Fuzzy boundaries: law v policy and regulations v guidance

18th December 2020

Over at Prospect I have done a post on two fascinating paragraphs in the United Kingdom supreme court judgment this week on Heathrow expansion

(Prospect is now commissioning many accessible pieces about law – and so anyone interested in the law in practice should bookmark this ‘Law’ page on Prospect’s new website.)

The two paragraphs in that judgment provide a judicial definition of the phrase ‘government policy’.

In essence, ‘government policy’ when used in a statute means a formal written statement of an established policy.

A ‘government policy’ is not thereby something which you can glean from oral ministerial statements in the house of commons, nor from official acts such as signing international conventions.

(Even though courts in other circumstances are able to refer to oral ministerial statements when construing legislation and, even though international treaties do not have direct effect in domestic law, courts can and do take notice of international obligations on certain questions.)

Nor is a ‘government policy’ something in flux – it has to be a final position.

Given that policies in most areas are as changing as the flow of a river, few policies will ever achieve this final happy state of legal grace.

The supreme court, in other words, defined ‘government policy’ as something which is like law – which of course is something judges and lawyers feel comfortable with.

And so just as courts, and the legal profession generally, tend to prefer people who are just like them, they now prefer policies that look just like laws.

Given that the Heathrow case was only about whether the government had taken account of its policy on climate change – not that it was bound by it but only that it had considered it – and given the government had admitted that it had not taken account of its policy – the supreme court judgment is remarkably and unduly restrictive.

(For what it is worth, I have no objection to Heathrow expansion, but those who do object are right to be irked at this judgment.)

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But as the supreme court decides that ‘government policy’ is akin to law, the government of the United Kingdom is treating laws as akin to guidance.

This is the ever-changing regime of the coronavirus regulations.

This area of law is now so complex that the ‘Hercules’ judge posited by the legal philosopher Ronald Dworkin who could consider every possible legal authority on a give point would struggle to understand his position under the regulations.

Few if any police officers and, in turn, few citizens know what is law and what is guidance any more.

Some have suggested that this fuzziness does not ultimately matter.

Laws do need to be precise – especially criminal laws.

Criminal sanctions are life-changing events, and all citizens are entitled to know what the criminal law is so that they can regulate their own conduct accordingly.

(If you want to send a message, then use a carrier pigeon.)

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A similar problem is with that dreadful, dishonest phrase ‘enshrined in law’ – a fairly sure sign that there is idiocy afoot, as no laws in the United Kingdom can be ‘enshrined’.

The Brexit departure date was supposedly ‘enshrined in law’ – but was changed anyway.

The. commitment on international aid budget was ‘enshrined in law’ – but this is to be side-stepped.

And, no doubt, there were those who thought that the explicit mention in the Planning Act of the need for consideration of government policy on climate change meant something or other was ‘enshrined in law’.

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And then there is Brexit.

Brexit has followed a non-binding referendum, the result of which had no direct legal consequence.

But the referendum result was treated as if it were binding, in part because of what the government had said in pamphlet sent to every home during the campaign.

The government then triggered Article 50 – a highly significant legal act – but treated it as if it were a mere political gesture which did not need planning or thought as to the consequences.

Throughout Brexit the government has repeatedly toyed with illegality – in 2019 about forcing through a ‘no deal’ exit despite the will of parliament, and in 2020 with its illiberal and misconceived clauses in the Internal Markets Bill.

And, of course, the government has been found twice by the supreme court to be proposing or adopting an unlawful course of action.

The government itself often seems to have no clear view as to what is lawful and what is not, and what the difference is between law and non-law.

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We now have policy as law, law as policy, regulations as guidance, and guidance as regulations.

All of which is framed in normative ‘should’ and ‘should not’ language.

And all of it blurring into a general fuzzy haze.

But the distinctions between law and non-law remain important, despite this fog.

Perhaps we can one day revert to laws being treated as laws, guidance as guidance, and policy as policy – each fulfilling their respective useful but distinct functions.

And perhaps this objective can itself be enshrined in a law, or perhaps not.

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14 thoughts on “Fuzzy boundaries: law v policy and regulations v guidance”

  1. Thanks for this. I was wondering how to distinguish law from guidance.

    On a specific point, the “substantial meal”, assuming it is law that the publican may only provide a drink if a substantial meal is provided, does a Scotch egg constitute a substantial meal, given a government minister assured us that it did? If not, would this be a reasonable excuse in court as it is reasonable for the publican to believe a government minister?

