Policies are not law. Nevertheless, they play a large role in administrative law, providing clarity as to how a public authority will exercise a discretionary power. Policies can also be relevant considerations, create legitimate expectations, or require that an individual who falls within the scope of a policy should have that policy applied to them, unless there are good reasons not to do so. Public authorities may also be required to formulate or publish a policy setting out how discretion is exercised.
Despite their growing prevalence, uncertainty surrounded when policies could be subject to judicial review. The leading authority is the decision of the House of Lords in Gillick. However, decisions of the Court of Appeal post Gillick had suggested a possible loosening of the Gillick criteria, making it easier to challenge policies which may have been applied in a manner that was unlawful. In R (A) v Secretary of State for the Home Department (A) and R (BF (Eritrea)) v Secretary of State for the Home Department (BF), the Supreme Court effectively reversed this trend, reaffirming the Gillick criteria.
Whilst this may be regarded by some as further evidence of an apparent reversal of an earlier trend of broadening judicial review, I will argue that this clarification is justified and helps to provide a better understanding of the relationship between the judicial review of policies and of individual decisions. Nevertheless, it is important both to restrict these cases to policies designed to provide clarity as to how public authorities exercise their discretion and not to the challenge of other types of policies or guidelines. In addition, these cases highlight the need to reinforce other forms of accountability over the growing use of policies.
Illegality not irrationality
Gillick concerned a challenge to the legality of a policy on the prescription of contraceptives to children under the age of 16. The policy advised GPs that it would be unusual to provide contraceptive advice or treatment to those under the age of 16 without parental consent. However, it did permit GPs to prescribe contraception to under 16s without parental consent in exceptional or unusual circumstances, without providing a full account of what would be unusual or exceptional. A majority of the House of Lords concluded that the policy was lawful. It did not require or positively encourage GPs to act unlawfully. Instead, it was possible to interpret the policy such that a GP could follow this guidance and also ensure that they did not infringe on parental legal rights.
In A, the Supreme Court, first, clarified the Gillick test: ‘does the policy in question authorise or approve unlawful conduct by those to whom it is directed?’. (at ) If so, the policy was unlawful. Second, the Court clarified that this test was one as to the legality, not the rationality of the policy. When a policy authorises or approves unlawful conduct ‘it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way. In this limited but important sense, public authorities have a general duty not to induce violations of the rule of law by others.’ (at )
Third, having set out these general tests, the Supreme Court provided three situations when a policy may be unlawful, drawing on the categories established by Rose LJ in Bayer. First, a policy may include an incorrect positive statement of the law, thus inducing someone who follows the policy the break the law. Second, a policy may provide inaccurate advice, either by omission or through misstatement, in a situation when a public body has a duty to provide accurate advice as to the content of the law. Third, a policy may fail to provide an accurate account of the law, either through misstatement or omission, in a situation where a public authority states that its policy provides an accurate account of the law. (at )
Gillick, A and BF all fall into the first category. In Gillick, the policy was not unlawful as it did not induce the breaking of the rule of law by either authorising or approving unlawful conduct. The same is true of the policy challenged in A, the Child Sex Offence Disclosure Scheme, part of the Multi-Agency Public Protection Arrangements. The policy stated that the police should consider whether they should seek consent from an individual before disclosing information about that individual to the public. However, it did not set out all of the circumstances that the police should take into account. It neither authorised nor approved unlawful behaviour. Despite failing to set out all of the criteria, the Supreme Court did not think that the policy gave a misleading direction. Rather, it reminded those applying the policy of the need to satisfy themselves that any disclosure of information was in line with the common law and Article 8 ECHR. Therefore, the policy was not unlawful on these grounds. A similar conclusion was reached in BF.
