II. The role of soft law in English administrative law

In this section, we offer a brief overview of the place and history of soft law in English administrative law. This provides a scaffold for the sections that follow, which set out how soft law has been deployed generally in relation to COVID-19 and specifically by the criminal courts. While this is not the place to engage in a significant setting-out of what soft law is and is not,Footnote ¹⁴ some introductory framing may be useful for those readers who have stumbled upon this paper primarily because of their interest in the criminal justice system. Soft law is generally thought of as norms which, while they may have significant practical effects, are usually said not to be binding. Various definitions of soft law exist, and various debates are had about those definitions.Footnote ¹⁵ These do not concern us today. Instead, and like Senden, we are using soft law as a “reasonably satisfactory umbrella concept” to talk about a diverse group of legal instruments including things like guidance, guidelines, circulars, protocols, standards (and so on) that have various functions (leading to various practical, and sometimes legal, impacts) but do not have the same legally binding effects as hard law.Footnote ¹⁶ Soft law can be used in a variety of ways: in the place of (sometimes as a precursor to) hard law; alongside (but separate from) hard law; and/or foreseen by, and used to build on, hard law.Footnote ¹⁷ While much of the early work in this area was about definition by contrast (ie soft law in opposition to hard law), one of us, in other work, has shown how soft law can be just as differentiated, plural, hierarchical, persuasive and intricate as hard law.Footnote ¹⁸ This is, as such, a complex governance space, and one that is increasingly important given the move (by states, regulators and agencies, other public bodies, international institutions, etc) to use soft law more and more frequently.Footnote ¹⁹ While soft law has been of particular interest to scholars of public international law and EU law (soft law being explored as part of a developing, complex legal order; and something that also poses legitimacy, transparency, enforcement, and other challenges to that order) it is also, as we will now see, of interest to English law scholars as well.

Let us come back now to the role of soft law in English administrative law. Putting to one side case law and the role of the judiciary, the classic hierarchy of law in England begins with primary legislation (statutes made by Parliament) at the top, moves on down to secondary legislation (often in the form of statutory instruments, which are usually approved by Parliament and published, via reforms introduced by the Statutory Instruments Act 1946) and then on to what Harlow and Rawlings label a “ragbag” of rules, orders, etc that do not need parliamentary approval and are called delegated legislation.Footnote ²⁰ Beyond primary, secondary and delegated legislation, there is what Baldwin has labelled “tertiary” legislation, being that which is created without any express statutory conferral of power.Footnote ²¹ Where soft law fits into this hierarchy is (and has been) debated.Footnote ²² “Soft law” in England does not share the neat delineations of other types of rules: “unlike delegated legislation, it is not a term of art”.Footnote ²³ In addition, exactly what sort of legislative approach (primary, secondary, delegated, tertiary) will be taken in any given situation in England is not always clear. Instead, “rule-making is not a wholly rational process”.Footnote ²⁴ As Harlow and Rawlings have observed,

While the UK National Archives have a dedicated space in respect of “legislation and regulations”, this does not include soft law, and it is then a matter of departmental practice as to which government departments publish soft law, and how easy it is to access such on their own departmental websites.Footnote ²⁶

Notwithstanding this regulatory ambiguity, “soft law is a fact of public life” in England.Footnote ²⁷ While there is a long (and relatively rich) history of academic work which looks specifically at what readers of this special issue would think of as within the limits of soft law in England,Footnote ²⁸ that body of public law scholarship has often been framed in terms of “different labels”.Footnote ²⁹ And so what we see is work, from the 1940s onwards, which has variously concerned itself with “bureaucratic (or administrative) rule making”, “executive practices”, “administrative rules”, “administrative quasi-legislation”, “quasi-law”, and “government by circular”.Footnote ³⁰ What this body of scholarship does is to chart the types and uses of soft law as a feature of English public law, and to question its effects.Footnote ³¹ Here, as in other places, soft law can call into question what it means to engage in good governance, viewed in particular relation to “the classic trio of transparency, participation, and accountability”.Footnote ³²

