Fettering scrutiny on executive discretionary powers? Developments in the judicial reviewability of ministerial non-statutory guidance

This article examines the Supreme Court’s clarification of the law relating to the judicial review of soft law. In doing so, it offers a fresh perspective on how soft law sits within the legal framework. While much literature to date has attempted to theorise the nature of soft law, or focus on judicial review strategy, this article examines the role that soft law plays in the modern regulatory state. It then examines the treatment of these instruments by the courts, with particular attention paid to the 2021 joined decisions of R(A) and BF. The Supreme Court reversed a more expansive trend evident in preceding Court of Appeal case law and reinforced the primacy of the narrower approach to review seen in the Gillick judgment. Unlike other research on these judgments, this article problematises these decisions by showing how this limits the ability of particularly vulnerable applicants like children to challenge decisions due more to systemically flawed policies than to ad hoc misapplications of soft law by end users. How the Supreme Court could in future occupy a role as a mechanism for legal accountability of discretionary executive powers is also discussed; should the judicial branch of the state avail of the opportunity to make declaratory orders or endorse practice directions that might better regularise the making of soft laws in the future. The article then discusses the wider constitutional problems raised by use of a Gillick-inspired approach, including issues relating to lack of judicial scrutiny of soft law.