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Hard Law and Soft Law - in the context of local government

Dr David Sykes analyses the role soft law plays the decision-making of local authorities and other local democratic institutions.

There is no dispute that local government occupies a position of importance in the lives of their local citizens, including those who come in and out of their area for recreation and/or work and use their services. Of all government services those provided by councils most directly affect the day-to-day lives of individuals. The influential Harold J Laski[1] in his writings identified the place of local government and its key decision making role correctly when he stated:  ‘We cannot realise the full benefit of democratic government unless we begin by the admission that all problems are not central problems in their incidence and that the result of problems in their incidence requires decisions at the place, and by the persons, where and by whom the incidence is most deeply felt.’ Thus local authorities can be vehicles of social change in their specific local environment.

This article examines the use of the terms ‘hard law’ and ‘soft law’ and particularly the extent to which soft law is understood, both in the role of decision making and its effect in a local government context. These terms may be unfamiliar to us, although we have been exposed to the adjectives’ hard’ and ‘soft in connection with the Brexit discussions. I recently had a period of inactivity following major surgery, during which time I reflected upon our use of language in the law and the extent to which we understand the phrases we use, especially in our communications and decision-making in local government. Soft law instruments have particular reference to the everyday decisions made by council staff at the ‘coal-face’, whether in housing, social and children’s services, planning or fiscal matters. My concern is that soft law is poorly understood, but is vital to an understanding of bureaucratic decision-making in the context of local democratic institutions, such as local authorities.

‘Soft law’ sounds distinctly like an oxymoron, yet how can one ascribe the word law when for decades such soft law instruments which have no legal effect are still be treated as though law? [2]

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After my brief introduction the second part of my article attempts a definition of what is meant by soft law and the instruments that are normally considered to be part of it, with the caveat that an exhaustive definition is not possible. Part 3 deals with the purpose and effect of soft law, whilst Part 4 states the perceived advantages and disadvantages of soft law and examines the interaction between soft law and hard law. Parts 5 and 6 analyse the extent to which soft law instruments are justiciable by the courts, in particular the use of judicial review or whether there are better alternative forums outside the scope of the courts, such as the Local Government and Social Care Ombudsman (formerly the Local Government Ombudsman) by a claimant seeking remedial redress. We will deal with challenges to decisions made by local authorities under soft law instruments, such as guidelines, policy statements, handouts or Practice leaflets, where such literature contains assurances and promises of future benefit. This means a brief incursion into substantive legitimate expectation and its case law. Part 7 is my conclusion.

Defining Soft Law

Soft law or grey law[3] has it has been referred to is of course not new, but is not a term whose content is agreed upon and has been a topic of mainstream academic consideration for at least 70 years. [4] Soft law was in fact known in Roman times, because although the decrees of the Senate were, in practice, usually obeyed-though, as these did not have the force of law, there was always the awkward question of what would happen if the decree  of the senate was flouted or simply ignored.[5] It is clear that soft law means different things to different people. This statement does not, however, take us very far. We can say that soft law is not primary legislation that has gone through the rigours of Parliamentary scrutiny (including parliamentary debate and public consultation hearings) or delegated legislation made under such statutes. These instruments are forms of ‘hard law.’ Delegated legislation is defined by Pearce and Argument[6] as comprising instruments of legislative effect made pursuant to the authority of Parliament. Indeed one of the most difficult issues in dealing with quasi–legislation is to work out exactly what sort of creature quasi-legislation is.[7]  As a generic form, there is a view that soft law conceals as much as it reveals, but as CM Chinkin states: ‘it is unhelpful and a ‘misleading simplification’.[8] Daniel Greenberg has characterised soft law as ‘the third bite of the cherry’ [9], through which the executive attempts continuously to control the interpretation of primary and secondary legislation by means of guidance that can be revised or replaced at will.  This characterisation helps us to understand the motives behind the use of soft law, but takes us no further in explaining what soft law instruments consist of.