While there is, in English public law, a doctrine known as the “no-fettering rule”, being “the rule that administrative decision-makers exercising discretionary powers must not fetter their discretion”,Footnote ³³ the English courts have come to accept soft law (including rules made by administrators which may have the effect of fettering their own discretion) as, in Lord Steyn’s words, an “integral part of the working of a mature process of public administration”.Footnote ³⁴ Such rules have been seen by many judges as “an essential element in securing the coherent and consistent performance of administrative functions”.Footnote ³⁵ This does not mean that the courts in England do not engage with soft law. Far from it.Footnote ³⁶ What the case law suggests is that decisions made by a public body as a result of soft law are open to judicial review.Footnote ³⁷ Furthermore, these cases show how soft law instruments (generally) have binding-like effects on those who made them,Footnote ³⁸ and may give rise to legitimate expectations in favour of those to whom they are addressed.Footnote ³⁹ We also know that, even where soft law is foreseen (for example, an Act of Parliament grants an express power to create “statutory guidance”), the English courts have the residual right to say that such soft law, while potentially “helpful” to some in terms of interpretation, “is a mis-statement or mis-application of what Parliament has enacted”.Footnote ⁴⁰ There are even cases where judges have required decision-makers to create and publish soft law.Footnote ⁴¹ We turn later on in this piece to how the courts have responded thus far to soft law issued in relation to COVID-19.

III. Regulating for COVID-19 in England: an overview

In this section of the article, we set out the broad contours of the regulatory field in England that was created as a response to COVID-19, before moving, in the following section, to a deep dive into the criminal justice system. Since 1920 (and the Emergency Powers Act), the UK has had legislation that was specifically designed to respond to emergencies. This is now the Civil Contingencies Act 2004. This Act (among other matters) grants the power to ministers (in sections 20 and 21) to make emergency regulations. As Ewing notes, the exercise of that grant of power in the 2004 Act is subject to parliamentary scrutiny.Footnote ⁴² This Act was not used as part of the response by the UK government to COVID-19 (very possibly because its use would have required parliamentary scrutiny).Footnote ⁴³ Instead, two new primary pieces of legislation were passed on 25 March 2020, the Coronavirus Act 2020 (the 2020 Act) and the Contingencies Fund Act 2020. The former passed all of the stages in the House of Commons in a day (on 23 March 2020) and received royal assent two days later. It comprises 102 sections and 29 schedules and is some 342 pages long (as a pdf). Despite this size, the 2020 Act is merely the “headline piece of legislation”,Footnote ⁴⁴ and is surrounded and buttressed by a supporting cast of other norms and regulatory responses. These include the Public Health (Control of Disease) Act 1984, under which, as Ewing notes, it is possible to introduce secondary legislation “without any form of parliamentary approval or scrutiny, and for these regulations to operate without any form of parliamentary approval or scrutiny”.Footnote ⁴⁵ This was exactly what was done, with the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/129) made under an emergency procedure of the 1984 Act and on the day following the adjournment of Parliament (that is, on 26 March).Footnote ⁴⁶ These Regulations did various things, requiring the closure of various business (restaurants, pubs, cinemas, gyms, etc), making it an offence for a person to leave their home without a “reasonable excuse” and restricting public gatherings.

