The Statutory Guidance Project

Legal,

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:

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.

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 [1998] 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

  1. 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.
  2. 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 [2012] 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?‘
  3. 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

DfEtweet

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.

Allan Norman (@CelticKnotTweet) is an independent social worker at Celtic Knot. Between 2006-13 Celtic Knot was also his law firm.

4 thoughts on “The Statutory Guidance Project”

  1. If I may I’ll be lazy and just submit most of what I’ve just had accepted for publication in Family Law Journal for November on Guidance and legal aid:

    Guidance

    LASPO, s 4(3) includes amongst the duties of the decision-maker (personified in LASPO by their Director), that they must ‘(b) have regard to guidance given by the Lord Chancellor about the carrying out of those functions’. However, guidance must be in accordance with the law. In particular, it is a basic principle of administrative law that a public body may not ‘fetter’ a discretion entrusted to it by statute. Parliament confers discretion to ‘promote the policies and object of [an] Act’ (Lord Reid in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). Guidance may not impose inflexibility where its empowering statutory provision does not provide for it, nor limit the scope of a decision-maker’s discretion beyond that which is anticipated by the statute (see eg Lord Browne-Wilkinson in R v Secretary of State for Department for the Home Dept exp Venables [1998] AC 407, [1997] UKHL 25 at 496-7).

    The Lord Chancellor has issued guidance – Lord Chancellor’s exceptional funding guidance (non-inquests) (undated) (‘the Guidance’: http://www.justice.gov.uk/downloads/legal-aid/funding-code/chancellors-guide-exceptional-funding-non-inquests.pdf) under LASPO, s 4(3). Its legality was considered by Collins J in Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin). This was a series of immigration cases; but the principles applicable to guidance to decision-makers apply in all grants of civil legal aid (including for family proceedings). Collins J describes the Guidance thus:

    ‘[9] … [It] lays down some principles which the Director is to apply and some of those are said by the claimants to be unlawful. Paragraph 6 notes that s 10(3)(b) does not provide a general power to fund cases which fall outside the scope of legal aid. It is, it is said, “to be used for rare cases” where the risk of the breach of material rights ‘is such that it is appropriate to fund [para 7 which is cited in full including]:

    “(7) … Rather, section 10(3)(b) should be used in those rare cases where it cannot be said with certainty whether the failure to fund would amount to a breach of the rights set out at section 10(3)(a) but the risk of breach is so substantial that it is nevertheless appropriate to fund in all the circumstances of the case. This may be so, for example, where the case law is uncertain (owing, for example, to conflicting judgments).”’

    Collins J – who says he was confronted with over 5,000 pages of case law – considered the Guidance in the context of domestic and European Court jurisprudence (paras [9]–[52]). The claimants’ case was that the Guidance is too ‘restrictive’. The Guidance he says:

    ‘[12] … sets out various matters which should be taken into account [by a LAA decision-maker] in judging the importance or seriousness of what is at stake both for the applicant and more generally. Factual, legal or procedural complexity is material. Relevant considerations explicitly referred to include whether the degree of emotional involvement that the applicant is likely to have is incompatible with the degree of objectivity expected of advocates in court. In practical terms that is highly likely to be the situation in most appeals by immigrants who wish to enter or remain. Whether the applicant has any relevant skills or experience is a material consideration. Again, in all but a very small fraction of cases an applicant will lack skills and experience. On the other side of the coin, the court’s or tribunal’s familiarity with having to deal with litigants in person is material. In addition, the ability of an applicant to understand English and any disabilities he may suffer are material. If the applicant lacks capacity within the meaning of the Mental Capacity Act 2005, the caseworker must consider how capable his litigation friend is to present his case.’

    He points out that the Guidance bases its approach to grant of legal aid by reference to Airey v Ireland (1979) 2 EHHR 533 and X v UK (1984) 6 EHRR 136. From the latter case the Guidance derives its ‘practical impossibility or obvious unfairness’ test (para [15]). Collins J questions whether that is the correct test:

    ‘[19] The “overarching question” posed in the Guidance is “whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings.” This is said to be a very high threshold. As I have said, it is based on X v UK. In setting out this test, the Commission referred to Airey v Ireland.’