Although delegated legislation is not a term of art we can say with certainty that soft law does not include delegated legislation. Baldwin described delegated legislation as ‘secondary legislation’, which he distinguished from ‘primary’ legislation that which is passed by Parliament and ‘tertiary legislation.’[10] I prefer not to refer to soft law as quasi-legislation as I regard it as confusing. Soft law cannot in theory bind decision-makers, although my concern is that in practice it often has much more influence than statutory enactments.

It is possible for ethical codes to be enacted in a statutory form, but in this analysis I am concerned with non-legislative ethical codes and policy guidelines-the important fact to understand is that they are not laws passed by a legislative body. Rather, they are issued by a variety of public sector bodies, including local authorities, as an internal restraint on, or as a guide for bureaucratic decision–making. As Professors Lorne Sossin and Charles W Smith state in their excellent 2003 article: ‘In other words, they are developed by and applicable for unelected officials exercising public authority.’[11] In the context of local government we can qualify this statement in that of course Councillors are elected at local government elections, but not their council staff.

Soft law instruments are known to the international lawyer. For example, UN General Assembly resolutions are an example of soft law,[12] but the notion of soft law and its translation into the public law realm has not often been the subject of discussion? Descriptions of soft law do embrace a number of instruments which will however, be familiar to the local government lawyer. It will be helpful therefore to refer to these instruments. Many attempts have been made to compile a list of the different types of soft law instruments. I question the wisdom of such lists, because although instructive in some ways, they do not do justice to the broad spectrum of instruments included. Academics have stated that: ‘listing different soft law instruments is an unsatisfactory manner in which to define soft law, with such lists tending ‘to be over-inclusive, while not giving sufficient information to enable a classification to be made.’[13]  My view is that the instruments which fall within the term ‘soft law’ remain elusive and that ‘such lists must therefore be seen as providing examples of what soft law includes instead of being definitive of what soft law is.’ [14]

It may be convenient to record now that not every non-statutory instrument is soft law. For example, contracts are not soft-law, because they derive their binding legal effect from the consent of the contracting parties. We can however, say that soft law operates on a wide spectrum and academics, such as Lorne Sossin include ‘rules, manuals, directives, codes, guidelines, memoranda, circulars, bulletins as well as, correspondence, and employee handbooks and training materials.’ [15] In my view soft laws have variable degrees of ‘softness’ and that a rigid taxonomic approach would ignore that fact. The soft element may differ along the spectrum. For example, with mere guidance or general practice directives on the one hand to soft law instruments which are all but compulsory to follow, because they sets out the process to follow, say if you want to apply for a market licence.

The purpose and effect of soft law

Soft law is unlikely to disappear from the regulatory landscape[16] and this section therefore assesses the legal force of soft law - its perceived legal status. Richard Rawlings states: ‘Soft law’ is a fact of public life. Cast in terms of competing demands for flexibility and responsiveness, and consistency and coherence, official business could not sensibly be carried on without, to adopt a generous definition, rules of conduct or pointers and commitments which are not directly legally enforceable but which may be binding in particular legal or institutional contexts.’ [17]It is more difficult to assess the legal force of soft law, [18] but not so in connection with promises made by local authorities, orally or in writing, whether comprised in policy statements or to specific individuals. English jurisprudence, as we shall see later allows judicial review challenges where a public body has made a substantive promise to a person.

