Sorabji, J;
Vaughan, S;
(2021)
“This Is Not A Rule”: COVID-19 in England & Wales and Criminal Justice Governance via Guidance.
European Journal of Risk Regulation
10.1017/err.2020.118.
(In press).
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Abstract
Soft law is an integral part of the efficient and effective functioning of public administration in England & Wales, with a long history of use. As such, its deployment per se as part of the regulatory response to COVID-19 in England & Wales is unremarkable. What is more striking, however, is the extent to which soft law was deployed, with over 400 pieces of ‘guidance and regulations’ created by the government in Whitehall, to say nothing of the other primary and secondary legislation passed to deal with the crisis. In this article, we do three things. First, we look at the place of soft law in administrative law in England & Wales. We then turn to the broad regulatory framework, including soft law, which governs the COVID-19 pandemic in our jurisdiction. This background then allows us, in the final part of this article, to take a deep dive into the criminal justice system. Here, we show how the senior judiciary predominately relied on soft law in the form of judicial guidance and protocols to manage the system. This was against the backdrop of targeted legislation that provided for an expansion of access to the criminal courts via video and audio links and also a limited number of Practice Directions that have the force of law. Our deep dive allows us to argue that the approach taken by the senior judiciary to the use of soft law during the COVID-19 pandemic has, in a number of ways, been more effective than that taken by the government. That being said there remains room for improvement, particularly as concerns the nature of the judicial guidance issued and clarity in terms of what guidance was in place and when.
| Type: | Article |
|---|---|
| Title: | “This Is Not A Rule”: COVID-19 in England & Wales and Criminal Justice Governance via Guidance |
| Open access status: | An open access version is available from UCL Discovery |
| DOI: | 10.1017/err.2020.118 |
| Publisher version: | https://doi.org/10.1017/err.2020.118 |
| Language: | English |
| Additional information: | This version is the author accepted manuscript. For information on re-use, please refer to the publisher’s terms and conditions. |
| UCL classification: | UCL UCL > Provost and Vice Provost Offices > UCL SLASH UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws |
| URI: | https://discovery.ucl.ac.uk/id/eprint/10122785 |
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