R (A) v Secretary of State for the Home Department [2021] UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department [2021] UKSC 38

Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.

Why do policies exist and what is their constitutional place?

Supreme Court judgments are especially helpful when they clarify and confirm the key principles underlying legal tests. In these two linked cases, Lord Sales and Lord Burnett (who co-authored both judgments) have done just that. They explain that Ministers and public authorities often have to exercise wide discretionary legal powers. When that is so, they commonly issue policies to give guidance about how their powers will be applied in practice, although this is seldom a legal obligation. Such policies are not laws. They are statements about the practical application of the law and tools for the promotion of good administration. As such, they serve several purposes, notably: (i) encouraging consistency in how the relevant powers will be applied so as to avoid arbitrary or capricious differences of outcome; and (ii) increasing public understanding of the relevant authority’s actions, and therefore its accountability.

The judges proceed to further outline the purpose such policies are intended to play, as follows:

“They constitute guidance issued as a matter of discretion by a public authority to assist in the performance of public duties. They are issued to promote practical objectives thought appropriate by the public authority. They come in many forms and may be more or less detailed and directive depending on what a public authority is seeking to achieve by issuing one. There is often no obligation in public law for an authority to promulgate any policy and there is no obligation, when it does promulgate a policy, for it to take the form of a detailed and comprehensive statement of the law in a particular area, equivalent to a textbook or the judgment of a court.”

Lord Sales and Lord Burnett also explain that the constitutional principle of the separation of powers is especially important to any assessment of how far the courts will be prepared to grapple with and review the lawfulness of any given policy. They note that it is for Parliament to choose the rules it wishes to see applied, which it does by passing legislation. It is then for Ministers and public authorities (i.e. the executive) to apply the relevant rules, without distorting them in the process. The courts, as the third leg of the constitutional tripod, will be slow to intervene in Parliament’s area of legislative choice or in the executive’s area of establishing the administrative apparatus to apply the relevant rules in practice. The limited role of the courts is to ensure that the executive does not misdirect itself by giving policy guidance that authorises or approves violations of the law that Parliament has enacted.

What principle must the courts apply?

To further clarify the courts’ limited role, the Supreme Court stated that the principle in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 provides the basis on which the courts will intervene. They will do so only if the Minister or public authority “has, by issuing a policy, positively authorised or approved unlawful conduct by others” (i.e. it misdirects officials as to their legal obligations or directs them to do something that conflicts with their legal duties). The courts’ intervention is justified in those circumstances because there is a general duty on public authorities not to induce violations of the law by others and thereby undermine the rule of law. In their judgment, Lord Sales and Lord Burnett describe the test as “straightforward” to apply, saying that it simply “calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do.”

The judges then identify broadly three types of cases where, applying the Gillick principle, a policy may be found to be unlawful by reason of what it says, or omits to say, by way of guidance about the law to which it relates. This will occur:

  1. where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way;
  2. where the public authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; or
  3. where the public authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position.

Consistent with the judges’ account of the relevant underlying principles, these examples indicate a narrow supervisory role for the court in this area.

How closely will the court scrutinise the policy?

An important further element of the judgments is what they say about the intensity of the courts’ engagement with policy detail. The main message is that policies need to be treated pragmatically. They are useful statements about the practical application of the law, and need to provide reasonably clear working tools or signposts for caseworkers and officials. It is unrealistic for them to go into full detail about exactly how a discretion should be exercised in every case. It would be absurd for the courts to impose a much more onerous obligation on Ministers and public authorities to issue policies which remove the potential for the law to be misapplied by those who are subject to a legal duty. Lord Sales and Lord Burnett firmly reject any requirement for a policy to eliminate uncertainty in relation to the application of a legal rule, stating that:

“Whenever a legal duty is imposed, there is always the possibility that it might be misunderstood or breached by the person subject to it. That is inherent in the nature of law, and the remedy is to have access to the courts to compel that person to act in accordance with their duty.”

A good policy should recognise and reinforce the legal duties to which caseworkers and officials are subject under relevant legislation, and must not conflict with such duties. It need not, however, be comprehensive. Where officials breach their legal duties in specific cases, despite whatever lawful policies may exist to assist them, legal remedies may be available to those affected in any event.

Conclusion

Some see these two Supreme Court judgments as identifying a tougher common law test for the judicial review of policies, consistent with the Lord Chancellor’s recent suggestion that ‘judicial restraint’ in this area is on the rise. Another reading is that the judgments merely recognise the reality of how policies function (as opposed to legislation) in the workings of the UK administrative state. Importantly, both the policies in question in these cases were directed at public authorities rather than at regulating the conduct of private persons, where different expectations might perhaps apply. Commentators may or may not recognise the charge that ‘judicial activism’ has begun to undermine the legitimacy of judicial review in recent years. What ought to be common ground, however, is that the legitimacy of judicial review will not be enhanced by setting Ministers and public authorities up to fail by measuring them against unduly demanding criteria. Nor would discouraging the executive from issuing policies at all, by making this prohibitively costly and legally complex, contribute to good public administration. Public authorities must themselves continue to recognise the value of drafting policies carefully and continually improving them, so that their consequences are appropriate.