The UK Supreme Court has confirmed the principles for judicial review of policies

6 August 2021

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.

Further information

Kingsley Napley LLP regularly represents parties in judicial review challenges. Our lawyers also blog regularly about public law matters. Follow our Public Law blog for the latest commentary.

Should you have any questions about the issues covered in this blog, please contact Nick Wrightson or a member of our Public Law team.

 

About the Author

Nick Wrightson is a Partner in our Public Law team. Nick has an administrative and public law practice focused on judicial review litigation and supporting clients through public inquiries and complex inquests. Nick’s experience includes representing public bodies, private companies, individuals, representative bodies and charities – often in high stakes, politically and commercially sensitive cases.

 

Latest blogs & news

Case Note – challenging the Court’s jurisdiction in judicial review proceedings: R (Girgis) v Joint Committee on Intercollegiate Examinations [2021] EWHC 2256 (Admin)

The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.

New guidance encourages judicial review practitioners to be concise, succinct and prepared

Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.

Can you devise an effective ouster clause to exclude a category of decision making from judicial review?

The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.

The UK Supreme Court has confirmed the principles for judicial review of policies

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.

Judicial Review Reform – waiting for the sting

Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.

Government Launches Public Consultation on Reforms to Judicial Review

On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.

Supreme Court rules that Nigerian communities can have their case against Shell heard in the English courts

This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.

Striking a balance or tipping the scales? The Independent Review of Administrative Law and the possible reform of Judicial Review

On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’

Office for Students refusal to register higher education provider unlawful due to failure to delegate and ‘secret policy’

The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.

International Court of Justice and UN General Assembly do not alter the outcome of the Chagos Islands challenge

In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.

Voter ID laws and the way courts interpret legislation

Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.

The High Court confirms that unincorporated associations may participate in both judicial review claims and statutory challenges

Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.

What does the new government mean for public lawyers?

Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU. 

Enemies of the constitution? The words of those attacking independent judges are corrosive and wrong

Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.

Since prorogation ‘never happened’ what happens next?

The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.

When politics and law collide: The prorogation judicial reviews

Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.

“WhatsApp” with Dominic Grieve’s motion for Brexit communications?

Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.

High Court finds Mayor’s Congestion Charge decision did not involve unlawful discrimination

On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London [2019] EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019

 

London Climate Action Week: Saving Londoners from nitrogen dioxide, one judicial review at a time

According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.

KN Green Week: Can law help save the world?

We have seen in recent months various and different attempts by those who want to change the course of government policy on the issue of climate change.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

Skip to content Home About Us Insights Services Contact Accessibility