If you’ve ever urged risk-averse or recalcitrant fellow-practitioners to go beyond published guidance to try and achieve something better, be prepared for a chorus of ‘I-told-you-sos’, laced with professional schadenfreude. Why? Well, the record shall show that, on 30th October 2012, a High Court ruling by Mr Justice Kenneth Parker was published that admonished a certain London Council because it “did not have a lawful justification for departing from the relevant national guidance”. The national guidance in question being Guidance on the Use of Tactile Paving Surfaces (2005, modified 2007).
At first glance, this struck me as quite extraordinary, if not actually both illogical and dangerous. I have, for many years, advised numerous fellow-practitioners, and also clients, that “Guidance is just that: it’s neither regulations nor the law”. And yet, here is the Mr Justice appearing to say that I’ve been barking up the wrong tree all this time.
Now, while this arbiter of justice would by no means be the only person to tell me such a thing over my near 30 years of practice (you’re right, I don’t look old enough), what the fellow in the powdered wig is saying on this occasion potentially goes well beyond merely pointing out a weakness of my own. It seems to strike at the heart of my field of work and, for that matter, at common sense. For how can it be reasonable, as he did, to call the Council’s local guide ‘unlawful’ because it didn’t follow national ‘guidance’? Has Ken flipped his wig (perhaps literally), or did my first glance miss something?
Well, entertaining as the thought of m’lud having a comedy hairpiece malfunction might be, the answer to my question is that, indeed, all is not quite what it seemed to me at first. It’s complex, you see, just like streets themselves, and I think the broader ramifications of this judgement deserve and need to be clearly understood. Let me try and help.
Firstly, Mr Parker acknowledged that, “the court should be circumspect and careful so as to avoid converting what is a non-binding guidance into, in effect, mandatory rules. To do so would tend to subvert the intention of the guidance and would risk undermining the autonomy of the primary decision maker upon whom Parliament has conferred ultimate responsibility for discharging the function in question”. All well and good so far: national guidance isn’t law, and local authorities don’t just have to do what it says.
Moving on, however, Kenneth quotes a certain Lord Steyn's allegedly famous dictum that "in law, context is everything". (Just like streets again!) What he means by context in this case is that he considers due regard must be given “to the authorship of the guidance, the quality and intensity of the work done in the production of the guidance, and the extent to which the (possibly competing) interests of those who are likely to be affected by the guidance have been recognised and weighed”. He then goes on to eulogise the splendid efforts and worthiness of all who contributed to the 2005 tactile paving guidance, having made plain that it’s not his job to say if it’s good guidance or not.
The thing is that, for practitioners, this is where the problems lie. Irrespective of how hard and earnestly people worked, guidance that fails, for example, to explain why only red blister paving should be used at controlled crossings (not any other colour), and which goes on to state, as it does with a straight face, that using red blister paving “may also be of benefit to sighted pedestrians and may emphasise the presence of a crossing to vehicle drivers” is plainly far from flawless. How often, as a driver, have you screeched to a halt at a Pelican, having completely failed to see those funny bright lights on poles, those thick white markings all across the carriageway, and indeed those people, but thankfully having caught a glimpse of the faded red-now-nearly-grey blister paving just in time? Exactly.
I’m glad to say, therefore, that Mr Justice Kenneth Parker’s ruling doesn’t just rest on the fact he assumes the national tactile paving guidance is really brilliant. It also rests on the contention that section 149 of the Equality Act 2010 obliges local authorities to follow such guidance unless there is good reason to depart from it.
At which point, it behoves us to look at what exactly the Council guidance in this case says on the matter. It’s this: “Whatever the type of street/road, tactile paving shall only be laid at controlled crossings and shall be grey-coloured, laid two rows deep, with no tails”. That’s essentially it, other than, somewhat perversely, a reference to the national guidance for “more detail”.
Of course the national guidance doesn’t so much give more detail as set out a quite different approach in terms of where tactiles should be located, what colour they should be, and the use of tails. The Council guidance gives no justification whatsoever for departing from this national guidance. Indeed it doesn’t acknowledge that there is a departure.
So we now see that the heart of Ken’s ruling is that, knowing that properly prepared national guidance exists, you can’t simply ignore it without justification. You may – like I do – consider the national tactile paving guidance to be far too long, unnecessarily prescriptive, unhelpfully detailed, meaningless in parts, and long overdue for a comprehensive overhaul and considerable pruning. But, until it gets such treatment, we have to deal with it.
When I’m critical of practitioners for unthinkingly following guidance, it’s usually the ‘unthinking’ bit I’m having a go at, not the guidance. So I have no problem with criticism of those who unthinkingly do what they simply happen to like better. I suspect that that main downside of this ruling will be that it leads to more ‘unthinking adherence’; but if it also cuts out ‘unthinking innovation’ then that’ll be an upside.
I like to think that we’re paid to think. Do you?
By-the-book red tactiles at a controlled crossing. Look at the tail on that!
Another controlled crossing, but just a handful of studs. Did I hear ‘tokenism’?
Non-contrasting tactiles in a conservation area. A justified departure?