable in the circumstances”. And indeed, it is desirable that guidance should be used in such a fashion – to complement but not displace law – as it acts as a guide for individuals in order so that they can understand the legal consequences of their actions. Understood in this way, guidance and other forms of advice provided by public authorities are not a threat to the rule of law, but rather positively advance it as I argue in Tax Authority Advice and the Public.

But there are limits to this proposition – for the rule of law to be advanced, the guidance should be clear (clarity), it should align with the underlying law (correctness) and it should be accessible to individuals (accessibility). To ensure that it follows these indicia, there should be a form of scrutiny (scrutiny) and ultimately people ought to be able to rely upon the guidance (reliability).

The use of guidance during the COVID-19 pandemic does not alter this framework, but it does throw issues around compliance with the framework into sharp relief. It has not gone unnoticed that public authorities have been constantly updating their guidance during the coronavirus. Questions as a result have been raised about the correctness of the guidance where it appears not to align with the underlying law; about its clarity and accessibility; and about its reliability where it turns out that the guidance is in fact incorrect. The strongest legal protection that individuals have where they have relied upon past iterations of guidance is that provided by the doctrine of legitimate expectations – and that is not an entirely comfortable place to be. Should a public authority believe that there is a mistake in its guidance, then it may be lawful to resile from it without falling foul of the doctrine (see Chapter 6 available here). As Greg Weeks has suggested in Soft Law and Public Authorities: Remedies and Reform at page 118, poorly drafted guidance places the risk on those who seek to rely on it. With law offering little protection, people must rely on the benevolence of the public authority. At several points in my book (e.g. at pages 157, 188, 192, 195 and 200) I argue that HMRC and public authorities generally should be comfortable with the idea of making mistakes and not feeling the need to go back and fix them. They should feel more liberated to offer assurances and not use obfuscating or qualifying language. Providing people with greater certainty as to the consequences of their actions is desirable from the perspective of the rule of law and treating people with dignity.