Rationing without a rule: Legitimacy and the case for primary legislation in pandemic critical care

During the COVID-19 pandemic, England rationed access to critical care without any published national rule governing how that rationing would occur, allocating scarce intensive care resources through locally variable clinical discretion rather than any accessible framework. This article argues that governing acute scarcity in this way was normatively illegitimate, and that the illegitimacy cannot be cured by soft-law clinical guidance or retrospective judicial review. It defends three conditions: publicity, equal concern, and democratic accountability, grounded in Daniels and Sabin's accountability-for-reasonableness framework and shown to be immanent in existing public-law standards. Through the Thomson litigation and the human-rights reasoning in Tracey and Winspear , it demonstrates that the legal architecture for a binding framework existed and was not used: a governmental choice, not a necessity. It argues that soft law fails not because it is legally unaccountable but because ministerial answerability cannot substitute for deliberation at the point of criterion-setting. It defends primary legislation as the constitutionally appropriate form, specifies a duty-and-activation structure, and situates the argument in relation to the Covid-19 Inquiry Module 3 Recommendation 7.