Guidance
1.In this Report the Committee makes recommendations in relation to two Bills: the Ivory Bill and Mental Health Units (Use of Force) Bill, a Private Member’s Bill. The Bills deal with entirely different subjects. There is however a striking procedural similarity between them. In each case, the Bill contains a delegated power enabling the Secretary of State to issue guidance which is, in effect, mandatory (see paragraphs 7 to 13 and 33 to 36 below).
2.While it is not unusual for a bill to contain a power to issue guidance, such a power is commonly expressed as including a requirement on the person to whom the guidance is addressed “to have regard to” such guidance, which, as we explain in paragraph 8 below, means that that person has an element of choice in whether to follow it.
3.In contrast, in the case of the Ivory Bill and Mental Health Units (Use of Force) Bill, the Secretary of State is given power to issue guidance which specifies legislative requirements or is otherwise determinative of matters which affect a person’s legal rights or obligations.
4.The guidance is therefore not properly guidance at all but to all intents and purposes a form of legislation. Since it is not guidance it should not in our view be given that label. This is not simply a matter of form; but it ensures that the relevant provisions are treated consistently with other legislation. We would be grateful for the Government’s views on this practice of camouflaging legislation as guidance and seek an assurance that it will not be continued in the future.
5.Where a power to issue guidance includes a requirement “to have regard to”, it has often been our practice to recommend that the guidance should be subject to some form of parliamentary scrutiny. This is because, although there is an element of choice, a requirement “to have regard to” carries with it an expectation that the guidance will be followed unless there are cogent reasons for not doing do.1 Where the provisions to be contained in guidance are to have mandatory effect, the arguments in favour of them being contained in subordinate legislation subject to parliamentary scrutiny are, we believe, so much the stronger.
1 See for example, Delegated Powers and Regulatory Reform Committee, 1st Report, Session 2017–19, HL Paper 10, para 18 on the Financial Guidance and Claims Bill.