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Published online by Cambridge University Press: 09 February 2021
While soft law is an integral part of the efficient and effective functioning of public administration in England & Wales, the extent to which it was deployed in response to COVID-19 is striking, with over 400 pieces of “guidance and regulations” created. In this article, we consider the general place of soft law in administrative law in England & Wales and the broad regulatory framework, including soft law, that governs the COVID-19 pandemic. This allows us to take a deep dive into COVID-19 and the criminal justice system, showing how the senior judiciary relied predominately on soft law (judicial guidance and protocols) to manage the system (set against the backdrop of targeted legislation and a limited number of Practice Directions, which have the force of law). We argue that the senior judiciary’s approach to the use of COVID-19 soft law has, in many ways, been more effective than that taken by the government. Yet there remains room for improvement, particularly in the nature of the judicial guidance issued and about what guidance was in place and when.
1 The UK has three separate legal jurisdictions: England & Wales; Scotland; and Northern Ireland. This article is concerned solely with England & Wales and, in many places other than the criminal courts, only with England, given devolution powers granted to Wales that meant that it often went its own way in relation to COVID-19.
2 Prime Minister, “Statement on Coronavirus (COVID-19)” (London, 16 March 2020).
3 Cabinet Office, Guidance – Staying at home and away from others (social distancing) (23 March 2020); The Health Protection (Coronavirus) Regulations 2020, SI 2020/129; The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, SI 2020/350.
4 ibid, Restrictions Regulations, reg. 6(2)(h).
5 Lord Burnett CJ, Coronavirus (COVID-19) update from the Lord Chief Justice (17 March 2020:I).
6 HMCTS, Daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak (March 2020).
7 Lord Burnett CJ, “Coronavirus (COVID-19): Jury trials, message from the Lord Chief Justice” (17 March 2020: II).
8 See for instance, HMCTS Magistrates Courts cases (25 March 2020).
9 House of Commons Justice Select Committee, Coronavirus (COVID-19): The impact on prison, probation and court systems, Oral Evidence Session (22 May 2020) (HC 229), Lord Burnett CJ at Q143.
10 ibid. Legally there is only one Crown Court (Senior Courts Act 1981, s 45), which sits at different sites across England and Wales. “Crown Courts” refers to the court sitting at those various sites.
11 HMCTS, Daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak (31 March 2020).
12 Coronavirus Act 2020, ss 53–56, schs 23, 25.
13 See Courts and Tribunals Judiciary, “Coronavirus (Covid-19) advice and guidance” <https://www.judiciary.uk/coronavirus-COVID-19-advice-and-guidance/#crimeguidance> (last accessed 19 September 2020).
14 Instead, see F Snyder, “The Effectiveness of EC Law” (1993) 56(1) MLR 19; KW Abbott et al, “The Concept of Legalization” (2000) 54 International Organization 40; L Senden, Soft Law in European Community Law (Hart 2004); and JJ Kirton and MJ Trebilcock (eds), Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance (Ashgate 2004).
15 See, for example: GM Borchardt and K Wellens, “Soft Law in European Community Law” (1989) 14(5) EL Rev 267; C Chinkin, “The Challenge of Soft Law: Development and Change in International Law” (1989) 38 ICLQ 850; and OA Ştefan et al, “EU Soft Law in the EU Legal Order: A Literature Review” (4 March 2019) King’s College London Law School Research Paper <ssrn.com/abstract=3346629> (last accessed 23 November 2020).
16 Senden, supra, note 14, p 110.
17 See further: L Senden and T van den Brink, “Checks and Balances of Soft EU Rule Making” (Report for the European Parliament, March 2012); L Senden, “Soft Post-legislative Rulemaking: A Time for More Stringent Control” (2013) 19(1) European Law Journal 57.
18 S Vaughan, EU Chemicals Regulation: New Governance, Hybridity and Reach (Edward Elgar 2015).
19 Ştefan et al, supra, note 15.
20 C Harlow and R Rawlings, Law and Administration (CUP 2012) Chapter 5. With delegated legislation, “to constitute law a text must be traceable to and authorised by a superior rule of law; otherwise it could be declared ultra vires and invalidated by a court”.
21 R Baldwin, Rules and Government (OUP 1995).
22 Can soft law only ever be a type of tertiary rule? Or is (for example) guidance that is authorised and foreseen in a statute a type of delegated legislation and also a form of “soft” law (because its validity, and the extent to which it is an accurate interpretation of the underlying statute, depends on judicial confirmation)? See further the pieces listed supra, notes 14–18.
23 G Weeks, Soft Law and Public Authorities: Remedies and Reform (Hart 2016) p 15.
24 Harlow and Rawlings, supra, note 20, p 196.
25 ibid, p 192.
26 D Greenberg, “Dangerous Trends in Modern Legislation … and How to Reverse Them” (2016) Centre for Policy Studies Paper 5.
27 R Rawlings, “Soft Law Never Dies”, in M Elliott and D Feldman (eds), The Cambridge Companion to Public Law (CUP 2015) p 215.