A behavioural influence

A feature of soft law is that it takes effect through influence rather than as an expression of positive law.[19] It is a regulatory tool and does not rely on formal consequences of breach for its effectiveness like a breach of statute, but on the general belief that soft law represents an officially-sanctioned norm. Soft law guides behaviour and applies influence in less tangible form and tends to come cloaked in the ostensible authority of the state and owes much of its effectiveness to that fact.[20]

Soft law is typically defined as non-legally binding law. However, it can have practical and indirect legal effects. Some argue that soft law does not create as strong an obligation to comply with its dictates as hard law, but nonetheless carries its own unique advantages. Political scientists therefore use the term ‘soft law’ to describe rules that guide behaviour, but have not yet achieved the formal status of ‘hard law’. The ARC reported that a number of participants in its research had ‘agreed that in practice soft law can be as influential in behaviour as black letter law.’[21]

Soft law instruments are effectively non-statutory rules devised by administrative bodies, such as local authorities to provide decision-making guidance, particularly in administering legislation. To the extent that ‘guidance’ can be equated with ’influencing behaviour’, policy and soft law occupy common territory. [22] In an Australian decision[23]  dealing with guidelines developed by the Victorian Civil and Administrative Tribunal in relation to the award of costs Gillard J discussed guidelines as a form of soft law-in terms which could equally have applied to the legal standards which apply to policy.

Adopting reasoning which departed from the rest of the Appellate Committee of the House of Lords, Lord Steyn stated in McFarland (in re MacFarland [2004] 1 WLR 1289, 1299

‘In respect of the many kinds of ‘soft laws’ with which we are now familiar, one must bear in mind that citizens are led to believe that the carefully drafted and considered statements truly represent government policy which will be observed in decision-making unless there is good reason to depart from it.’  

Advantages and disadvantages of soft law

Advantages

The practical advantages of soft law are self-evident. For example, they can be made by local authorities without undue delay and the complexity that may be associated with the creation of legislation; they are flexible, cheap and largely immune from judicial review. This latter aspect of lack of accountability is of paramount importance to ultimate service users.

I argue that used correctly soft law can be a useful addition to local authorities in getting across their policies to service users. Whilst the emphasis is on the lawfulness of a decision, local authorities nevertheless incorporate into their pamphlets and guidance notes ethical obligations thus making their official decisions with reference to a set of values. As Creyke states: ‘The demands of a more professional, values-orientated public sector have outstripped the underlying standards prescribed by administrative law legislation and case law. Something more is required. It is here that soft law has its place.’[24]

Disadvantages

There are a number of disadvantages to the use of soft law, including the major fact that the regulation in question has not been subject to scrutiny in Parliament (Committee or otherwise) as is the case with primary legislation and delegated legislation. Thus, soft law may have the effect of insulating public bodies, including organs of local government from review of their policy guidelines and literature. Practical concerns may also centre around the fact that soft law is generally drafted by ‘loving hands’ at local authorities with the attendant problems of lack of clarity and, in some cases legal errors that can arise. For example, a policy guidance note may be included in a single document that contains both voluntary and mandatory requirements, with little distinction, thus causing confusion to the council service user.

Another danger is that local authorities will attach too much of an inflated nature to their own policies and therefore fail to provide certainty and consistency to their officials who have to operate policies in their daily decision-making. 

Another issue is that of accountability. The use of soft law leads to back-door regulation that is difficult to assess, gives too much discretion to regulators, and sets higher compliance standards than are required by law.

Soft law instruments are not tabled in Parliament for scrutiny and thus may not be exposed to local public consultation. The ultimate council user is often excluded. The contrary, is of course true of a statute which will be vigorously examined in its passage through both Houses of Parliament.

I feel at this juncture that it is appropriate to briefly refer to the use and control by local authorities of Byelaws. Byelaws are effectively local laws to deal with local issues. They are made by local authorities under powers granted by Act of Parliament,[25] and so are a form of delegated legislation and therefore do not fall into the category of soft law. If validly made, byelaws have the force of law within the areas to which they apply and are enforceable by the local authority through the magistrates’ court and contravening a byelaw can result in a fine upon successful conviction. In connection with levels of scrutiny under the new arrangements accountability for making byelaws is transferred to local councils who must ensure that they are proportionate and reasonable, but there is the oversight of the Secretary of State who will, consider the draft byelaws, report and deregulatory statement by the local authority and will, within 30 days, either give leave to make the byelaw, or not give leave to make the byelaw.