    Secondly, and more facetiously, could the prosecution in such a case counter that, given this particular minister had lied so often, a reasonably attentive member of the public should not believe anything he said and should have realised that it was wise not to believe him in this case.

    1. In this case, arguably the law was slightly more clear that the confusing gloss provided by ministerial statements. And the courts apply the law.

      Trying to work out what the law actually is can be a difficult exercise, given the shifting sands of regulation, and continual repeal and amendment, but I think we are talking about the “Tier 2” restrictions in the snappily-titled and twice (at least, so far) amended The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 https://www.legislation.gov.uk/uksi/2020/1374/schedule/2

      Paragraph 14(1) of Schedule 2 says a person “carrying on a business of a public house, bar or other business involving the provision of alcohol for consumption on the premises must cease to carry on that business, unless sub-paragraph (2) applies.”

      And then sub-paragraph 2 says “This sub-paragraph applies if alcohol is only served for consumption on the premises as part of a table meal, and the meal is such as might be expected to be served as breakfast, the main midday or main evening meal, or as a main course at such a meal.”

      So the relevant legal test is “table meal” (not “substantial meal”) “such as might be expected to be served as breakfast, the main midday or main evening meal, or as a main course at such a meal.”

      Helpfully sub-paragraph 4 tells us that a “table meal” is a “a meal eaten by a person seated at a table” (no shit, Sherlock) “or at a counter or other structure which serves the purposes of a table” (but not if that structure is also used to serve refreshments to persons not seated at the table or other structure – which I think means you can’t sit on a stool at the bar, unless everyone has to sit).

      (This level of minutiae makes rules about straight bananas look like a piece of cake – which you can both have and eat, no doubt.)

      So, would anyone eat a scotch egg as their breakfast, or as their lunch/dinner/tea/supper/etc (delete according to region/class/idiolect), or a main course at any of those?

      I submit that a single simple unaccompanied scotch egg (by which I mean an egg which has been boiled, at least hard enough to hold its shape, then enrobed in a layer of minced meat or another meat-like comestible, covered with breadcrumbs or similar, and then fried, baked or otherwise cooked and served hot or cold), even if served on a plate, would rarely constitute a “main meal” or the “main course” of a “main meal”, unless this was an unusually large egg, ostrich say.

      But a plate of “two scotch eggs, beans and chips” might. Does it matter if you ask the vendor to serve without the beans or the chips or both, and only one scotch egg?

      I doubt any court really wants to descent to such casuistry.

      It also does not help that the serious point – stay at home, keep your distance from others outside your household, minimise your social contacts, break the chain of infection – is reduced to such trivialities.

      Ha ha, two pints and a scotch egg. What a hoot. No, please, just don’t go to the pub. The NHS will thank you. No need to clap.

      1. Thanks for the detail.

        As it happens I havent had a drink or a meal since March INSIDE a pub. I have however had a few drinks in pub gardens or under gazebos which I believe is a lot safer to me, or the NHS, than having any meal (with or without an alcoholic drink) inside a pub due to aerosol transmission according to Scientists.

        Not really for this blog, but HMG focus on meal distracts from safety of drinking outside as long as at table and maintaining 2M distancing as I did 2 weeks ago on a sunny Saturday afternoon in the middle of countryside. Any activity outside is much safer than in side from covid perspective

        The pub was only serving in Scotch eggs for legal cover as we were in tier 2.

        BTW I think a scotch egg for breakfast, but maybe not lunch or dinner, is perfectly reasonable. But does the law say this comparison is only valid if you are drinking at breakfast time- not a time I would want to drink? Thinking about it, Given the prevalence of “all day breakfasts” this must be the case QED

      2. The meal that I would expect to be served is the one I order. Even if that is very unusual. For example, if I was with someone who was ordering a full English breakfast and I said that I just wanted an oringe juice, I would expect to be served that orange juice and nothing more. I suppose there may be some establishments that might charge a flat fee for the meal, in which case I’d expect to be charged the same as my companion, but that’s not relevant to whether what I consume is what I would expect to be served.

        However, there is no significance in having a meal. The virus is no more or less likely to infect someone just because they are eating, nor does it matter if an infectious person is eating. The inclusion of references to meals and sitting down in the regulations is pure nonsense.

  2. Thank you as ever for your erudition, thoughtfulness and ability to sum up an argument in easy and clear language.

    Your writing is the complete opposite of that being produced by HM Government.

    On the Heathrow case, the implication from the judgment that the government can henceforth give whatever guidance it likes and then resort to saying “but we never wrote it down” seems unhelpful.

