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bene¬ts of any kind are withheld from those who are legally entitled to them.
However, government departments do adopt and act upon their own interpre-
tations of statutory provisions under which entitlements may arise, and these
may be less favourable to claimants than other, perhaps equally tenable, inter-
pretations. Unless and until the government™s view is successfully challenged in
the courts as being plainly wrong or irrational, it will e¬ectively determine the
question of entitlement.
Non-statutory rules may have legal consequences in so far as they are taken
into consideration by courts or tribunals in reaching decisions. As regards the
Immigration Rules, for instance, an appeal to the Asylum and Immigration
Tribunal against an immigration decision (eg a refusal of leave to enter the
United Kingdom) may be brought on the ground (inter alia) ˜that the decision
is not in accordance with immigration rules™ (Nationality, Immigration and
Asylum Act 2002, s 84(1)(a)). But even in the absence of a provision of this sort
a court may take account of non-statutory rules and can intervene if the admin-
istration disregards or misconstrues rules of its own making: see R v Criminal
Injuries Compensation Board, ex p Lain [1967] 2 QB 864; R v Chief Immigration
O¬cer, Gatwick, ex p Kharrazi [1980] 1 WLR 1396; and compare R v Ministry
of Defence, ex p Walker [2000] 1 WLR 806. (Note also the reasoning of Lord Go¬
in R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539,
569“70 and compare Lord Browne-Wilkinson™s dissenting speech at 576“7.) An
administrative rule may be set aside by a court if found to be irrational, or to be
manifestly unjust, oppressive, or partial and unequal in its operation as between
di¬erent classes of persons: see eg, R v Immigration Appeal Tribunal, ex p
Manshoora Begum [1986] Imm AR 385.
The publication of non-statutory rules may give rise to a ˜legitimate expecta-
tion™ by those a¬ected that the rules will be properly and fairly applied, and the
courts may protect this expectation even though it is not a legal right: Attorney-
General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; R v Secretary of State for
the Home Department, ex p Khan [1984] 1 WLR 1337; R (Abdi and Nadarajah)
479 The powers of government


v Secretary of State for the Home Department [2005] EWCA Civ 1363. Compare
R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18,
[2005] 1 AC 1, at [11]“[12], [58]“[62]. (Legitimate expectations are further dis-
cussed in chapter 10.)
It is questionable whether the practice of administrative rule-making is
under adequate constitutional control (see Baldwin and Houghton, ˜Circular
arguments: the status and legitimacy of administrative rules™ [1986] PL 239).


(f) Guidance and codes of practice
Guidance is a means by which the government seeks to in¬‚uence the conduct
of public authorities (such as local authorities, health authorities, the police and
magistrates), or of private individuals or organisations (such as employers or
farmers). Guidance may be used in preference to coercive powers because it is
believed that existing, perhaps long-established, practices are better modi¬ed
through persuasion and cooperation than by a machinery of legal duties
and sanctions. Guidance is also preferred when it is thought that the body con-
cerned should have freedom to use its own discretion rather than be subject to
governmental regulation in the performance of its tasks. This may be because it
possesses an expertise which the government lacks, or because it is an elected
body answerable primarily to its own electors rather than to the government, or
for other reasons of principle or policy.
Guidance ranges from the formal, published and explicit to informal pres-
sures, inducements and advice where ˜much is likely to happen behind the
scenes, in committees or even in private discussions™ (Blondel et al (1969“70) 5
Government and Opposition 67, 71). Christine Parker and John Braithwaite
remark that ˜cooperative and persuasive strategies™, although not always appro-
priate, ˜are likely to be more e¬ective than coercive law in achieving long-term
compliance with norms, and coercive law is most e¬ective when it is in reserve
as a last resort™ (˜Regulation™ in P Cane and M Tushnet (eds), The Oxford
Handbook of Legal Studies (2003), pp 133“4. See too Karen Yeung™s discussion
of such ˜suasion techniques™ and their potentiality for abuse of power:
˜Regulating government communications™ [2006] CLJ 53, 71“4, 78“80.)
Some forms of guidance have a statutory basis. A statute may both empower
a minister to give guidance to a public body and prescribe the duty of that body
with respect to any guidance given. The strongest form of guidance gives rise to
a duty to act in accordance with it. Such was the duty of the Civil Aviation
Authority under section 3(2) (since repealed) of the Civil Aviation Act 1971,
which provided that:

the Secretary of State may from time to time, after consultation with the Authority, give guid-
ance to the Authority in writing with respect to the performance of the functions conferred
on it . . . and it shall be the duty of the Authority to perform those functions in such a manner
as it considers is in accordance with the guidance for the time being given to it.
480 British Government and the Constitution


In Laker Airways Ltd v Department of Trade [1977] QB 643, the Court of
Appeal held that guidance given under this subsection could not override the
express provisions or the policy of the Act. Lord Denning MR said (at 699“700):

the word ˜guidance™ in section 3 does not denote an order or command. It cannot be used
so as to reverse or contradict the general objectives or provisions of the statute. It can only
be used so as to explain, amplify or supplement them. So long as the ˜guidance™ given by
the Secretary of State keeps within the due bounds of guidance, the Authority is under a
duty to follow his guidance. Even so, the Authority is allowed some degree of flexibility. It
is to perform its function ˜in such a manner as it considers is in accordance with the guid-
ance™. So, while it is obliged to follow the guidance, the manner of doing so is for the
Authority itself.