The justiciability of soft law instruments

Justiciability has been the buzz word around the recent legality of the prorogation of Parliament, and is also a major consideration in the area of soft law. How far are soft law instruments challengeable in a court of law? This section addresses whether soft law can ever be the subject of court proceedings. In this context it is helpful to look at the courts approach when dealing with legitimate expectation claims by service users of a local authority. As we know the challenge may be made on the basis of a procedural or substantive legitimate expectation. If, therefore, a soft law instrument is couched in promissory form it may be the basis of a judicial review claim.

Apart from recourse to judicial review (where possible) I agree with Associate Professor Greg Weeks statement that: ‘the best way to remedy breaches of soft law appear also to be ‘soft’, such as recommendations of the Ombudsman and discretionary schemes for ex gratia payments.’[26]

Soft law and judicial review

Guidelines are an instrument of soft law, which are often issued in a local government context to serve as a vital interpretative function in translating into administrative action the legislative intent of Parliament on the subject under review. Sometimes promises are made by councils in their policy guidelines and pamphlets that are issued to users. For example, explaining their approach to allocation in their housing policy. This section therefore, briefly looks at breaches of a legitimate expectation, whether procedural or substantive triggered by assurances given by a local authority to a service user. To what extent can such guidelines literature be subject to a challenge by judicial review? Clearly if the guidelines are beyond the jurisdiction of a local authority or a decision was based on the fact that the decision maker either ignored a guideline or allowed their discretion to be fettered judicial review will be appropriate, but as Professor Sossin states: ‘What appears to be beyond the scope of judicial review are issues most critical to the accountability and coherence of discretionary decision-making-in other words, the form and content of the guidelines themselves.’ The remedy of judicial review is therefore somewhat limited when it comes to soft law and almost none of the law’s existing remedial doctrines are effective to remedy any loss caused by reliance on soft law. ‘To the extent that such remedies are dependent on first establishing an instrument’s lack of legal validity, they miss the mark because soft law never relies on legal validity to be effective.’[27] I agree with Mark Aronson when he states:  ‘the further a regulatory regime travels from the legal paradigm, the less relevant is judicial review as an accountability device.’[28]

Notwithstanding these academic comments, Judicial review is not impotent in the UK, because it is possible to point to the development of the concept of substantive legitimate expectation that has taken UK courts into considering promises and assurances made in local authority literature (including communications by the executive and ministers) and whether accountability ensued or not. At the outset it is correct to state that the court’s role is not to substitute its own judgment for that of a democratically elected local authority.[29]

Soft law instruments had been the subject of judicial consideration in the past and will continue to be so.  One can refer to two 2011 Supreme Court cases of R (Davies) v Revenue and Customs Commissioner[30] and The Queen (on the application of Elayathamby) v The Secretary of State for the Home Department [31] as examples and illustrative of the divergence of judicial interpretation in such matters.

In Davies the issue was whether a tax guidance booklet issued by the HMRC gave rise to a legitimate expectation that a benevolent approach would be adopted in determining whether a taxpayer would be treated as not resident or ordinarily resident in the UK for tax purposes. Their Lordships decided in favour of the Inland Revenue. There was, however a difference of interpretation between Lord Wilson and Lord Mance. Lord Wilson stated: ‘It is better to forsake any arid analytical exercise and to proceed on the basis that the representations in the booklet for which the appellants contend must have been clear; that the judgment about their clarity must be made in the light of an appraisal of all relevant statements on the booklet when they are read as a whole.’[32] Lord Mance on the other hand in his dissenting judgment stated: ‘My own view….is that to treat [the relevant booklet] as pregnant with the detailed implications listed [Lord Wilson’s speech at] paragraph 45 (or, in summary, as informing an ordinarily sophisticated taxpayer of a need for a ‘multifactorial evaluation’ of his or her circumstances and for a ‘distinct-break’) runs contrary to the wording and sense of the document itself but also to its genesis and purpose…’