28 Stretching back to the end of the World War II. See, for example, R Megarry, “Administrative quasi-legislation” (1944) 60 LQR 125.
29 Rawlings, supra, note 27, p 215.
30 On these, see the discussion in supra, note 21; A McHarg, “Administrative discretion, administrative rule-making, and judicial review” (2017) CLP 267; and R Baldwin and J Houghton, “Circular Arguments: The Status and Legitimacy of Administrative Rules” [1986] Public Law 23.
31 See, for an overview, Weeks, supra, Chapter 2, note 23.
32 Rawlings, supra, note 27, p 233.
33 McHarg, supra, note 30, p 269.
34 In re McFarland [2004] 1 WLR 1289, 1299 per Lord Steyn.
35 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, at 143 per Lord Clyde.
36 For a rich discussion of the case law, see McHarg, supra, note 30.
37 See Gillick v West Norfolk [1986] AC 112; and the discussion in McHarg, supra, note 30, pp 284 ff.
38 On which see R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299.
39 See R Williams, “The Multiple Doctrines of Legitimate Expectations” (2016) 132 LQR.
40 Boyle v SCA Packaging [2009] UKHL 37; at para 67 per Lady Hale.
41 See, for example, R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345 and R (Nicklinson) v Ministry of Justice [2014] UKSC 38.
42 K Ewing, “Covid-19: Government by Decree” (2020) King’s Law Journal 1, 5.
43 See Ewing (ibid) and A Greene, Emergency Powers in a Time of Pandemic (Bristol University Press 2020).
44 Supra, note 12.
45 Supra, note 42.
46 These Regulations have been subsequently amended, on 13 May 2020 and 1 June 2020.
47 Hansard Society, “Coronavirus Statutory Instruments Dashboard” <https://www.hansardsociety.org.uk/publications/data/coronavirus-statutory-instruments-dashboard#powers-used-by-ministers> (last accessed 19 September 2020).
48 Rawlings, supra, note 27, p 216.
51 T Hickman, “The Use and Misuse of Guidance during the UK’s Coronavirus Lockdown” (2020) 1 <ssrn.com/abstract=3686857> (last accessed 19 September 2020).
52 National Health Service Act 2006, s 2A.
53 On the functions of soft law, see Vaughan, supra, note 18.
54 Hickman, supra, note 51, p 13.
56 Ewing, supra, note 42.
57 Wilken, supra, note 55.
58 J Scott, “In legal limbo: post-legislative guidance as a challenge for European administrative law” (2012) RRDE 76.
59 Hickman, supra, note 51.
60 On the judicial power of the state, see Attorney-General v British Broadcasting Corporation [1981] AC 303; Peach Grey & Co v Sommers [1995] ICR 549; Contempt of Court Act 1980, s 19.
61 Courts Act 1971, s 5; Senior Courts Act 1981, s 16; Courts Act 2003, ss 7, 10, 22, 65 and 66; Constitutional Reform Act 2005, s 7(1).
62 Juries Act 1974.
63 Courts Act 2003, s 1; HM Courts and Tribunals Service Framework Document, para 1.1 (Cm 8882) (July 2014); The Lord Chancellor’s Judiciary-Related Functions: Proposals (The “Concordat”) reprinted in House of Lords Select Committee on the Constitutional Reform Bill, Constitutional Reform Bill, Report, Vol 1, at 205.
64 R v Horseferry Magistrates’ Court, ex p Bennett [1994] 1 AC 42, 68; R v Bentley, decd [2001] 1 Cr App R 307, 334; Art 6 of the European Convention on Human Rights; Human Rights Act 1998.
65 Scott v Scott [1913] AC 417; R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65.
66 Constitutional Reform Act 2005, s 1.
67 See R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin) [2019] EMLR 2016 on the scope of the prohibition on broadcasting. Also see Gubarev v Orbis Business Intelligence Ltd [2020] EWHC 2167 (QB).
68 Criminal Justice Act 1925, s 41; Crime and Courts Act 2013, s 32.
69 Contempt of Court Act 1981, s 9.
70 Criminal Justice Act 2003, pt 8.
71 Criminal Justice Act 2003, s 55, Criminal Procedure Rules (2015) (CrimPR) rr 18.23–18.26.
72 For instance legal professional privilege (R v Derby Magistrates’ Court, ex p B [1996] 1 AC 487, common law), Police and Criminal Evidence Act 1984, s 10(1) (statute); Police and Criminal Evidence Act 1984, pts VII and VIII (statute).
73 See the Criminal Procedure Rules 2015 (as amended).
74 Judicial College, Reporting Restrictions in the Criminal Courts (April 2015; revised May 2016).
75 It does so further to: Constitutional Reform Act 2005, s 7(2)(b); Tribunals, Courts and Enforcement Act 2007, sch 2 para 8, sch 3 para 9.