Lawton LJ in the same case emphasised the di¬erence in the meaning of the
words ˜guidance™ and ˜direction™: ˜The word “guidance” has the implication of
leading, pointing the way, whereas “direction” even today echoes its Latin root
of regere, to rule™ (725). Yet a power to give guidance that must be followed
(even with a degree of discretion as to the mode of compliance) evidently
approximates to a legislative power.
A less stringent obligation is imposed by some statutes which require those
to whom guidance is issued to ˜have regard to™ or ˜take account of ™ the guidance.
The Housing Act 1996 is an example. Section 182(1) provides:

In the exercise of their functions relating to homelessness and the prevention of homeless-
ness, a local housing authority . . . shall have regard to such guidance as may from time to
time be given by the Secretary of State.


The Homelessness Code of Guidance having e¬ect under this provision is
intended to secure ˜fair, consistent and good practice amongst housing author-
ities™; but they are not legally bound to comply with it. (See De Falco v Crawley
Borough Council [1980] QB 460, 478, 482; and cf R v Police Complaints Board,
ex p Madden [1983] 1 WLR 447.) They are, however, obliged to take account of
the Code and give fair consideration to its provisions before reaching a decision.
A public authority is open to challenge in proceedings for judicial review if it
disregards, misconstrues or misapplies guidance which it is required to take into
account: see R v North Derbyshire Health Authority, ex p Fisher (1997) 10 Admin
LR 27. Guidance of this kind, also, will be unlawful if it contradicts or under-
mines the provisions of the relevant Act: see R v Secretary of State for the
Environment, ex p Tower Hamlets LBC [1993] QB 632; R v Secretary of State for
the Environment, ex p Lancashire County Council [1994] 4 All ER 165; R v Brent
London Borough Council, ex p Awua [1996] AC 55.
Another kind of legal e¬ect is sometimes given by statute to forms of guid-
ance or codes of practice. Section 203 of the Trade Union and Labour Relations
481 The powers of government


(Consolidation) Act 1992 authorises the Secretary of State to issue codes of
practice containing such practical guidance as he thinks ¬t for the purpose of
promoting the improvement of industrial relations or desirable practices in
relation to trade union ballots and elections, etc. Section 207(3) provides:

In any proceedings before a court or employment tribunal or the Central Arbitration
Committee any Code of Practice issued . . . by the Secretary of State shall be admissible in
evidence, and any provision of the Code which appears to the court, tribunal or Committee
to be relevant to any question arising in the proceedings shall be taken into account in deter-
mining that question.

(See also eg, Police and Criminal Evidence Act 1984, section 67(11); Regulation
of Investigatory Powers Act 2000, section 72.)
It is common for statutes to provide that codes of guidance (especially if they
have legal e¬ects of the sorts mentioned above) shall be subject to parliamen-
tary procedures similar to those applied to delegated legislation. For example,
draft codes prepared by the Secretary of State under the Trade Union and
Labour Relations (Consolidation) Act 1992 must be laid before Parliament and
may be issued only after approval by both Houses (s 204(2)). More commonly
the negative control procedure (above, pp 457“8) is prescribed: for example, by
the Environment Act 1995, section 4, for guidance issued to the Environment
Agency. Provision for parliamentary control is, however, sometimes wanting,
even where plainly appropriate. In R v Secretary of State for Social Services, ex p
Stitt (1991) 3 Admin LR 169 the Court of Appeal was perturbed to ¬nd that the
power of the Secretary of State (then under the Social Security Act 1988) to
give binding directions to social fund o¬cers, as to whether particular kinds of
need should be met by payments from the fund, was exercisable without any
parliamentary supervision “ even though such directions were equivalent to
delegated legislation.
A great deal of ministerial guidance has no statutory basis and is without any
legislative element. It may nevertheless be e¬ective in in¬‚uencing the conduct
of those to whom it is directed, especially when it is based on clear constitutional
understandings or if the means of compulsion are available in reserve. The
following are examples.
Local authorities. Local authorities have been the recipients of much guidance
from central government. Conscious of their own powers and their democratic
base, they have not always responded favourably to the government™s attempts
to in¬‚uence them in the performance of their functions. But most circulars to
local authorities contain guidance of a politically uncontroversial nature which
is generally followed. They have dealt with such matters as the supply of teach-
ers, conservation of old buildings, eviction of gypsies, disclosure of councillors™
pecuniary interests, and so on. Planning Policy Statements (formerly Planning
Policy Guidance Notes) issued by the Department for Communities and Local
Government to local planning authorities set out government policies on land
482 British Government and the Constitution


