"Hello I'm Unaccountable" - welcome to the guidance state

This happens in the UK too - administrative agencies and government departments from planning through the police to the NHS use 'guidance' to create rules without reference to democratic accountability:

Federal agencies issue memoranda, notices, letters, bulletins, circulars, directives, and blog posts (among other things) to evade the rulemaking process established by Congress in the Administrative Procedure Act (APA). Agencies euphemistically refer to these documents as "guidance." Guidance has been responsible for revoking permits to conduct business, barring Americans from working in their chosen occupations, prohibiting taxpayers from taking deductions, levying post-conviction penalties for crimes, and seizing property, without statutory or constitutional authority and without due process. Think of guidance as an off-the-books way for the government to ignore commonly held understandings of fairness. It's a shameless, unconstitutional scheme designed to skirt judicial review, avoid public scrutiny, and evade accountability.

Almost all planning processes rely on guidance with (often tenuous) links to the National Planning Policy Framework. ASBOs and PSPOs are framed in such a way as to make almost any action subject to arbitrary police intervention. My favourite in recent times was the police officer defending 'playing music' in a car as antisocial behaviour. I asked whether perhaps the choice of music might influence the decisions of officers to which he replied that "we would act according to guidance". Which could mean that playing The Grand March from Aida is OK but blasting out drill music isn't, we don't know because we (in this instance a Regulatory and Appeals Committee) don't have the guidance because it isn't yet written.

Among the most egregious examples of 'guidance' are in the field of human resources management and, in particular, what might be termed 'equalities'. Much of the growing denial of female spaces isn't based on regulation but rather on guidance vaguely linked to the Equalities Act and vigorously policed by campaign groups. Similarly we see gender- or race-based selection (of dubious legality) widely applied along with the active closing down of critical voices and challenges to this 'guidance'. Furthermore 'guidance' forms the basis for appeals, accusations and, too often, references to tribunal processes. And once the tribunal has decided to back the guidance (or more commonly the organisation caves in and settles) it takes on the de facto authority of a law despite never having been anywhere near the scrutiny to which laws are supposed to be subject.

The proliferation of executive agencies, public sector 'corporations' and assorted quasi-governmental partnerships has resulted in the collapse of accountability. And, with the lack of any challenge to administrative orthodoxies, the result is a system open to corruption, external pressure and a focus on 'lowest common denominator', super-safe management. The systems of scrutiny - local and national - are dominated by anything other than effective, focused scrutiny. These systems combine grandstanding politicians, policy-making by anecdote, sob stories and appeals to authority rather than a measured and analytical examination of the services supposedly being 'delivered' to the public.

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