The second case where a similar lack of uniformity of judicial approach was identifiable is The Queen (on the application of Elayathamby) v The Secretary of State for the Home Department and concerned whether an internal guidance memorandum to decision makers gave rise to any legitimate expectation. Here the claimant had relied on a statement in the Secretary of State’s mandate refugees policy that applications for settlement were to be considered under the Convention relating to the Status of Refugees 1951 (United Nations) and contended that he was entitled to have his claim for asylum considered and that the Dublin Regulation (this allowed the UK to claim that a different member state, not them was responsible for considering the asylum claim) would not be applied. Sales J (now Lord Sales) rejected this contention. He relied on a contextual approach and stated: ‘The context in which the statement relied upon by the Claimant appears is given by the mandate refugee policy, read as a whole. In my view, it is clear that the main point of the policy is to explain to UK Border Agency officials….I think the relevant statement is properly to be read as a reminder to officials….’ This decision can be compared with another 2011 decision of R (Jackson) v DEFRA [33] where McCombe J held that an instruction to DEFRA staff requiring them not to mix samples did give rise to a legitimate expectation.

I also refer to a fourth case The Queen (on the application of Alansi) v London Borough of Newham[34]decided by Mr Justice Stuart-Smith which directly involved a local authority, and concerned their housing allocation policies. The background of the case was as follows. Newham council owed a statutory duty to the complainant under s.193 Housing Act 1996. It decided to try and reduce the number of persons in temporary accommodation by a bond scheme, under which they agreed with a private landlord to provide them with an incentive payment and a bond or deposit so that a household could be granted an assured shorthold tenancy in the private sector. That Bond Scheme was run in conjunction with the Council’s allocation scheme.[35] Para 11 of the judgment is important because it refers to evidence given by the council that there was an established practice whereby the council routinely gave written assurances to people who were contemplating the Bond Scheme or who took up a qualifying offer under it in the same terms as were given to the Claimant. Justice Stuart-Smith at para 7 states: ‘On the evidence, the Defendant’s purpose in giving the assurance that the Claimant would retain the right to bid for permanent council accommodation was to induce her to take up a private rented tenancy…’ He went on at para 11 to state: ‘ The precise justification for the practice is unclear, though it appears likely that it originated and operated as an exercise of exceptional discretion at officer level which was known and sanctioned by the Defendant as a regular and routine practice in such cases.’ The concept of legitimate expectation featured large in this case where Mr Justice Stuart-Smith analysed present case law on legitimate expectation in 17 paragraphs.[36]

An express assurance was given in October 2009 to the complainant that she would retain her Priority Homeseeker status for as long as she continued to reside in the accommodation she obtained under the Bond Scheme. She signed declarations attached to documents issued by the council which explained the Bond Scheme. The document stated: ‘If you continue to reside in a property you have accepted as a qualifying offer, your application on the Council’s Allocations Scheme will not be affected and you will retain your ‘Priority Homeseeker’ status.[37]Further, a letter dated 20th January 2010 stated: ‘I can confirm that you will retain the Priority Homeseeker status on the Council’s Allocation Scheme and can continue to bid for properties advertised under Choice Based Lettings.’  At para 38 the learned judge stated: ‘I therefore conclude that the representations and assurances made by the Defendant to the Claimant were clear and unambiguous and were to the effect that she would retain Priority Homeseeker status and would be entitled to bid for permanent accommodation without limitation as to time…’

However, the judge interestingly considered in his interpretation of the assurance wordings what those assurances did not say, namely that they did not bind the council from making no changes to the categories of persons who would be entitled to bid or be included in the category of Priority Homeseekers or alter the priorities afforded to different sub-categories of persons within the overall Priority Homeseekers category.[38] He considered that it made no difference that the assurances were given in standard documents that stood outside the formal terms of the council’s policy.[39] The judge commented that the mechanism by which the policy was implemented was by individual assurances clearly acknowledging the use of soft law in the day to day decision making of a council.[40]