    After full consideration of relevant case law Collins J dealt with the ‘threshold’ question at para [28]. His ‘key considerations’ to ensure that Convention provisions, especially Art 6, are met are:

  2. • There must be ‘effective access to a court’: for example a litigant must be able to present all relevant evidence and ‘engage with the process’ (AK & L v Croatia (App No 37965/11: final on 8 April 2013));
    • There must be ‘overall fairness’; and
    • That where appropriate a decision-maker must have in mind Art 8 (respect for family life) to which the Guidance, he says, does not refer adequately (para [51]; and see H(H) and comments of Lord Kerr above).

    3. He took the view that Chadwick LJ’s test (used by LAA decision-makers) – the X v UK ‘practically impossible’ test – sets the bar ‘too high’ (para [28]) for s 10. He therefore concluded that the Guidance is defective because it sets the threshold for grant for exceptional cases too high (para [51]); and that to that extent it is unlawful (para [128]).

    Hope that extract makes some sense….

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    1. Thank you. This is a useful reminder that while I had in mind primarily statutory guidance for social workers – hence the two government departments I contacted – it is to be found in other areas also. I’m not sure I’m up to the task of collating all the statutory guidance beyond the scope of social work, but it’s right that those who may visit this page are reminded of its existence!

      This extract also serves as a useful reminder that another question I might have touched upon, but didn’t, is how to decide whether or not statutory guidance is lawful, and the relevant administrative law principles that bear on that question.

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  3. This is an Important project. I am delighted to support it as there is an urgent need to remind social workers of their statutory duties at a time when the child protection book launch (White, Morris and Featherstone) tours the country promoting the Holy Grail of social work as non-judgemental and empowering. It is ironic that the more support the book gets the more widespread scepticism about social work expertise becomes.

    It would be interesting to find out whether social workers actually bother to read the statutory guidance. Difficulties in obtaining information that helps them with their everyday practical dilemmas may explain this – also it is easier to learn about procedures and practices from colleagues. As a consequence, they often have a weak grasp of the law and I believe that many young, inexperienced social workers need more guidance on the law. In children’s services, for example, many lack clarity about the purpose of statutory visits for child protection and looked after children and how to record visits in case this is later used as evidence in court.

    It seems basic to me that social workers should be trained in the appropriate use of authority and have a sound understanding their extent and limits of their statutory powers – but this idea is opposed by many academics who are ideologically opposed to the use of authority. As a consequence students are being allowed to follow their interest in relationship-based work without being encouraged to place this within the context of the social worker’s legal duties and their responsibilities to the wider society.

    I am glad you raise the question of whether the statutory guidance is lawful. When I was a children’s social worker in the 1990’s I felt a duty to challenge managers when they made a decision based on expediency rather than the law. In other words I saw the Children Act 1989 as supporting good practice – though I recognised the inherent power struggle between social workers and managers, who also have to manage finite resources.

    Incidentally, something I have become aware of is the way that the legal duty under section 47 of the Children Act 1989 has disappeared from much of the official guidance. There is now plenty of evidence that some authorities in England are failing to carry out their legal duty under s.47. Many cases of serious neglect are not recognised as ones that require a formal investigation. Urgent child protection referrals are not dealt with in a thorough and prompt manner. Often there is no clarity about whether a s.47 has been carried out. Managers do not record their decision to instigate this and social workers are confused about the difference between this and safeguarding work.

    I am inclined to think that here in Wales this is not such a problem because the statutory guidance is much more helpful to social workers. It is actually called the ‘All Wales Child Protection Procedures’ (in England it is ‘Working Together to Safeguard Children’) and is a good example of statutory guidance written by people with a sound understanding of the practice dilemmas. In particular, it provides detailed guidance on the complex issues around section 47 for social workers.

    Thanks again for providing this forum for debate.

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