Michael Foran: Against Consistency as a Ground of Review

Equal treatment, the principle that like cases should be treated alike, occupies a paradoxically ambivalent place within moral and legal discussion of equality. In one sense, it is an essential feature of justice that similarly situated persons be afforded similar treatment and that differences in treatment be adequately justified. This principle is informed by and presupposes the moral equality of persons, without which the demand for justification of departures from consistent treatment would be unintelligible. However, in another sense, equalisation of treatment, purely for the sake of equalisation, gives rise to the now well established “levelling-down” objection: a requirement of equalisation can be satisfied either by treating people equally badly or by replicating wrongful forms of treatment, even when we are aware that the treatment in question is wrongful. The levelling-down objection indicates that equalisation for its own sake is unlikely to be intrinsically valuable, even if there may be some instrumental reasons to do so.

This being the case, it is wrong to conclude that the principles of judicial review do or should demand equalisation. Once we account for the institutional and evolving context that legal principles must be situated within, the sting in the tail of the levelling-down objection is drawn away. Equal treatment always requires a ‘baseline’ against which departures can be assessed. Within common law adjudication, determinations as to who is sufficiently similarly situated, such that like treatment may be assessed, depends upon institutional and social context. However, even in circumstances where there are two similarly situated cases which have been afforded inconsistent treatment, this does not independently render the decision unlawful precisely because the common law does not value equal treatment for its own sake. In both judicial review and the general development of caselaw, it demands the justified application of rules and principles to pertinent cases, subject to the requirement that departures from previous practice are adequately justified by reference to legal principle. Public authorities are not required to replicate their previous mistakes simply because a new party wishes to benefit from equal treatment. As Gibson LJ stated in R v Secretary of State for Education and Employment, Ex p Begbie, whether an authority should be permitted to depart from a previous mistake “depends on whether that would give rise to an unfairness amounting to an abuse of power”. In the last analysis, legitimate expectations must be balanced against the undesirability of replicating previously wrongful treatment, with the overriding concern being the prevention of unfairness that would amount to an abuse of power. In circumstances where there has been both a mistake and a legitimate expectation, the constitutional balance will inevitably have to countenance some unfairness, either from the departure or from the replication of a mistake. The ultimate concern must always be to prevent an abuse of power that would render a decision unlawful.

It is for this reason that the court in R (On the application of Gallaher Group Ltd and others) v The Competition and Markets Authority, concluded that “the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law” (at [24]). However, it may have been more accurate to note that there is no concrete rule demanding consistency, even if there is a general principle which is itself informed by a commitment to legal equality and the rule of law. A charitable reading would be that equal treatment is not a distinct head of review, even if it is an important constitutional principle. While “treating like cases alike and unalike cases differently is a general axiom of rational behaviour … frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative acts to be irrational” (as per Lord Hoffmann in Matadeen v Pointu), it is not always required. Indeed, there will be cases where equalisation of this kind is manifestly unjustified. Lord Bingham is thus correct to stress that a decision maker is “not bound, and … not entitled, to follow a previous decision which he consider[s] erroneous and which would yield what he judged to be an excessive award” (R (O’Brien) v Independent Assessor at [30]). The determination of like cases, for the purposes of a principle of equal treatment, should be judged by reference to the proper aims of the public authority.

Within the common law, equal treatment is not valued simply because treatment is equalised, but rather because departures from consistency raise normative concerns which must be addressed before departure can be justified. However, this justification must be assessed by reference to the existing grounds of judicial review. If no rational justification can be offered, if the reason for departure is grounded in legally irrelevant considerations, or if departure is wholly disproportionate in its assessment of fundamental rights, then the decision will be prohibited as unreasonable and unlawful.

The court, in Gallaher, was thus correct to reject consistency as an independent ground of review. When placed in its appropriate context (see Hanna Wilberg’s post), the Gallaher decision can be read as a reaffirmation of the general common law position that equal treatment is only instrumentally valuable. When a ground of review is shown to be applicable to a given case, that is sufficient to establish unlawfulness. If a public authority acts unreasonably it acts unlawfully. It is not the case that an authority acts unlawfully simply because they act inconsistently with previous patterns of conduct. The inconsistency certainly raises a question of lawfulness. But if it is not shown that, for example, legitimate expectations have been undermined or that the departure is unreasonable, then there is no basis on which the court can legitimately hold the decision to be unlawful.

Indeed, judicial review would itself be inconsistent if it were to recognise consistency as an independent ground of review, given that it could conflict with the well-established duty not to fetter administrative discretion (see; R v Port of London Authority, ex p Kynoch Ltd [1919] 1 KB 176). It cannot be the case that a public authority acts unlawfully both when it departs from previously established conduct and when it refuses to depart from previously established conduct on the basis of there being a fixed rule. Each case should be decided on its merits, with institutional history, legitimate expectations, and case-specific circumstances all being relevant to the correctness of any decision. Public authorities must, therefore, seek clarity and predictability in the law without unduly fettering discretion or replicating errors. As with judicial development of the common law, administrative decision-making must evolve in a principled manner that adequately respects the rights of legal subjects. There is no common law right to equal treatment, even if there is a general principle which provides normative grounding for legal determinations, without amounting to an “all or nothing” standard. Unlike legal rules which are either valid or invalid, constitutional principles have weight and can thus be balanced against each other and subject to justified exception.

It should always be remembered that equal treatment is itself derived from a more fundamental commitment to treating persons as equals. Legal equality, the principle of equality before the law, focuses on maintaining an equality of status of legal subjects living under the rule of law. Departures from equal treatment are not only compatible with a commitment to legal equality; they are often required, should previous treatment fail to properly adhere to constitutional principle. Even in circumstances where there is no previous mistake and a public body simply wishes to develop or evolve its policies through time, judicial review must proceed on the basis of legal principle. Inconsistency in treatment may, by virtue of the moral equality of persons, give rise to a demand for constitutional justification, but it cannot independently ground the unlawfulness of an administrative policy. This is in direct contrast with the actual grounds of review which need only establish themselves in order to establish unlawfulness.

Recognising consistency as a ground of judicial review will do one of two things. It will either prevent public bodies from developing or altering their practices in accordance with changing context and evolving policy, or the ground of consistency will itself be inconsistently applied. Either consistency means that no departure from equal treatment can be classed as lawful, or consistency itself will ground unlawfulness in some instances but not others. If the latter is what is envisaged and adopted, then we are left to determine what principles or rules, independent from equal treatment, can differentiate lawful departures from unlawful departures. Should those principles derive from the existing principles of judicial review, consistency is superfluous as a ground for review. Should they derive from some other principles or considerations, consistency becomes the gateway through which the political merits of a decision are assessed, unconnected from constitutional principle and the rule of law. Consistency is, at best, a distraction. At worst, it collapses the distinction between appeal for legality and review of the political merits of a decision, threatening to undermine the rule of law and the separation of powers by grounding illegality in an assessment of the political merits of government policy without any connection to constitutional principle.

I further develop these thoughts in Michael Foran, “Equality Before the Law: A Substantive Constitutional Principle” (2020) Public Law (forthcoming).

My thanks to Trevor Allan, Alison Young, Nick Kilford, and Yan Kai Zhou for comments on a draft of this note.

Michael Foran is a PhD candidate in law at the University of Cambridge.

(Suggested citation: M. Foran, ‘Against Consistency as a Ground of Review’ U.K. Const. L. Blog (9th March 2020) (available at https://ukconstitutionallaw.org/))