Getting a definitive list of statutory guidance in force
How do you know if something is a piece of statutory guidance and is in force? The immediate inspiration for this blog is the difficulty extracting a straight answer to that question from the internet.
So far as I know, there is no comprehensive list of “statutory guidance in force” as there are projects to keep on top of “legislation in force”. No single place to which to come.
(I have a list on my own website at www.celticknot.org.uk/sourcematerials/. It is the problems with keeping it up-to-date that have inspired this blog. But it may be the nearest thing there is at the moment.)
Worse, if you want to locate statutory guidance on a particular subject, you generally have to know what it is you are looking for.
Worse still, the current government embarked on a project shortly after coming into office which – whether or not intentionally – has made problems that much worse. That project consisted of archiving whole chunks of the previous government’s websites, which can now generally only be found in the national archive. That project was undertaken indiscriminately, so that statutory guidance – which has its own peculiar status discussed below, and doesn’t change its status just because a new government comes to power – is sometimes only to be found, misleadingly, in the national archive.
So what I thought I would do is try to use Freedom of Information to see if the main government departments concerned can actually provide me with a definitive list. I’m going to link to the questions and any responses, and update the page with any useful information.
Here is my request page, made in the same form to:
- The Department of Health (see update 10th November below)
- The Department for Education (see updates 28th October and 29th October below)
What is Statutory Guidance?
For those who haven’t come across statutory guidance, here’s just a little background. It has always been difficult explaining statutory guidance. The two big conceptual problems are both suggested by the phrase itself:
- if it is “statutory”, in what sense is its legal authority any different from, say, a statutory instrument?
- If it is “guidance”, in what sense is its legal authority any different from, say guidance produced by an employer or pressure group.
The answer to these questions is key to understanding statutory guidance. Statutory guidance is guidance written under the authority of an Act of Parliament, a statute. The Act of Parliament confers a special status on the guidance, that in some way it has to be followed, taken into account, had regard to.
- An important early example, the authority for probably more statutory guidance than any other provision, is section 7 of the Local Authority Social Services Act 1970.
- Other important examples are the provisions under which the Codes of Practice for the Mental Health Act 1983 and Mental Capacity Act 2005 take effect.
- A recent example is the provision for guidance made in the Care Act 2014, under which this guidance is currently out for consultation.
Having to address the problem, what makes it more than mere guidance but less than a statutory instrument, the courts have come up with a formulation which is now pretty well-established. In R v Islington LBC ex p Rixon  1 CCLR 119 it was held:
Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.
Some problems with Statutory Guidance
- How to tell from the document? Unhelpfully, there is no simple formula. Sometimes the term statutory guidance is used. Sometimes the term used is policy guidance. Sometimes the document simply refers to the enabling provision. Sometimes the document refers to the Rixon text above in describing its own status. Sometimes, it reworks the Rixon test. Sometimes a document is a mixture of statutory and non-statutory guidance. Some statutory guidance documents also contain the text of the regulations.
- Does non-statutory guidance ever have to be followed the same way? Of course, some non-statutory guidance helpfully gets the law right and makes it easier to understand, so you may well follow the guidance. But you are not doing so because the guidance itself carries any legal authority. This question is more about whether non-statutory guidance has to be followed as though it were law. There is an interesting case on this, Ali v London Borough of Newham  EWHC 2970 (Admin) (30 October 2012). I wrote about this case and this question last year under the title ‘When is guidance ‘statutory’ and does it matter?‘
- Does statutory guidance ever get rescinded, and how would I know? Statutory guidance generally comes to an end by being replaced rather than being repealed. Unhelpfully, it is not necessarily replaced with a new version of the same document, so you might have to be concentrating. Also, as my blog ‘When is guidance ‘statutory’ and does it matter?‘ points out, replacing previous guidance with a vacuum doesn’t give you authority to do what you like, because it doesn’t make the previous guidance wrong.
Update 28th October 2014: The Department for Education have provided a response including all statutory guidance currently in force for which that Department is responsible, and hyperlinks to it. The response is here: https://www.whatdotheyknow.com/request/statutory_guidance_in_force_2?nocache=incoming-577636#incoming-577636. Note there is a single reference page for statutory guidance for schools https://www.gov.uk/government/collections/statutory-guidance-schools, and I am suggesting they create and maintain a similar page for the social care workforce https://www.whatdotheyknow.com/request/statutory_guidance_in_force_2#outgoing-395658. Note also that Working Together is included on the statutory guidance page for schools, but not on the list of statutory guidance for the social care workforce.
Update 29th October 2014: On DfE maintaining its own page
Update 10th November 2014: The Department of Health have, in stark contrast to the Department for Education, said that it is too much work to locate all the statutory guidance in force for which they are responsible. The response is here: https://www.whatdotheyknow.com/request/232953/response/579078/attach/html/2/Response%20to%20890492.pdf.html
I have requested an internal review which can be read as a pdf here: http://www.celticknot.org.uk/view/DoHFOIintreview.pdf or on the WhatDoTheyKnow site here: https://www.whatdotheyknow.com/request/statutory_guidance_in_force#outgoing-398813.