The Restrictions Regulations are just one set of over 130 pieces of secondary legislation statutory instruments (SIs) that speak to COVID-19 in England, and these SIs have been made under 84 different Acts of Parliament.Footnote ⁴⁷ Beyond the two 2020 Acts, and the more than 130 SIs, there is also a sea of dedicated COVID-19 guidance documents issued by the government to which we now turn. Rawlings’ work shows how in “different periods and different policy contexts certain types of soft law take on a new importance”.Footnote ⁴⁸ The importance of soft law to the governance of COVID-19 in England cannot be overstated. As of 6 August 2020, the UK government’s COVID-19 “guidance and support” section of its gov.uk website is broken down into 14 sub-fields, which apply to England; there being other websites (and other rules, guidance and support) for Wales, Scotland and Northern Ireland. Each of the 14 sub-fields (from “When someone dies” to “School openings” to “Working safely”) comprises various “guidance and support” documents and webpages. There are, in total, over 400 items that the government has labelled as COVID-19 “guidance and regulation”. As far as we can see, each piece of COVID-19 guidance on the gov.uk website sets out the date it was published, the date it was last updated, and the relevant author (eg the Cabinet Office). There is also a list of the updates to the guidance (though these are often insubstantial and, for example, often simply say things like “Updated to reflect latest guidance”). The gov.uk COVID-19 webpages do not keep or link to copies of previous guidance. These COVID-19 guidance documents also speak to each other (though there is no clarity as to which, if any, should take precedence in the event of a clash). So, for example, what we might think of as the main piece of guidance (given its ambit) is titled “Staying alert and safe (social distancing)”, cross-refers to other, more specific guidance documents (eg on travel to work), and is underpinned by a series of specific FAQs. This document contains various statements that begin with “You should”, but does not speak to its own validity or normative force (nor does it set out how it connects with the 2020 Act or the various SIs discussed above; the “regulations” are mentioned in passing, but nothing more). On a different part of the government website (under “Public Health”), the public is told, “The advice for everyone is to follow this guidance”.Footnote ⁴⁹ Elsewhere, the public is told that while “Public Health England recommends trying to keep 2m away from people as a precaution”, the next line says that “this is not a rule”.Footnote ⁵⁰

One of the challenges here, as Hickman has noted, is that while the government webpages were set up to provide public health advice on the virus and information on the new virus-related rules, “rather than distinguishing between these two functions, the coronavirus guidance elided them, obscuring the nature of the instructions that the guidance contained”.Footnote ⁵¹ Another issue that is not immediately clear to us is the exact basis on which the government has issued all of the COVID-19 guidance that it has. Hickman suggests that the “most likely” candidate is the power granted to the Secretary of State for Health in the National Health Service Act 2006 to provide “information and advice” to the public for the purpose of “protecting the public in England from disease”.Footnote ⁵² This may well be the case, but the matter is up for debate. The Restrictions Regulations do not refer to “guidance”. The 2020 Act does, however, and in 16 different places. These 16 mentions speak to various matters and various groups who need to “have regard” to certain guidance (eg to managers of schools who are subject to guidance issued by the Department for Education), but there is no general power granted in the Act to make guidance. What we have not done, and will leave for others to do, is to check, for each of the more than 130 SIs created to respond to COVID-19, whether they grant any specific guidance-making powers.

The government’s voluminous COVID-19 guidance seems to fulfil various functions, including amplifying the legislation and filling in operational gaps,Footnote ⁵³ with the gloss (noted by Hickman) that it also contains what we might think of as “mere” public health advice.Footnote ⁵⁴ The complex of the two COVID-19 Acts, the 1984 Act, the 130-plus SIs (including the Restriction Regulations), the 400-plus pieces of gov.uk guidance, and political “advice” (speeches and statements on COVID-19 made inside and outside of Parliament) creates a space in which clarity as to the content, boundaries and effect of the “rules” is lacking, and where the onus is placed on individuals to parse what is merely good practice and/or advisory from what creates binding obligations (something that is no easy task and is, we think understandably, unlikely to be taking place on any sort of close, careful, meticulous basis in the minds of each of the 55 million people who live in England). As Sean Wilken has put it, “the law is not clearly accessible – there is no one document, one can point to and say ‘do or do not do that which is said here’”.Footnote ⁵⁵ This COVID-19 regulatory space has been called, variously, “government by decree”,Footnote ⁵⁶ “the quadripartite approach or the puzzle”,Footnote ⁵⁷ and (reminiscent of Scott’s idea of post-legislative guidance creating a “legal limbo”)Footnote ⁵⁸ a place of “normative ambiguity” (where the difference between legal rules and public health advisory norms is uncertain).Footnote ⁵⁹ We would agree with each of these framings. What we have is a regulatory hot mess.

