The Rule of Guidance? Blog Series Introduction – UK Constitutional Law Association
*Editors’ note – this post is part of a series on ‘The Rule of Guidance?’. The other posts in the series will be available here.
Introduction
The conference ‘The Rule of Guidance?’, funded by a Michael Beverley Innovation Fellowship, was held in July 2024 at the Bingham Centre for the Rule of Law in London. The conference’s aim was to query the use and effects of soft law regulatory tools (recommendations, statutory and non-statutory guidance, guidelines, advice, and so forth) in UK domestic administrative law. The conference took the cue from the use (and abuse) of guidance during the first years of the SARS-CoV-2 pandemic in the UK, which brought several, and understudied, issues about the interaction between soft and hard law to salience.
The conference’s aim was to investigate these issues from multiple perspectives – not just the legal/doctrinal, but also interdisciplinary and comparative ones. To this end, it brought together a diverse range of legal practitioners and academic experts from different disciplines, including law, social psychology, philosophy, and health and bioethics. Their contributions are developed in the posts making up this blog series on the UKCLA website. The first three posts by Drury, Lines, and Ghazi focus exclusively on the use (and abuse) of soft law during the first years of the SAR-CoV-2 pandemic. The last three posts by Burton KC, Bhakuni, and myself look more broadly at the legal status and legitimacy of the use of guidance in UK domestic administrative law.
The contributions to the Series, in brief (no spoilers)
The series begins with John Drury urging officials to ‘get the psychology right’ before deciding how (and, even before, whether) to legislate to govern a pandemic. He reviews several case studies pointing to the fact that legal coercion might be fundamentally counter-productive in the context of a public health emergency. What does it mean for the alternative between hard and soft law going forward?
The second post is by Katie Lines, who summarises the workings and recommendations of the Independent Commission on UK Public Health Emergency Powers. The evidence received by the Commission points again to the stated preference by many medical professionals for guidance over criminalisation of behaviour, while the final recommendations caution against the confusion of law and guidance that was caused (especially at first) by careless government messaging.
Tasneem Ghazi concludes the first trio of posts by comparing the British and Irish governments use of guidance during the first couple of years of the pandemic and highlighting the lack of political accountability over it. She concludes by provocatively asking whether governments could have avoided legislation altogether and governed the pandemic only with guidance.
The second half of the series starts with Jamie Burton KC reviewing the most recent English case law on the relationship between guidance and illegality. In particular, in what circumstances is guidance itself unlawful on account of its relationship with unlawful decision making in individual cases? This was the focus of a pair of very recent UKSC decisions which are analysed in depth in his post, including as to how they might shape the judicial approach vis-à-vis guidance going forward.
Next, Himani Bhakuni looks at the legitimacy of exclusively using guidance to regulate behaviour in health matters, starting from the case of unhealthy diets. Turning the preference for soft law on its head, she asks why governments should not rather use legislation to prevent significant individual and social harm from the consumption of ultra-processed foods.
Finally, I conclude the blog series by questioning the default preference for soft law in some areas (particularly in personal and public health) by illustrating the role of law in creating so-called ‘mediated’ accountability. I point out the reductive nature of much current discussion about law’s function(s) and conclude by showing that the alternative between hard and soft law tools is much more complex than routinely appreciated.
Conclusion
The contributions in this series add to an emerging strand of the literature that analyses the use and effects of soft law in law and policy. This body of work takes seriously the ubiquity of guidance, recommendations, guidelines, advice, and similar forms of regulation, and highlights their multiple effects on constitutional essentials like the principle of the legal supremacy of Parliament, the separation of powers, and the rule of law. More importantly, though, these soft law tools play a significant and still under-appreciated role in determining the interactions between individuals and the state in every day life. Therefore, much more work is needed in this respect and the hope is that this blog series will spur further interest and research in this area.
Paolo Sandro, Associate Professor of Public Law and Legal Theory, University of Leeds
(Suggested citation: P. Sandro, ‘The Rule of Guidance? Blog Series Introduction’, U.K. Const. L. Blog (27th January 2025) (available at https://ukconstitutionallaw.org/))