The Role of Soft Law in Times of Crises

Characterised by features of informality, soft law instruments are often used to take the swift and urgent action that is needed in times of crisis. At the same time, the use of soft, non-legally binding instruments may have undesired side-effects, raising questions about their effectiveness and legitimacy. This chapter explores the role of soft law instruments to address the COVID-19 crisis in the Netherlands. Alongside Dutch legally binding COVID regulations, various soft instruments were issued taking the form of inter alia ‘template regulations’, ‘guides’, ‘action frameworks’, ‘questions and answers’ and informal ‘dialogues’. The analysis shows that the role of these documents in addressing the crisis needs to be seen against the Dutch regulatory and constitutional context. It finds that the provision of guidance and support allows for dialogue, (better) alignment, and convergence between different levels of government. However, the use of soft law risks de facto limiting the room for differentiation and tailored decision-making at the regional or local level. What is more, the legal status and binding effects of the soft law instruments might not always be crystal clear, and the issuing of COVID-19 soft law rules has low democratic credentials. At the same time, it should be kept in mind that the major advantage of soft rules is that they can be swiftly issued and revised, without the need for cumbersome issuing processes. This then leads to the conclusion that meta-regulation of (Dutch) soft law, and the specific category of Dutch guidelines (richtsnoeren) in particular, requires further study and research.