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Guidance

Guidance issued by Government Departments has become an increasingly important form of quasi-legislation. This article discusses the status of guidance.

Overview of Topic

1. Statutes commonly empower a Minister or regulatory body to give guidance to a specified authority about  how particular functions are to be exercised.

2. Statutory guidance is a form of quasi-legislation, and does not attract automatically any of the normal provisions about publicity, enforcement or other matters.

3. Guidance, whether statutory or not, is not issued by statutory instrument and will not therefore be subject to the rules on printing and publication in the Statutory Instruments Act 1946.

4. If guidance is to be made public, therefore, express provision will be made by the statute that confers the power to give it, either permitting or requiring publication, and possibly specifying the manner in which it may or must be published. In particular, modern legislation may require guidance to be published on a website - see, for example, the Consumers, Estate Agents and Redress Act 2007 s.19A (Guidance for energy consumers -

"(6) The Council must publish the first version of the energy consumer guidance and the concise guidance on its website by 1 December 2011.")

5. Guidance is never mandatory, in which sense it differs from directions which may be (although they are not always). That being so, it is necessary for the statute that confers power to give guidance to specify what its effect is to be.

6. The normal approach is to require the body to whom guidance is addressed to "have regard" to it. The effect of a duty to have regard (or sometimes "due regard") to guidance is that the person to whom it is addressed must include it in the criteria applied in making the relevant decision or taking the relevant action. It is open to the decision-maker to decide that in the circumstances of a particular case the criteria specified in guidance are outweighed by other factors; and it is open to the decision-maker to decide that for any other reason the guidance requires to be modified or even disapplied to reflect particular circumstances. But it is not open to the decision-maker to ignore the guidance, or to determine that it is "wrong" in the sense of being misconceived or inappropriate in principle. A decision taken on that basis could be challenged through judicial review as having been taken unlawfully by reason of the statutory duty to have regard to the guidance.

7. Even if no express provision is made requiring decision-makers to have regard to statutory guidance, the courts will probably be prepared to imply a duty to have regard, on the grounds that without it the power to give guidance would be nugatory.

8. That applies, however, only in the case of statutory guidance, issued in accordance with an express statutory provision permitting or requiring a Minister or other public authority to give guidance. Government Departments and others frequently issue voluntary material which is described as guidance, but it is not quasi-legislation and there is in general no inherent authority for Ministers to give guidance to which citizens are required to have regard. (A regulatory authority may be able to issue voluntary guidance that will acquire a degree of authority as an expression of a general supervisory regulatory jurisdiction.)

9. Guidance is not included in the list in s.14 of the Interpretation Act 1978, which implies a power to amend, revoke and re-enact. It is likely, however, that the courts would be prepared to imply a power to vary or revoke, at least in a case where the context makes it unlikely (as it normally will) that Parliament could have expected a single set of guidance to last forever, without the flexibility to adapt to changing circumstances.

10. It is often unclear what degree of generality or specificity is permitted by a power to give guidance. As a general rule, a power to give guidance to a body about the exercise of its functions is likely to be construed as permitting only guidance of a general and strategic nature. There would probably have to be something express or clearly implied to permit guidance to attempt to interfere at an individual case-level.

11. The attitude of the courts to statutory guidance can be seen in the following illustrative decision:

" 35. In summary, therefore, the guidance does not have the binding effect of secondary legislation and a local authority is free to depart from it, even 'substantially'. But a departure from the guidance will be unlawful unless there is a cogent reason for it, and the greater the departure, the more compelling must that reason be. Conversely a minor departure from the letter of the guidance while remaining true to its spirit may well be easy to justify or may not even be regarded as a departure at all. The court will scrutinise carefully the reason given by the authority for departing from the guidance. Freedom to depart is not necessarily limited to reasons resulting from 'local circumstances' (see [18] above), although if there are particular local circumstances which suggest that some aspect of the guidance ought not to apply, that may constitute a cogent reason for departure. However, except perhaps in the case of a minor departure, it is difficult to envisage circumstances in which mere disagreement with the guidance could amount to a cogent reason for departing from it. "

R. (on the application of X) v Tower Hamlets LBC [2013] EWHC 480 (Admin); [2013] 3 All E.R. 157.

12. Farah v Hillingdon LBC [2014] EWCA Civ 359; [2014] H.L.R. 24:

"I accept, of course, that it is neither realistic nor necessary to expect already burdened local authorities to identify each and every paragraph of the guidance they have taken into account or provide an over-detailed set of reasons for reaching their financial conclusions."