IV. COVID-19 and the criminal justice system

The criminal justice system in England operates within a tripartite framework of statute and common law, procedural rules and Practice Directions, and guidance. In order to consider the extent to which the COVID-19 pandemic has affected this framework, and appraise its consequences, it is first necessary to set out its structure. In doing so we focus on one part of the system: the operation of the magistrates’ courts and the Crown Court (the criminal courts).

The statutory and common law aspects of the framework are well established. The criminal courts exercise the common law judicial power of the state in respect of the adjudication of prosecutions brought in respect of alleged criminal offences.Footnote ⁶⁰ Their jurisdiction is exercised by different categories of judge,Footnote ⁶¹ and, in respect of the Crown Court, jurors.Footnote ⁶² Their administration, HMCTS, is provided by the executive further to a statutory duty imposed on the Lord Chancellor and it operates as a formal, constitutional partnership between the executive and the judiciary.Footnote ⁶³ Within the overarching structure, a further combination of statute and common law governs the criminal courts’ operation and procedure.

First, the courts’ operation. A number of statutory and common law provisions govern the proper operation of the criminal courts. At the most basic level, the courts are required to secure the common law and Article 6 ECHR the right to a fair trial.Footnote ⁶⁴ They must operate consistently with the common law principle of open justice,Footnote ⁶⁵ which is itself an aspect of the common law principle of the rule of law.Footnote ⁶⁶ Such requirements are, however, subject to a number of restrictions. For instance, criminal proceedings cannot be photographed, video recorded or broadcast outside the court building or its precincts,Footnote ⁶⁷ except where that is authorised by statutory authority.Footnote ⁶⁸ Nor can they be audio recorded without the court’s permission.Footnote ⁶⁹ Exceptions to statutory restrictions on broadcasting proceedings outside the court building or precincts are also set out in statute. The Criminal Justice Act 2003, for instance, makes provision to hear witness evidence by way of live television link (“live link”).Footnote ⁷⁰ It further authorises the making of rules of court concerning such processes.Footnote ⁷¹

Second, the courts’ procedure. Again, this is governed by a mix of statute and common law.Footnote ⁷² The most significant part of the procedural framework, which governs the pre-trial and trial process, is contained within the Criminal Procedure Rules (the CrimPR);Footnote ⁷³ secondary legislation made under authority provided by Part 7 of the Courts Act 2003. The CrimPR are then complemented and supplemented by Practice Directions, which are made under the common law via a statutory procedure and have the force of law.

Within this framework there is, ordinarily, little room for the use of guidance. Where guidance is issued, such as through the Guidance on Reporting Restrictions,Footnote ⁷⁴ or its Crown Court Compendium, that guidance is generally issued by the Judicial College, which provides training to the judiciary.Footnote ⁷⁵ The purpose of such guidance is to explain applicable law and procedure, to set out, or offer advice on, best practice. It is descriptive or explicative. Only exceptionally is guidance in the criminal courts used as a means to set out a quasi-normative process that could otherwise have been made via rules of court or Practice Directions. When such guidance has been used in this way by the criminal courts (to set out a quasi-normative process) it is issued by a member of the senior judiciary, rather than the Judicial College. Where guidance like this has been issued, such as the “Twitter Guidance”,Footnote ⁷⁶ it has been, not a substitute for formal law-making by either rules of court or Practice Direction, but an explanation of best practice to standardise conduct, to fill gaps in the existing law either generally, or as a means to hold-the-ring pending the formal law-making process.

