‘The seemingly ever-growing expanse of “soft-law”, “policy” or “guidance”, (referred to below as “guidance”) has been cautiously welcomed as aiding the business of government and enhancing good public administration. Unsurprisingly, as the textbooks and contributions to this symposium attest, this phenomenon has generated discrete legal problems. The status (not law “as such” (R(A) at [3]), purpose (to ensure consistency in the exercise of discretion – R (Lumba) v. SSHD [2011] UKSC 12), meaning (to be judged objectively – Mandalia v. SSHD [2015] 1 WLR 4546) and content (must be rational, proportionate etc) of these ‘soft law’ iterations have raised questions with varying degrees of significance in terms of the rule of law. One such question is the legitimacy of guidance, judged by reference to its effects, both intended and unintended. This reflects the fact that guidance is often directed towards the actions of persons other than its author(s), often with implications for third parties.’
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UK Constitutional Law Association, 5th February 2025
Source: ukconstitutionallaw.org