Alansi is a warning to those drafting council policy guidance literature for distribution to its service users and demonstrates how imperative it is to be as clear as possible on what assurances are being given and that if any caveats or limitations are to be present that they  are also to be precisely spelt out to the user. Mr Justice Stuart-Smith did comment that the council could have included a statement that the promise was qualified by a reservation of a right to withdraw in the event that they wished to change its housing policy in the future, but did not do so.[41] There is a duty of transparency to the ultimate users of council services.  

The leading case on substantive legitimate expectation of Coughlan[42] was distinguished from Alansi on a number of grounds, including that Newham’s decision was in the field of macro politics,[43] and a wider group of persons were affected by the assurances than in Coughlan. The reader will recall that Coughlan concerned a personal promise to a small group of persons.              

Non-Judicial Remedies

In my opinion the most effective remedies for misuse of soft law are likely to be ‘soft’, because the courts have few current tools at their disposal for dealing with such matters. The aggrieved party must therefore look to non-judicial avenues, such as the Ombudsman’s office. In the context of local government this is the Local Government and Social Care Ombudsman who deals with thousands of complaints each year[44] and is able to adapt a remedy for each complainant, which may be an apology or some financial compensation. Their decisions are not binding, but in practice local authorities will often accept their findings and any suggested solution. The LGO reports that less than 1% of cases are not complied with in full. It is this adaptability that makes the Ombudsman’s service of such potential importance where individuals are adversely affected by applications or failures to apply correctly soft law. It is important to understand that the Ombudsman’s sole function is to act as a form of resolution agency. It does not, cannot and should not operate in a judicial like manner. This non judicial role is emphasised by the offices lack of power to enforce its will on the local authority it investigates. Instead, local authorities retain full administrative discretion for implementing the determinations of the Local Government and Social Care Ombudsman.[45]

Nevertheless, the Ombudsman’s value has been acknowledged by the judiciary for as LJ Mummery states:

‘The new processes have the advantage of being able to produce outcomes that are more flexible, constructive and acceptable to both sides than the all-or-nothing results of unaffordable contests in courts of law.’[46]

Conclusion

I agree with Professor Richard Rawlings when he states: ‘Enough has been said to show why public lawyers, or at least those interested in the real world of public power, should take soft law seriously. At one level, the day to day functioning of the constitutional and administrative law system can only be understood with reference to the broader mass of soft law usages.’[47]

My conclusion is that whilst there is undoubted practical value in using soft law, there are obvious dangers that need to be built into our public law review mechanisms. These developments have taken local government outside the traditional framework of administrative law accountability and replaced by home grown standards of individual officers of local authorities themselves. I believe that soft law and its development must become a central concern for administrative law and public administration alike and that it is therefore imperative that council literature be vetted by the legal department before it is issued. This is not an academic exercise, but of practical significance: there must be careful scrutiny of explanatory literature, including policy documents, guidance notes or brochures to make sure that no assurances or promises are being given to the recipient service user, which would trigger a judicial review challenge on grounds of breach of legitimate expectation, whether procedural or substantive.

The importance the judiciary places on local authorities keeping their promises is clearly shown by the Privy Council in Paponette V Attorney General of Trinidad and Tobago [2013] 3 W.L.R. 219 where they approved and applied the passage from the judgment of Schiemann LJ in R (Bibi) v Newham London Borough Council [2002] 1 WLR 237 at paras 49 and 51; that an authority is under a duty to consider the promise that has been made    properly in its decision making process. The Board held:

‘Where an authority is considering whether to act inconsistently with a representation or promise which it has made and which has given rise to a legitimate expectation, good administration as well as elementary fairness demands that it takes into account the fact that the proposed act will amount to a breach of the promise. Put in public law terms, the promise and the fact that the proposed act will amount to a breach of it are relevant factors which must be taken into account.’ [48] (my emphasis)

Thus, local authorities must manage correctly the risk factor of any potential proposal and cover all aspects of their decision making process, making sure that it is legally compliant, rational, Wednesbury reasonable and proportional and that if their policies are implemented (whether in whole or part) by individual promises and need to be paired back or restricted in any way that it is only fair that such limitations are clearly stated.