use planning and development. Decision-makers on planning applications are
required to take them into account as ˜material considerations™ and the depart-
ment (or its inspectors) will be guided by them in the determination of
planning appeals and in dealing with called-in planning applications. This has
been an e¬ective means of implementing government policies on such matters
as Green Belts, planning for town centres and the provision of new housing. In
1979 the Government decided that the issue of circulars of guidance to local
authorities on matters in which the Government had no statutory powers
would in future be ˜strictly limited™ (The Guardian, 26 July 1979; see also HC
Deb vol 9, col 534 W, 30 July 1981). Most circulars since then have given expla-
nations and advice about recent legislation (or sometimes on the e¬ect of recent
judicial decisions).
The police. The Home Secretary has no power to direct chief o¬cers of police
as to the performance of their duties, but the Home O¬ce issues many advisory
circulars to chief constables. An example is Home O¬ce Circular 133/71 which
gave guidance to the police on the use of the power to stop and search persons
reasonably suspected of being in possession of controlled drugs (Misuse of
Drugs Act 1971, s 23(1): the Circular recommended that modes of dress and
hair style should not be regarded as reasonable grounds to stop and search.)
Powers to stop and search are now also conferred on the police by the Police and
Criminal Evidence Act 1984, the Criminal Justice and Public Order Act 1994
and the Terrorism Act 2000: the exercise of these powers is regulated by Code A
on Stop and Search (issued under section 66 of the Police and Criminal Evidence
Act 1984) complemented by guidance in the Home O¬ce™s Manual on Stop and
Search (2005). Circulars have also been issued to promote consistency in the
enforcement of particular statutory provisions and in the use of cautioning, and
a Circular to chief o¬cers of police gave general guidance on the use of CS gas
grenades in dealing with serious public disorder. Home O¬ce guidelines
formerly prescribed the principles and procedures to be followed in the use of
electronic listening (˜bugging™) devices, which was unregulated by statute. (See
now the Police Act 1997, Part III and the Regulation of Investigatory Powers Act
2000, Part II.)
When guidance fails to yield results the government may resort to legislation.
A 1977 Circular asked local education authorities to provide parents with
certain information about schools in their areas. The response was disappoint-
ing and the guidance was replaced by a statutory obligation: section 8 of the
Education Act 1980 required local education authorities to publish their
arrangements for admission of pupils to maintained schools and such other
information about their policy and arrangements for primary and secondary
education as the Secretary of State might by regulations require. (See now the
School Standards and Framework Act 1998, section 92.)
There are limits to what can be lawfully achieved by guidance. The govern-
ment cannot override a discretionary power which a public body has under
statute by giving it guidance, and the public body cannot abdicate its discretion
483 The powers of government


by treating the guidance as binding on it: see R v Police Complaints Board, ex p
Madden [1983] 1 WLR 447. Again, the government™s interpretations of the law
expressed in advisory circulars have no legal authority. While a departmental
interpretation may acquire ˜vitality and strength™ through being accepted and
acted upon in practice (see Coleshill and District Investment Co Ltd v Minister of
Housing and Local Government [1969] 2 All ER 525, 538) and may have some
limited persuasive force in the judicial construction of a statutory provision
(cf Wicks v Firth [1983] 2 AC 214, 230“1; R v DPP, ex p Ducken¬eld [1999] 2 All
ER 873, 895), it is to be disregarded if untenable (eg, R v Wandsworth London
Borough Council, ex p Beckwith [1996] 1 WLR 60, 65). A person whose interests
are a¬ected by the department™s interpretation may seek a declaration from the
courts that it is wrong in law.


Royal College of Nursing of the United Kingdom v Department
of Health and Social Security [1981] AC 800 (CA and HL)
Section 1 of the Abortion Act 1967 provides that a person is not guilty of an
o¬ence of abortion when a pregnancy is terminated ˜by a registered medical
practitioner™, if the treatment is carried out in a National Health Service hospi-
tal (or approved private clinic) after a certi¬cate has been given by two doctors
as to the necessity for the abortion (and subject to certain other speci¬ed
conditions).
The Department of Health and Social Security issued a Circular to health
authorities and the medical and nursing professions stating its view that it was
lawful for a nurse to administer the drug which induced labour and the termi-
nation of pregnancy, provided that a registered medical practitioner personally
decided upon and initiated the process of induction (by inserting a catheter into
the woman™s body) and remained responsible for the subsequent treatment
carried out by the nurse. The Circular said:


[T]he Secretary of State is advised that the termination can properly be said to have been
termination by the registered medical practitioner provided it is decided upon by him, initi-
ated by him, and that he remains throughout responsible for its overall conduct and control
in the sense that any actions needed to bring it to conclusion are done by appropriately
skilled staff acting on his specific instructions but not necessarily in his presence.


The Royal College of Nursing, wishing to have the law clari¬ed, brought
proceedings for a declaration that the Department™s advice was wrong in law.
Woolf J held that, although a nurse might play a large part in the procedure
approved by the Circular, it was still treatment by a registered medical practi-
tioner, and accordingly was lawful. The Court of Appeal reversed this decision,
holding that in these circumstances the pregnancy was in fact terminated by the
nurses. Lord Denning MR concluded his judgment by saying (at 806“7):
484 British Government and the Constitution


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