A more stringent test
In both A and BF, the Supreme Court reversed the decisions of the Court of Appeal which had concluded that the policies had been unlawful. The Court of Appeal had relied on the line of cases from Tabbakh and Refugee Legal Centre, which appeared to establish an ability to review policy decisions which had breached a duty to act fairly. In Refugee Legal Centre, for example, the court assessed whether a policy providing for a three-day window for decision-makers to interview and assess a particular type of asylum application gave rise to significant unfairness. The Supreme Court in A rejected this line of reasoning. Policies are not unlawful merely because they create an unacceptable risk that the application of the policy would give rise to unfairness. Instead, Tabbakh and Refugee Legal Centre should be analysed in the light of assessing whether a policy authorised or approved unlawful action which, when there was a duty for an official to act fairly, would include authorising or approving those applying the policy to act unfairly. Merely demonstrating that it could be possible for a policy to be applied unfairly will not suffice. Instead, the applicant must show that the policy does not have the capacity to ensure fairness, such that a ‘significant number of cases…would be decided unfairly and hence unlawfully.’ (at )
BF provides a clear illustration of how this makes it more difficult to demonstrate that a policy is unlawful. BF concerned policy guidelines as to the treatment of those entering the UK illegally. The law relating to asylum seekers applies differently depending on whether the individual claiming asylum is a child under the age of 18, or an adult aged 18 or over, particularly relating to detention pending possible removal from the UK. However, it can be difficult to determine whether an asylum seeker is an adult or a child. Asylum seekers frequently do not have supporting documentary evidence and it can be difficult to determine age accurately according to physical appearance and demeanour. The policy stated that if the ‘physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no evidence exists to the contrary’, the asylum seeker could be treated as an adult and not as a child.
The applicant argued that the policy was unlawful as it could be possible for an immigration official following the policy to, wrongly, treat someone under the age of 18 as if they were an adult. This, in turn, may mean that a child might be detained when it was unlawful to do so. The Supreme Court disagreed. Whilst this might be technically possible, nevertheless the policy neither authorised nor approved unlawful conduct. When making this determination, courts have to compare two normative statements: the statement of the law and the statement of the policy. To assess whether a policy was unlawful according to whether it may be factually possible to adhere to the policy and yet also break the law was to apply too high a test. There is no duty on the part of public authorities to ensure that their policies remove all risk of possible misapplication of the law. Instead, their duty is only to ensure that policy directions did not contradict a legal duty placed on the addressee of the policy. (at )
A move in the right direction?
As the Supreme Court recognised, A and BF provide greater clarity as to the review of policies, replacing a potentially vague test – whether there is an unacceptable risk of unfairness – with a clearer assessment of whether a policy authorises or approves unlawful behaviour. (at -) It also provides a better means of reviewing situations where a policy itself is unlawful, and when the application of the policy to a particular individual is unlawful. To return to BF, it may well be the case that, occasionally, an immigration official applying the policy wrongly identifies a child as an adult. It is better for these possible errors to be corrected by an individual application for judicial review, demonstrating that the applicant had been treated unlawfully. To declare a policy unlawful when there is only a risk that it may be applied unlawfully may go too far. It may dissuade public bodies from adopting policies, undermining the ability of policies to provide clarity, certainty and efficiency in administrative decision-making. It may also give rise to considerable uncertainty if a policy is struck down as it may give rise to significant unfairness. An unlawful policy may have been relied on by large numbers, some of whom would have been treated lawfully and others not. If that policy is then quashed, does that mean that all decisions taken applying that policy should now be deemed unlawful, or are the decisions unlawful only if it can be proved that the application of the policy to that particular individual was unlawful? (See, for example, TN (Vietnam), which has been heard but not yet decided in the Supreme Court).
The Supreme Court also concluded that an assessment of whether a policy created an unacceptable risk of unfairness was a departure from Gillick that could not be justified as an incremental development of the common law. (at ) Moreover, the Court was concerned that applying the ‘unacceptable risk of unfairness’ test required courts to stray from their proper constitutional function. First, courts may need to evaluate how administrative systems operate, or evaluate statements of policy in order to assess whether a policy is inherently unfair. These are ‘the province of the executive government’, (at ) not the courts. Second, it may mean that courts have to carry out statistical analysis in order to determine the relative likelihood of unfairness in the application of a policy (as was the case in the Court of Appeal in BF). Again, this is not something for which the court is ideally suited.