By subjecting guidelines to greater public scrutiny and less legal uncertainty, local government will be in a better position to justify the rules by which public officials operate, and defend the political preferences these rules reflect. I leave the final word to Professors Lorne Sossin and Charles W Smith when they state that: ‘In the final analysis, public administration is not principally a field of technical expertise or ethical rules, but rather a forum for making and implementing hard choices in the public interest.’[49]  (my emphasis)

Dr David Sykes is a former local government solicitor.

[1]A Grammar of Politics’ London, George Allen & Unwin, 1978, p.411

[2]  Associate Professor Greg Weeks,’ The use and enforcement of soft law by Australian public authorities’ Federal Law Review Volume 42(1) 2014, 1-37 p.1

See also by same author, Soft Law and Public Authorities, Hart Publishing 2016 which although concentrates on the use of soft law in Australia  is useful for information generally on the subject of soft law

I express my thanks to Professor Maurice Sunkin QC for reviewing this article and his valuable insightful comments

[3] See Commonwealth Interdepartmental Committee on Quasi-regulation, Report Grey-Letter Law (1997) (Grey-Letter Law Report)

[4] See Sir Robert E Megarry ‘Administrative Quasi-legislation’ (1944) 60 LQR 125 – Professor Craig traced the use of the term ’quasi-legislation’ back to the nineteenth century –see PP Craig Administrative Law, 7th ed (London, Sweet & Maxwell, 2012) 472.

[5] Professor Mary Beard, SPQR: A History of Ancient Rome’ (Profile Books, 2015) 32-33

[6] Delegated Legislation in Australia, 4th ed Sydney, Lexis Nexis

[7] See Stephen Argument, ‘Quasi-legislation: Greasy Pig, Trojan Horse or Unruly Child?’ (1994) I Australian Journal of Administrative Law 144, 144

[8] , ‘Challenge of soft law’ (1989) 38 ICLQ, 850.: See also Laszlo Blutman, ‘In the Trap of a Legal Metaphor: International Soft Law’ (2010) 59 ICLQ 605

[9]  Daniel Greenberg, ‘Dangerous Trends in Modern Legislation (2015) PL 96, 99-100.

[10] Robert Baldwin, Rules and Government (Oxford, Clarendon Press, 1995) 60-80

[11] ‘Hard choices and soft law: ethical codes, policy guidelines and the role of the courts in regulating government', 40 Alta. L. Rev. 867 at p 868

[12] International law relies on the suitability of soft law because it is more amenable to attracting political consensus in international affairs where harder forms of regulation may be resisted.

See the seminal work of Richard R Baxter, ‘International Law in ‘Her Infinite Variety’, International and Comparative Law Quarterly 29.4 (1980): 549-566 where he approaches soft law as one element among the many varieties of international law and as one that expresses a ‘different intensity of agreement.’ (p.566)

[13] Professors Robin Creyke and John MacMillan, ‘Soft Law versus Hard Law’ in Linda Pearson, Carol Harlow and Michael Taggart (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson’ (Hart Publishing, 2008) 377,380

[14] Associate Professor Greg Weeks,’ The Use and Enforcement of Soft law by Australian public authorities’ Federal Law Review Volume 42(1) 2014, 1-37 pp.1  3

[15] ‘HARD CHOICES AND SOFT LAW: ETHICAL CODES, POLICY GUIDELINES AND THE ROLE OF THE COURTS IN REGULATING GOVERNMENT.’, 40 Alta. L. Rev. 867 at p 868 p.871

