How Binding are Binding Guidelines? An Analytical Framework

Abstract

Guidelines play an important role in contemporary public administration. They are pervasive, found at every level of public administration. They have been described as 'soft law', 'soft' because they do not bind yet 'law' because they are designed to influence conduct. Where 'soft law' shades into 'hard law', guidelines become impermissible, for instance because they fetter a decision-maker's freedom of action or create an extra-statutory regulatory scheme. Judges exercising the supervisory jurisdiction, drafters crafting guidelines and administrative decision-makers applying guidelines therefore need to know when and whether guidelines are binding.

Determining when a guideline crosses the Rubicon from 'soft' to 'hard' and has binding effect is very difficult, however. In this paper I set out an analytical framework for distinguishing binding guidelines from non-binding guidelines. The analytical framework consists of three indicia which help to distinguish binding guidelines from non-binding guidelines: the presence or absence of imperative language, the level of detail and precision and the intended effects on third parties.

First, Imperative Language. Guidelines which are couched in mandatory terms are more likely to be binding; guidelines which state that they “may” be applied or be considered or are explicitly said to be “non-binding” are less likely to be binding.

Second, Detail and Precision. Guidelines which set out detailed and precise expectations are more likely to be binding; guidelines which are less detailed and precise and thus require an exercise of judgment are less likely to be binding.

Third, Intended effects on Third Parties. Guidelines which are designed to direct the behaviour of third parties are more likely to be binding, especially when the guidelines are expressly linked to an administrative decision-maker’s enforcement powers; guidelines which are internal in nature and affect only the in-house operations of an administrative decision-maker are less likely to be binding.

Two other factors feature in judicial decisions on whether guidelines are binding and which recur in any study of guidelines: statutory authority to promulgate guidelines and the level of formality prior to the promulgation of guidelines. Careful consideration, however, suggests that these factors are not indicia of bindingness.

Much discussion and negotiation of guidelines takes place internally in administrative agencies, often in the shadow of the law. This analytical framework should help ensure that internal debates proceed on the basis of an understandable framework which, moreover, can be used by lawyers and judges whenever the lawfulness of a particular set of guidelines has to be adjudicated.

Keywords: guidelines, soft law, judicial review, fettering of discretion, Charter, binding, non-binding, bindingness