The rule of guidance? On the use and legitimacy of soft law in domestic administrative law

Four years after the start of the Covid-19 pandemic, policy makers, civil society and academia are still grappling with the challenges the world faced during that time. One phenomenon which was thrown into sharp relief is the use of non-binding instruments by the UK government to regulate several aspects of life in society. Especially in the first year or so, UK government guidance sometimes failed to make sufficiently clear what was the law and what was public health advice, resulting in individuals being wrongly issued with fixed penalty notices for lawful behaviours.

This workshop uses the COVID-19 pandemic regulatory experience as a starting point to explore more generally the use and legitimacy of guidance (and other soft law instruments) in UK domestic administrative law. Under what conditions is it legitimate to use non-binding regulatory tools instead of legislation? What is the practical impact of guidance for different groups in society? And what are the risks associated with regulating through guidance rather than hard legal rules?