The COVID-19 pandemic effected a number of temporary changes to each aspect of the tripartite framework, while also seeing one aspect of it, the Lord Chief Justice’s statutory power under section 7(1) of the Constitutional Reform Act 2005 to issue general listing directions,Footnote ⁷⁷ used for the first time. That listing power was used to suspend the listing of jury trials.Footnote ⁷⁸ Further to it, arrangements were also put in place to monitor whether and when jury trials could resume.Footnote ⁷⁹ The temporary changes stemmed from the 2020 Act, which in turn led to amendments to the CrimPR and its Practice Directions. Those amendments were, as will be seen, limited in scope. Of a wider scope of application, there was also an increase in the use of guidance issued by the judiciary and HMCTS.

The focus of the statutory and rule-based amendments was the problem, as noted earlier, of the compatibility of holding face-to-face hearings in court buildings with the national lockdown. As a consequence, there was a need, as Lord Burnett CJ explained, for “an urgent increase in the use of telephone and video technology immediately to hold remote hearings where possible”.Footnote ⁸⁰ In order for that to happen, primary legislation was required in two respects. First, additional statutory powers needed to be given to enable individuals to take part in criminal proceedings via a “live link”. Through such amendments, the criminal courts were given expanded powers to hold video or audio hearings.Footnote ⁸¹

Additional provision to enable the criminal courts to hold video and audio hearings was not sufficient, however. It was also necessary for statutory intervention to enable such hearings to be held consistently with the constitutional principle of open justice. For that reason, the 2020 Act made provision for such proceedings, where they were wholly remote (ie no part of the proceeding took place in a physical court) to be accessible to the public.Footnote ⁸² The focus of the statutory and rule-based amendments thus concerned enabling remote hearings, albeit not jury trials, to take place and facilitating public access to them. They provided the architecture for expanding the use of such hearings. As with the general approach taken by the government, outlined above, legislation was supplemented by guidance, which was issued both by the judiciary and by HMCTS.

At a national level, guidance was issued by the senior judiciary. On 27 March 2020, for instance, the President of the Queen’s Bench Division issued a Protocol that had been jointly agreed by the Senior Presiding Judge, the Chief Executive of HMCTS, and the Director of Public Prosecutions, which concerned the management of custody time limits in the criminal courts.Footnote ⁸³ Similarly, national guidance on listing decisions in magistrates’ courts was issued jointly by the Senior Presiding Judge (SPJ) and deputy Senior Presiding Judge (DSPJ) on 14 April 2020.Footnote ⁸⁴ Further national judicial guidance also concerned health measures to be taken in Crown Courts (ie social distancing, use of hand sanitisers, etc)Footnote ⁸⁵ and the multi-hander cases guidance, which supplemented prior listing guidance.Footnote ⁸⁶ By way of contrast, the senior judiciary declined to issue a national protocol or guidance setting out how jury trials should be conducted. They did so on the basis that trial management was a matter for individual trial judges, and was an aspect of judicial independence, ie soft law could not be issued in a way that was inconsistent with the basic aspects of the right to a fair trial and the rule of law.Footnote ⁸⁷

At a regional (ie circuit) level, guidance was also used to manage the criminal courts’ operation. Here less material is publicly available. One circuit that has made significant amounts of guidance accessible is the Northern Circuit.Footnote ⁸⁸ Such local guidance can, again, be understood to fall under the two broad headings of best practice guidance and general listing decisions. Examples of the former are: guidance on the use of BT MeetMe, as a means to hold remote hearings;Footnote ⁸⁹ and information on the reopening of court buildings, including public health guidance.Footnote ⁹⁰ Examples of the latter include: guidance on the return of jury trials in North Wales, which includes a combination of public health guidance concerning the holding of trials and general listing directions;Footnote ⁹¹ and general listing guidance for virtual (remote) hearings.Footnote ⁹² The basis for such listing guidance on a local, circuit, level is set out in the Criminal Practice Direction.Footnote ⁹³

In addition to judicial guidance, from the start of the pandemic, HMCTS issued operational guidance concerning the administration of the courts. At its most basic, this was intended to ensure that court hearings were conducted consistently with government public health guidance,Footnote ⁹⁴ as well as showing how to access remote technology to take part in criminal proceedings.Footnote ⁹⁵ Where the public and media are concerned, practical guidance was issued explaining what steps could be taken to access remote hearings, where that was permitted by judicial decision.Footnote ⁹⁶

