Introduction and principlesWednesbury unreasonablenessultra viresultra viresintra vires guidance
4.1Directions and guidance are a means by which central government exercises control over the implementation of legislation in order to promote consistency (but also flexibility, where local considerations justify divergence from guidance), accountability and the maintenance of high standards. Local authorities may publish guidance to their own officers, and the public, for similar reasons.
4.2Public authorities may be required to follow directions, or to ‘act under’ guidance or take guidance into account, by legislation
1See, for example, section 7 of the Local Authority Social Services Act 1970 and section 78 of the Care Act 2014.or the common law.
2Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546 at para 31.At common law, guidance may be a relevant consideration it would be irrational to disregard.
3R (Coglan) v Chief Constable of Greater Manchester Police [2004] EWHC 2801 (Admin) at paras 46–48.4.3When local authorities publish their own guidance or policy, as to how they will exercise a broad statutory discretion, it is usually implicit in the legislation that they will not entirely fetter their discretion, so as to preclude them considering an exceptional case on its merits; however, legislation that entitles an authority to promulgate rules may be construed as entitling it to promulgate bright line rules.
4R (Hillsden) v Epping DC [2015] EWHC 98 (Admin) at paras 27–39.4.4Lawful guidance can be an essential element in securing the coherent, transparent and consistent performance of administrative discretions
5R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport, and the Regions [2001] UKHL 23, [2003] 2 AC 295 at para 143; R(Lumba) Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245 at para 34.but its precise effect depends on all the circumstances, including in particular the statutory context.
4.5If guidance or policy is sufficiently clear (and, generally, its meaning is a question for the court, in which the
Wednesbury principle plays no part
6Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546 at para 31.), it usually gives rise to a legal obligation, recently expressed as ‘a requirement of good administration’, that it will be followed by the authority that has published the guidance, at least until the guidance or policy changes.
7Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546 at paras 29–31.4.6It is in general unnecessary for the guidance to include an express proviso that the public authority will, ultimately, consider each case on its merits, it being generally implicit that a public authority will apply a policy expressed in absolute or unqualified terms in a manner that does not fetter its discretion.
8R (West Berkshire DC) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441, [2016] PTSR 982 at para 21. It will not usually be unlawful to deviate from unlawful guidance and, in addition, guidance may be quashed insofar as it is unlawful (for example, if it is ultra vires relevant legislation or incompatible with the European Convention on Human Rights (ECHR)).
9R (A) v Secretary of State for Health [2009] EWCA Civ 225, [2010] 1 WLR 279 at para 78; Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7, [1986] AC 112; R (West Berkshire DC) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441, [2016] PTSR 982 at para 22.4.7A person affected by an administrative policy is not for that reason alone entitled to be consulted before the public authority changes its policy but he or she may be entitled to be consulted, as a result of legislation, guidance or the common law: see chapter 3 above on Consultation.
4.8Directions are mandatory, unless they are
ultra vires, whereas public authorities may diverge from guidance, if they have a sufficiently cogent reason.
10R v North Derbyshire Health Authority ex p Fisher (1997–8) 1 CCLR 150, QBD at 155G–K.4.9Whether a reason for a public authority diverging from guidance is sufficiently cogent is a context sensitive and evaluative question, that depends on:
•the terms of the legislation (eg whether it imposes a duty to ‘act under’, or simply to have regard to, the guidance);
11R v Islington LBC ex p Rixon (1997–8) 1 CCLR 119, QBD at 123F–K.and
•all the circumstances of the case, in particular the extent to which the guidance is expert, well-reasoned and intended to be normative.
12R (Mohammed Mohsan Ali) v Newham LBC [2012] EWHC 2970 (Admin), (2012) 15 CCLR 715 at paras 39–41. 4.10A cogent reason is usually exceptional circumstances or local factors not contemplated by the guidance.
4.11The decision of a public authority will usually be unlawful if, in breach of legislation or the common law, it disregards intra vires guidance, including by:
13R v North Derbyshire Health Authority ex p Fisher (1997–8) 1 CCLR 150, QBD at 155G–K and at 165J–166B.•misunderstanding it (the proper construction of policy generally being a hard-edged question for the court
14Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546 at para 31.); or by
•acting differently than advised by the guidance simply because the public authority disagrees with it (rather than because of genuine exceptional circumstances or special local factors not contemplated by the guidance).
4.12However, a public authority may sometimes be able to justify its divergence from guidance by reference to reasons advanced by it in litigation, rather than considered contemporaneously.
15R (X) v Tower Hamlets LBC [2013] EWCA Civ 904 at para 38.4.13The Senior Courts Act 1981 now provides, at section 31(2A), that the High Court must refuse to grant relief ‘if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’, unless there is an ‘exceptional public interest’ in granting relief. Section 31(3C) imposes a similar restriction on the grant of permission to apply for judicial review. It remains to be seen
16The Bingham Centre for the Rule of Law, the Public Law Project and Justice have suggested that this duty will only arise exceptionally: Judicial Review and the Rule of Law: An Introduction to the Criminal Justice and Courts Act 2015, Part 4 at www.biicl.org/documents/767_judicial_review_and_the_rule_of_law_-_final_for_web_19_oct_2015.pdf. However, in R (Hawke) v Secretary of State for Justice [2015] EWHC 3599 (Admin), as a result of section 31(2A) of the Senior Courts Act 1981 HolmanJ declined to grant a declaration that the SSJ was in breach of the PSED (under section 149 of the Equality Act 2010); instead, he indicated that his judgment was a ‘declaratory judgment’, following the example of Blake J in Logan v Havering LBC [2015] EWHC 3193 (Admin). See also R (Enfield LBC) v Secretary of State for Transport [2015] EWHC 3758 (Admin) at para 106 (sometimes a witness statement is required from the public authority to establish that the test is met) and R (HA) v The Governing Body of Hampstead School [2016] EWHC 278 (Admin) at para 33 (these provisions may relate simply to ‘technical flaws’). In R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin), (2016) 19 CCLR 362, Laing J found it hard to be satisfied that there was no chance of the council reaching a different decision on a reconsideration in case involving highly vulnerable children and, in any event, considered that in such a case there was an exceptional public interest in granting relief.how the court will approach this restriction on its traditional function but the provision is potentially relevant in cases where the claimant submits that a decision is unlawful owing to the local authority’s failure to take into account guidance, or act under statutory guidance.