[16] See  Carol Harlow and Richard Rawlings, Law and Administration (Cambridge University Press, 3rd ed,2009) 203-22

[17] ‘Soft Law Never Dies’ in Mark Elliott and David Feldman (eds) , The Cambridge Companion to Public Law (Cambridge University Press, 2015) 215

[18] See R Baldwin, ‘Rules and Government’ (Oxford, Clarendon Press, 1995) 60

[19] see R Creyke and J McMillan, ‘Soft law versus Hard law’ in L Pearson (Eds), Administrative Law in a Changing State (Oxford, Hart Publishing, 2008) 377,379.

[20] Associate Professor Greg Weeks, ‘Soft Law and Public Liability: Beyond the Separation of Powers’ (2018) 39 Adelaide Law Review. Notwithstanding that this article deals with the situation of soft law in Australia a great deal of the observations can be related to the jurisdiction in England and Wales.

[21] see Complex Legislation Report (2008) 5

[22]  Supra 8 p 16, where Creyke discusses whether soft law is simply policy by another name.

[23]  Vero Insurance Ltd v Gombac Group Pty Ltd [2007] VSC 117

[24]  Supra 8 p. 17

[25] See The Byelaws (Alternative Procedure) (England) Regulations 2016. The regulations simplify the procedures for making new byelaws and amending byelaws, including replacing the Secretary for State for Housing, Communities and Local Government’s role in confirming byelaws.

See further https://www.gov.uk/guidance/local-government-legislation-byelaws.

[26] ‘The use and enforcement of soft law by Australian public authorities’ Federal Law Review Volume 42 2014 p.1

[27] Associate Professor Greg Weeks, ‘Soft Law and Public Liability: Beyond the Separation of Powers.’ (2018) 39 Adelaide Law Review , 303-330 @ p.319

[28] ‘A Public Lawyer’s Responses to Privatisation and Outsourcing’ in Michael Taggart (ed) , The Province of Administrative Law (Hart Publishing, 1997), 40,47 He refers specifically to the regulatory scheme considered in R v Panel on Take-Overs and Mergers; Ex parte Datafin plc [1987] 1 QB 815.

[29] See R (Alansi) v London Borough of Newham [2013] EWHC 3722 (Admin), Mr Justice Stuart-Smith @ para 50

[30] [2011] 1 WLR 2625

[31] [2011 EWHC 3182 (Admin)

[32] Supra 30, per Lord Wilson @ para 29

[33][2011] EWHC 956 (Admin), paras 67-69

[34] [2013] EWHC 3722 (Admin)

[35] Refer paras 3-17 headed ‘Factual Background’

[36] Paras 18-35, headed Legitimate Expectation-the Applicable Principles

[37] Para 8

[38]  Para 38

[39] Para 44

[40] Para 50

[41] Para 36

[42] R v North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213. This case involved a decision by the local Health Authority to the applicant, Miss Coughlan that it would be her home for life. close a residential facility for the severely disabled having previously assured

[43] ‘ Equally, for local authorities in general and the Defendant in particular, limited supply, heavy demand and central government pressure makes the allocation of housing a core political area.’ per Mr justice Stuart-Smith @ para 42

[44] In 2014/15 the LGO registered 20,286 new complaints and enquiries, 11094 were referred to its assessment team. 6314 complaints could not be dealt with because of lack of jurisdiction a, but the remaining 4780 complaints were investigated in detail.

[45] Evaluation of the Local Government Ombudsman in England, report dated April This email address is being protected from spambots. You need JavaScript enabled to view it.

[46] Shelley Maxwell v The Office of the Independent Adjudicator for Higher Education [2011] EWCA 1236 at [38] per Lord Justice Mummery     

[47]  Supra 17 p.272

[48] See further Dr D J Sykes ‘Promises, promisesLocal Government Lawyer dated 19th January 2017

[49] Supra 15p.893

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