V. Appraising the approach taken in the Criminal Justice System

In this section of the article, we appraise the use of soft law in the criminal justice system during the pandemic. It considers two issues, both of which focus on clarity: first, in terms of what guidance was in place and when; and second, in terms of the nature of the guidance – was it soft or hard law? Generally, what can be seen is that the approach taken to the use of COVID-19-linked guidance in the criminal justice system has avoided some of the problems identified above in respect of the government’s use of soft law as a regulatory response. That is not to say that there is no room for improvement.

One criticism of the government’s approach during the COVID-19 pandemic has been the lack of clarity concerning soft law publication. As noted above, while government guidance carries the date on which it was published or updated, it does not maintain links to previous versions of guidance or illustrate how documents have been updated. Its guidance is also spread across a host of websites, ie there is no single repository of government guidance. It is thus difficult to ascertain what guidance was in place at any particular time. HMCTS take a more effective approach to the judiciary in terms of accessibility to obsolete and previous versions of documents. HMCTS’s webpages provide access to updates that were issued on specific dates. Those updates provide links to guidance as issued at that time, where it was issued by HMCTS. In that way, it is possible to ascertain what guidance was in place at any particular time and to track changes in guidance by date. The judiciary’s website does not maintain such a historic record. While the judiciary does have an “Archived Messages and Guidance” section on its guidance webpage, this only contains five sets of such guidance, none of which relates to the criminal courts. While that might mean that only five such sets of guidance are now obsolete and have been overtaken by later guidance, it is apparent that that is not the case. That is clear from the judiciary’s approach to document version control. Like the government, when the judiciary update their guidance, they indicate as much by date or by reference to a version number. For instance, Listing Guidance for the Magistrates’ Courts was originally issued on 14 April 2020. It was amended on 7 July 2020. The amendment is by way of an addition highlighted in red. The original version of the guidance is not archived. It is not therefore possible to say what the amendment was, ie was the text in red entirely new or an amended version of the previously published text? Ironically, the original version can be accessed via HMCTS’s daily updates for 24 April 2020.

A more substantive criticism of the judiciary’s approach concerns clarity regarding the nature of criminal justice guidance that has been issued. While the judiciary have, generally, taken a more effective approach to differentiating between hard and soft law than the government during the pandemic, there have been exceptions. The suspension of jury trials by the Lord Chief Justice is one such exception. It was announced via a message on the judiciary’s website.Footnote ⁹⁷ It did not provide any reference to or explanation of the basis on which the announcement was made. It could have been any one of guidance, a Practice Direction, or the first exercise of the Lord Chief Justice’s general discretion as provided by the Constitutional Reform Act 2005. It was, in fact, the last of the three, and hence hard law. This only became apparent as a result of legal proceedings, which focused on the validity of the suspension of jury trials.Footnote ⁹⁸ A similar lack of clarity was evident in the Coronavirus Crisis Protocol for the Effective Handling of Custody Time Limit Cases in The Magistrates’ and the Crown Court. It was issued as a Protocol, and hence appeared on the face of it to be soft law guidance. That conclusion is borne out by the majority of its substantive content. However, it also referred explicitly to setting out “rules of practice”, albeit it went on to state that the “relevant law was unaffected”; a point reiterated when the guidance was later withdrawn.Footnote ⁹⁹ There is an ambiguity here. The law referred to within the Protocol is both substantive and procedural law, the latter set out in the CrimPR.Footnote ¹⁰⁰ Clearly, such a document could not impact substantive law. However, stating that it sets out rules of practice could lead to the conclusion that it was intended to create new rules of practice, and the reference to leaving the law unaffected was a reference to the substantive law. Rules of practice can, however, be made by only statutory instrument and Practice Directions can be made only by the procedure set out in the Courts Act 2003.Footnote ¹⁰¹ As such, the Protocol clearly could not have set out rules of practice in the strict, hard law, sense as it was neither a statutory instrument nor made under the Courts Act 2003 procedure. Given this, it may well have been better for the Protocol to have stated that it set out “rules of best practice”, to more properly reflect the fact that it was not seeking to vary or add to the CrimPR, and made clear therefore that it was soft law.