  3. “The current holder of the office, however, is going out of their way to politicise and thereby to discredit the legal side of the office.”

    This is what you wrote yesterday about the Attorney General – it is therefore not surprising that you now write:

    “The government itself often seems to have no clear view as to what is lawful and what is not, and what the difference is between law and non-law.”

    Perhaps it was a deliberate act to appoint such an Attorney General after her predecessor, whilst agreeing politically with his Prime Minister, advised her on the law impartially.

  4. David
    “Brexit has followed a non-binding referendum, the result of which had no direct legal consequence.

    But the referendum result was treated as if it were binding, in part because of what the government had said in pamphlet sent to every home during the campaign.”

    That the Referendum result was misrepresented as “emphatic” & “overwhelming” was exasperating enough, but it is also the case that every Leave MP at the time voted on at least one of its stages of passage through Parliament in favour of the Referendum Act 2015, so they knew for certain that it held no obligations on Parliament to act in a particular manner.

    I understand Leave protagonists pointing to Cameron’s pledge which said he and his government would implement the result, repeated in that pamphlet, but was this also not counter to the core principle of Parliamentary sovereignty which should have prevented Cameron from committing any future Parliament to a specific action or legislation?

    By pointing to this pledge as an irreversible commitment, Leavers ignore the core principle of the very sovereignty they erroneously insisted we needed to leave the EU to recover.

    Never mind that he resigned the next morning and thus surely the pledge resigned with him?

    I do of course recognise there was an (undefined) ‘political obligation’ to act on the result.

    This was immediately interpreted as ‘Brexit at any cost, consequence or circumstance’, and that, in my view was the greatest travesty of this whole pilava.

    (For the record, I’m not pro-EU, but I am completely aghast at THIS Brexit)

    PK

    1. Is it right to describe it as “Cameron’s pledge”? I thought both main parties collectively confirmed both before and after the referendum that they would honour and act on the results. They repeated this pledge in the approval of article 50 and in both subsequent general elections.

      Tragic I know but that’s parliamentary democracy for you.

    1. Oh, it gets better than that. See https://www.gov.uk/guidance/vat-guide-notice-700

      Section 7.6 (just that section, not the whole thing) says “This section has force of law”.

      The enabling power in the VAT Act allows the Commissioners of HMRC to make law simply by publishing a notice, which can be withdrawn or amended at any time, at the whim of the Commissioners and without any prior notice or approval, by another publishing notice.

      This is just an example – there are many others (which used to be listed in VAT Notice 747, but I can only find that in the archive up to 2018) – and it is relatively trivial – it tells you amounts must be expressed in sterling for VAT purposes, and tells you how to do the currency conversion – but if it is important enough to be legally binding as if it were statute law, there is no reason it could not be set out in primary or secondary legislation and subject to proper Parliamentary scrutiny. Heaven knows, SIs are easy enough to produce.

      1. Yes, I was aware of the examples in The VAT Guide and the numerous others. I just posted the one because it’s new.

        Another good example is HMRC VAT Notice 703, “Goods exported from the UK”, which will be very relevant for a lot of new exporters shortly (new because movements to the EU will become exports, whether we have a deal or not). Notice 703 has the force of law in 10 places, where it says things like:

        The next 4 bullets have the force of law.
        A supply of goods sent to a destination outside the UK or EU is liable to the zero rate as a direct export where you:
        – make sure that the goods are exported from the UK or EU within the specified time limits (see paragraph 3.5)
        – get official or commercial evidence of export as appropriate (see paragraphs 6.2 and 6.3) within the specified time limits
        – keep supplementary evidence of the export transaction (see paragraph 6.4), and
        – comply with the law and the conditions of this notice.

        I have personal experience of people falling foul of these provisions and others like them and copping not only tax assessments but also significant misdeclaration penalties.

  5. Albeit the wrong way round and the attack is on law not parliament, for fog see Dickens at the beginning of Bleak House:

    “The raw afternoon is rawest, and the dense fog is densest, and the muddy streets are muddiest near that leaden-headed old obstruction, appropriate ornament for the threshold of a leaden-headed old corporation, Temple Bar. And hard by Temple Bar, in Lincoln’s Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.

    Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds this day in the sight of heaven and earth.

    On such an afternoon, if ever, the Lord High Chancellor ought to be sitting here—as here he is—with a foggy glory round his head, softly fenced in with crimson cloth and curtains, addressed by a large advocate with great whiskers, a little voice, and an interminable brief, and outwardly directing his contemplation to the lantern in the roof, where he can see nothing but fog.”

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