Codes of Practice

There is an increasing use of Codes of Practice with limited legal force. These codes are not usually law as such, but can be referred to when a court has to decide whether or not (for example) a person has behaved reasonably.

The oldest of the current codes is the Highway Code, first authorised by the Road Traffic Act 1930 and now made by the Secretary of State subject to Parliamentary approval. It is not a Statutory Instrument and has no binding force, but breaches of the Code may be used as persuasive evidence in both civil and criminal cases.

Road Traffic Act 1988 s.38(7)

A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings, but any such failure may in any proceedings (whether civil or criminal ...) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question.

The Employment Protection Act 1975 empowers ACAS to issue draft codes of practice which are laid before Parliament for approval or annulment and then given effect by Statutory Instrument. Once again a breach of the Codes does not entail automatic liability, but their provisions are taken into account by industrial tribunals and by courts.

The Health and Safety Commission has power under the Health and Safety at Work Act 1974 to make Codes of Practice subject to the consent of the Secretary of State; no Parliamentary scrutiny is involved.

The Codes of Practice made under the Police and Criminal Evidence Act 1984 are brought into effect by Statutory Instrument (subject to an affirmative resolution of each House) after a consultation period, but are not strictly legislation in themselves. This is because the Home Office wanted the Codes to be complete in themselves (i.e. including and explaining some statutory provisions) and written in simple language (to be understandable by ordinary police officers!), and rightly felt it would be inappropriate for secondary legislation to seek to gloss an Act of Parliament. Breach of the Codes does not in itself give rise to any criminal or civil liability, but may lead to the exclusion of evidence improperly obtained and/or internal disciplinary procedings against police officers.

The Press Code of Practice is made by the Press Complaints Commission and has no statutory basis at all. However, s.12 of the Human Rights Act 1998 refers expressly to the importance of considering "any relevant code of practice" when a court is trying to resolve a conflict between (for example) a right of privacy and a right of free expression, and it is generally thought that compliance with the Code would be relevant in determining whether or not a journalist's conduct was reasonable for the purposes of the Protection from Harassment Act 1997.

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