A related issue in respect of clarity concerning the nature of guidance issued arose in respect of the Local Practice Direction 1/2020 concerning the Crown Courts in Lancashire.Footnote ¹⁰² It was explicitly said to set out binding directions; ie it was hard law. In this, it differs from other such Circuit-based regional guidance issued, as well as the Coronavirus Crisis Protocol discussed above. On the face of it, it could not, however, have been a Practice Direction, as it was not issued with the concurrence of the Lord Chief Justice and the Lord Chancellor.Footnote ¹⁰³ Consequently, it would have been soft law despite its wording. Given its substantive content, however, it is clear that it is in fact binding hard law as it is a general listing direction analogous to that issued by the Lord Chief Justice,Footnote ¹⁰⁴ concerning jury trials, noted above. Our point here is that this document lacked prima facie specificity as to its own nature.

What we can see here is the judiciary, in a small number of circumstances, issuing guidance documents that are in reality binding decisions, yet there is a lack of clarity over their vires. In others, guidance has been issued that could be said to have the appearance of being binding when it is in fact only best practice. A small number of changes, drawing on existing practice in the civil courts and previous practice in the criminal courts, could be made to ensure that clarity is achieved. Prior to the introduction of the statutory scheme for making Practice Directions in 2005, little to no differentiation was made in civil proceedings between what were called Practice Directions, Practice Statements and Practice Notes. Some, irrespective of their title, were hard law (ie a “true” Practice Direction); others were soft law.Footnote ¹⁰⁵ With the introduction of the statutory scheme, the term Practice Direction has been reserved to (true) Practice Directions issued under that scheme.Footnote ¹⁰⁶ The approach taken in the civil courts could beneficially be adopted in the criminal courts. If adopted, it would provide a clear indication of what was hard law and what was soft law.

Additional clarity has also, generally, been provided by Practice Guidance specifying that it is issued as guidance and not as a Practice Direction. While that approach has generally been adopted in the civil courts, it was also applied to the criminal courts’ Twitter Guidance, discussed above.Footnote ¹⁰⁷ Alternatively, all soft law guidance issued by the judiciary could explicitly state that it is not intended to be prescriptive.Footnote ¹⁰⁸ If these further approaches were adopted in the criminal courts, greater clarity would arise as to what was and was not intended to be guidance and what is law. Similarly, where the intention was to issue binding directions that were not rules of court or Practice Directions, clarity could be given by adopting either the approach taken by the High Court’s Queen’s Bench Division’s Senior Master, where the Senior Master issued a general direction as a court orderFootnote ¹⁰⁹ or by specifying that it was a listing direction or a general listing direction. And where there was a need for new rules of practice to be issued, which would require an amendment to the CrimPR and which could not, therefore, be achieved via the Practice Direction-making power,Footnote ¹¹⁰ the CrimPR could be amended for the future to enable temporary rules, which could vary or amend the CrimPR subject to a time-limited review or sunset clause, to be made by Practice Direction during an emergency. In this way, greater clarity and transparency could be achieved and, with the final proposed change, an effective mechanism for rule change during emergencies could be introduced so as to ensure that hard law was not issued in the guise of soft law. If the judiciary were to do so they would reduce the risk of inadvertently going beyond their proper powers or giving the impression that they had done so. Given that the judiciary are the guardians of the rule of law, it would appear imperative that they take such steps. Where a criminal conviction is a possibility and individual liberty is at risk, the importance of that imperative cannot and should not be underestimated. On the contrary, satisfying it is a necessity in all circumstances, pandemic or otherwise.