13. Even non-statutory guidance can have a degree of legal effect in practice, in the sense of setting or influencing the standards by which compliance with statutory or common law duties will be determined by the courts. See, for example: "The Guidance is exactly that. It is not binding on a court and has no legal force. Nevertheless, in reality it forms the backdrop against which multidisciplinary medical teams conduct their assessments when they address what is described in the Guidance as "the complexity, challenge and pain of that most difficult of decisions: is the treatment we are providing no longer in the best interests of the child". Each of the experts has used the Guidance in this case."

A (A Child), Re [2016] EWCA Civ 759.

14. "The principle that guidance given by HMRC to taxpayers can give rise to a legitimate expectation is by now very well established. The origins of the principle can be found in the decision of the Divisional Court in R v IRC ex p M.F.K. Underwriting Agents Ltd [1990] 1 WLR 1545 ("MFK"). In that case financial institutions proposing to issue certain bonds made approaches to the Revenue seeking assurances that indexation gains on the bonds would be taxable as capital not income. When the Revenue later sought to tax the gains as income, the taxpayers complained that this was unfair and unlawful. The particular claims failed on the facts, but Bingham LJ accepted that if a taxpayer approached the Revenue with an inquiry as to how a proposed transaction would be taxed and received a clear ruling or statement, it would often be unfair for the Revenue to go back on it. For this principle to be applicable however the taxpayer had to put all his cards face upwards on the table, and the ruling or statement had to be "clear, unambiguous and devoid of relevant qualification" (1569G). Judge J agreed, also referring to the requirement for "complete frankness" on the part of the taxpayer about his proposals, and an "unequivocal statement" from the Revenue (1575A-B)."

R. (on the application of Veolia ES Landfill Ltd) v Revenue and Customs Commissioners [2016] EWHC 1880 (Admin); [2016] S.T.I. 2201.

15. Status of Guidance: "As was submitted by Ms Jenni Richards Q.C. for the Council and by Mr Bryan Cox Q.C. for Mr Doree, the guidance provided by the Council in the Indicative Sanctions Policy is just that; it is guidance. It does not have the force of statute or regulation. It is guidance of the kind contemplated by article 3(15) of the 2001 Order, published by the Council to indicate the general approach to be taken by panels to the imposition of sanctions. And as the title of the document makes plain, the guidance is not intended to be prescriptive; it is "indicative". Any doubt about that is dispelled as soon as one reads the "Introduction". The Council deliberately refrained from setting any "tariff" for sanctions, stated emphatically that the policy is "only guidance", and enjoined panels to "decide each case on its merits" - a principle which, it took care to add, "includes deciding what, if any, sanction to impose" (paragraph 2). The explicit purpose of the guidance was not to dictate to panels how they must proceed, but "to aid [them] in their deliberations and assist them in making fair, consistent and transparent decisions" (paragraph 3). The guidance provided by the Council in the Indicative Sanctions Policy is not akin to the code of practice considered in Munjaz. That code of practice had been prepared under section 118 of the Mental Health Act 1983, which required the Secretary of State to prepare it, consult upon it, and lay it before Parliament. As Lord Bingham of Cornhill said (in paragraph 21 of his speech), the code did "not have the binding effect which a statutory provision or a statutory instrument would have", but was "guidance which any hospital should consider with great care, and from which it should depart only if it (had) cogent reasons for doing so". Lord Steyn described the code of practice as "a very special type of soft law", which "(derived) its status from the legislative context and the extreme vulnerability of the patients which it serves to protect" (paragraph 44). He referred to the dictum of Sedley J., as he then was, in R. v Islington LBC Ex p. Rixon (1996) 1 C.C.L.R. 119, at p.123J-K, that local authorities may only depart from the Secretary of State's guidance under section 7(1) of the Local Authority Social Services Act 1970 for good reason (paragraph 46). Lord Hope of Craighead said that although there was "no statutory obligation" to comply with it, the code "(could not) be divorced from its statutory background, from the process of consultation and from the parliamentary procedure that must be gone through before it is published under section 118(6) as "the code as for the time being in force" (paragraph 68). By contrast, the guidance in the Indicative Sanctions Policy has no specific statutory provenance and status. It is guidance provided in a wholly different context, but also of a wholly different nature and effect. This is not to say, of course, that a panel is at liberty to disregard it, or that they need not give adequate reasons for departing from it (see, for example, Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 A.C. 629, P.C.). In this case, however, the Panel made neither of those errors."

Professional Standards Authority v The Health and Care Professions Council [2017] EWCA Civ 319.

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