76 This was a form of interim guidance (those which are, ought to be or are intended, to be formalised within rules or Practice Directions), and concerned “[t]he use of live text-based forms of communication (including twitter) from court for the purposes of fair and accurate reporting”. The Twitter Guidance is now part of the Criminal Practice Direction. See Lord Judge, Interim Practice Guidance: The Use of Live Text-Based Forms of Communication (including Twitter) from Court for the Purposes of Fair and Accurate Reporting (20 December 2010); and Lord Judge, Practice Guidance: The Use of Live Text-Based Forms of Communication (including Twitter) from Court for the Purposes of Fair and Accurate Reporting; Criminal Practice Directions 2015 [2015] EWCA Crim 1567.
77 R (McKenzie) v The Lord Chancellor [2020] EWHC 1867 (Admin) 21–26.
78 Lord Burnett CJ, Review of court arrangements due to COVID-19, message from the Lord Chief Justice (23 March 2020).
79 Judicial Office, Jury Trials (24 April 2020).
80 Lord Burnett CJ (17 March 2020: I) and (17 March 2020: II).
81 Schedule 23 of the 2020 Act inserted temporary provisions to this effect in to the Criminal Justice Act 2003, while schs 24 and 26 did the same for, amongst others, the Crime and Disorder Act 1998 and the Magistrates’ Courts Act 1980.
82 Schedule 25 of the 2020 Act inserted what had been sch 6 of the Prisons and Courts Bill 2017 as Courts Act 2003, ss 85A–85D.
83 Coronavirus Crisis Protocol for the Effective Handling of Custody Time Limit Cases in the Magistrates’ and the Crown Court (27 March 2020).
84 Senior and deputy Senior Presiding Judge, Note on Listing in Magistrates’ Courts – COVID-19 (14 April 2020).
85 Issued by the Senior and deputy Senior Presiding Judge (23 March 2020).
86 Issued by the deputy Senior Presiding Judge (16 June 2020).
87 Letter from the Senior Presiding Judge to the Chair of the Bar of England and Wales (17 June 2020).
89 Mr Justice Dove, User Guidance for the use of BT MeetME in the Crown Court on the Northern Circuit (30 March 2020).
90 The Recorder of Leeds, Information for the Crown Prosecution Service Representatives (7 May 2020).
91 Unattributed, The Return of Jury Trials to North Wales (12 June 2020).
92 HHJ Altham QC, Local Practice Direction 1/2020: (i) Virtual Court (ii) Trial Assessment and Resolution Hearings (3 July 2020).
93 See Criminal Practice Direction XIII Listing A: Judicial Responsibility for Listing and Key Principles, A2–A6.
94 HMCTS, Guidance – Keeping court and tribunal buildings safe, secure and clean. First issued on 29 March 2020 and updated regularly, with the nature of the updates recorded by date.
95 HMCTS, Guidance – Video enabled criminal hearings: guidance for defence practitioners. First issued on 1 June 2020 and updated regularly, with the nature of the updates recorded by date.
96 HMCTS, Media Access to Proceedings; HMCTS, Open Justice.
97 Lord Burnett CJ (23 March 2020).
98 R (McKenzie) v The Lord Chancellor [2020] EWHC 1867 (Admin).
99 Coronavirus Crisis Protocol for the Effective Handling of Custody Time Limit Cases in the Magistrates’ and the Crown Court (27 March 2020) at 5; Direction from the President of the Queen’s Bench Division and the Senior Presiding Judge – Withdrawal of Custody Time Limits Protocol of 9 April 2020 (2 September 2020).
100 ibid, at 12–18 and 23–26.
101 Bovale v Secretary of State [2009] EWCA Civ 171, [2009] 3 All ER 340.
102 Altham, supra, note 92.
103 Courts Act 2003, s 74(2).
104 One presumably issued under s A5 of Division XIII of the Criminal Practice Direction 2015.
105 See Practice Statement (Companies: Schemes of Arrangement) [2002] 1 WLR 1345, which was replaced by Practice Statement (Companies: Schemes of Arrangement under Part 26 and Part 26A of the Companies Act 2006), unrep (26 June 2020). If the 2002 Practice Statement had been a Practice Direction it could only have been revoked by a Practice Direction that complied with the statutory scheme for Practice-Direction Making, ie the 2020 Practice Statement would have had to have been agreed to by the Lord Chancellor.
106 Civil Procedure Act 1997, s 5, which is comparable to that for the criminal courts set out in the Courts Act 2003, s 74.
107 See Interim Practice Guidance, para 4; Practice Guidance, para 1; also see, in respect of civil proceedings, Practice Guidance on Interim Non-Disclosure Orders [2012] 1 WLR 1003, para 1.
108 As was done for instance in: Senior and deputy Senior Presiding Judge, Guidance for Crown Court Judges – Covid-19 Measures (23 March 2020).
109 Order, dated 25 March 2020, IN THE MATTER OF the Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Taking of Evidence Regulation (Council Regulation (EC) 1206/2001) and IN THE MATTER OF the Coronavirus Act 2020, reprinted in G Vos (ed), Civil Procedure 2020 Vol 1 at A.7.8 (Thomson Reuters, 2020).
110 Bovale v Secretary of State [2009] EWCA Civ 171 [2009] 3 All ER 340 at [11].