All of these concerns are valid. There is a need to distinguish between situations in which a policy is unlawful and those in which a policy is generally lawful, and its application would normally give rise to lawful outcomes, but where it may nevertheless apply so as to treat a particular individual in an unlawful manner. Difficulties can arise when this distinction is not drawn in the right place. It may seem that the best solution is to strike down a policy when its application is more likely than not to give rise to a public body acting unlawfully. This would minimise breaches of the rule of law, as well as providing for a more efficient use of litigation: one legal challenge to a policy is better than a series of challenges to its application. However, difficulties may then arise as regards remedies, particularly as regards the impact on third parties if a policy is quashed. These concerns underpin the proposed reforms in the Judicial Review and Courts Bill to introduce suspended quashing orders and prospective only remedies. Striking down a policy when it authorises or approves unlawful action avoids difficulties as regards remedies, but may breach the rule of law when a lawful policy can apply in a manner that breaches the law. This breach of the rule of law can be remedied by bringing an action for judicial review. This would only be problematic if the existence of the policy deterred individuals from bringing actions of judicial review.
The above analysis nevertheless suggests two potential problems. First, we need to assess the scope of application of A and BF. In A the Supreme Court states that its judgment concerns ‘the standards to be applied by a court when it is asked to conduct a judicial review of the contents of a policy document or statement of practice issued by the Government’. (at ) BF is ‘concerned with judicial review of policy guidance issued by the Secretary of State’. (at ) Both of these policy documents were addressed to public bodies, setting out how their discretionary powers were to be exercised. However, the three categories of cases which may trigger the Gillick test, and the broader statements of these cases concerning ‘policy documents’ and ‘statements of practice’ could be read as going beyond the judicial review of policies which guide how public authorities exercise their discretionary powers. Could this include the review of guidelines regarding the implementation of legal rules that are addressed to the public more generally where the public body issuing the guidelines either has a duty to give an accurate account of the law, or has undertaken to provide an accurate account of the law?
All of the cases discussed by the Supreme Court in A and BF concerned situations where a public authority created a policy that was addressed either to another public body, or to a body performing a public function. This may suggest that A and BF are limited to these situations: where a public body provides guidelines to other public authorities concerning how a discretionary power should be exercised. I would argue that A and BF should be limited to these cases. When a policy is addressed to, or is designed to regulate the conduct of a body that is not subject to judicial review, often the only means of upholding the rule of law would be to challenge the policy, not its individual application. Moreover, public bodies should bear a greater responsibility for ensuring that private individuals do not act unlawfully when they adhere to guidelines. Consider, for example, guidelines issued to hospitality venues concerning how to ensure compliance with Covid regulations. If these guidelines are inaccurate, venues complying with these guidelines may nevertheless act unlawfully. This may mean that a venue is fined for failing to comply with the Covid regulations. Alternatively, the venue may face legal action for failing to provide hospitality when it would have been lawful to do so, but the guidelines suggested that this was unlawful. Whilst it could be argued that the hospitality venue should have followed the law and not the guidelines, this may defeat the purpose of providing the guidelines in the first place. A better means of upholding the rule of law in these situations, where a public body either has a duty to provide accurate information or has undertaken to do so, is to enable a challenge to the legality of the guidelines when they produce a significant risk that adhering to the guidelines will give rise to unlawful behaviour.
Second, whilst it is necessary to ensure that courts do not stray from their proper role, nevertheless it is also important to ensure that there are other checks over the formulation of policies to ensure an effective system of administration and that sound policy choices are made. This could be better achieved through legislation setting out clear legal requirements of consultation in the formulation of policies, which could help ensure better policies are adopted in the first place. In addition, it may require codes and internal review procedures to facilitate effective systems of administration within and across governmental departments. This will better ensure the facilitation of good administration, whilst ensuring that the law was there as a last resort to strike down policies that undermined the rule of law by authorising or approving unlawful action in the exercise of discretion by a public authority, or which posed a significant risk that those adhering to guidelines designed to help them comply with the law would nevertheless act unlawfully.
With thanks to Professor Mike Gordon for his comments.
Alison L Young, Sir David Williams Professor of Public Law, University of Cambridge
(Suggested citation: A. L. Young, ‘Judicial Review of Policies – Clarification or Judicial Retreat?’, U.K. Const. L. Blog (5th August 2021) (available at https://ukconstitutionallaw.org/))