It is hard to think of a concept with a more contested definition in legal and political circles than “the rule of law”. The question of what content (if any) might be found within it (and indeed, what “it” even is – a political truth? A normative ideal? A mere slogan?) has been taken up, with varying degrees of enthusiasm, by first-year law students, wizened academics, campaigning groups and politicians. If it sometimes seems that a thicker, rights-laden understanding of the term has taken root, detractors are always quick to emerge, eager to remind us of what the rule of law is and what it is not. There is a real danger in piling too much upon the notion so as to distort the concept, which may cause us to lose sight of why the rule of law is uniquely important. At the very least, framing the rule of law narrowly helps ensure that an appropriate degree of opprobrium can be generated in those instances when it is, in fact, undermined.  

This post draws attention to one such instance, which I suggest involves multiple clear and unambiguous breaches of any reasonable person’s preferred account of the rule of law. Full facts are set out by Lane J in the recent case of XY v Secretary of State for the Home Department, which can be read here. Given that one traditional facet of the rule of law is that rules (and rulings) should be publicly promulgated and made, and given the understandable reluctance one might have for wading through 142 paragraphs of dense legal reasoning, this post will set out this sorry saga, and the judicial response to it, identifying what I consider to be the four distinct, but related, breaches of the rule of law committed by the government in the process.

XY concerns a Home Office policy. Policies are tricky things in law; courts have typically adopted a hands-off approach to legal challenges relating to policies for the obvious reason that the specifics of a given policy, and in some cases the very choice as to whether to adopt a policy at all, fall outside of the scope of the enforceable and reviewable obligations imposed by the law. Ministers, therefore, can decide: whether to adopt a policy; whether to withdraw a policy; the terms of the policies they adopt, and so on. But the court retains an important role: once a policy is adopted, courts can and do interpret those policies, supplying their legal meaning and effect, much like with any other legal rule or document. A court’s legal interpretation of an applicable policy is binding, at least until that policy is modified or withdrawn.

Suppose the Home Secretary doesn’t agree with that interpretation. What can they do? They can, obviously, amend the policy, or replace it altogether. In such a case, those affected by the policy may be unhappy with the changes made, but would at least know the nature of the (new) rules applicable to their situation. The Home Secretary can also appeal that decision. If they are successful, the appeal court may well reverse the lower court’s decision, aligning the law with the Home Office’s preferred interpretation again. Here, too, there would be a sufficient degree of clarity (admittedly following a period of uncertainty): those affected by the policy would still know the rules of the game, even if those rules change as the case makes its way through the courts. What the Home Office clearly cannot do is simply refuse to apply the policy, without withdrawing or amending that policy. It cannot treat the policy as meaning X just because it does not like the fact that the court has said it means Y. That is fundamental. And yet, that is what the Home Office did in this case.  

The policy in question was the “Discretionary Leave Considerations for Victims of Modern Slavery”, Version 4.0 (this version has since been replaced with a more recent document, replicating the passages material to this case in their entirety). That policy circumscribes how Home Office caseworkers should exercise their discretion as to whether to grant identified victims of trafficking leave to remain in the UK. For present purposes, the relevant passage directed that leave to remain should be granted to applicants where this would be “necessary owing to their personal situation”.

The meaning of this section was authoritatively interpreted by Linden J in the case of R (KTT) v Secretary of State for the Home Department. In that case, the Home Office argued for a narrow interpretation of the policy, suggesting that the definition of “necessity” should take into account any concurrent claims being pursued (for example, if a claimant was pursuing an asylum claim, they would be entitled to limited leave to remain in the UK on this basis, and it would therefore not be necessary to grant leave under the terms of the Discretionary Leave Guidance itself). The judge rejected that argument, favouring a wider interpretation which required necessity to be determined solely on the basis of the merits of the claim at hand, without consideration of any alternative grounds being pursued. Unsurprisingly, the Home Office was unhappy with the decision; its preferred interpretation was rejected, leading, from its perspective, to it taking on more onerous obligations than it had expected. In material terms, more trafficking victims would become eligible for leave to remain in the UK. But that, said the High Court, was simply the consequence of the terms of the Home Office’s own policy (and its stated intent to comply with the European Convention on Action Against Trafficking). The Court’s job was to interpret the policy, which it did. If the Home Office did not like the outcome, it was at liberty to amend, change or repeal the policy. 

That is not what the Home Office did. Instead, in its response, and in its actions leading up to the XY judgment in January 2024, it committed four distinct rule of law errors leading to a breach of public law obligations as well as rights under the ECHR. Each of these rule of law errors, I suggest, are problematic enough on their own, but raise very serious concerns when considered together. 

The first rule of law error

Firstly, following the handing down of KTT judgment, the Home Office intentionally adopted a position of pausing its consideration of applications under the Discretionary Leave policy. Such applications were still accepted, and in many instances internally determined, but the outcome was not communicated to the affected parties. This, as Lane J later accepted, meant that in practice the policy which had been interpreted in KTT had been in effect replaced by a new policy of delay and non-consideration of claims. The reason for this was, it seems, simply that the Home Office disagreed with the interpretation provided by Linden J but was confident that the decision would be overturned on appeal. The Home Office’s plan was effectively to stall for time: by delaying any decisions which would involve applying the policy in a manner consistent with the wider reading mandated in KTT until that decision had been overturned by a higher court (at which point the policy could be un-paused), the Home Office could effectively avoid following the ruling it disliked.

It is not hard to see the problem with the Home Office’s conduct here. It intentionally sought to avoid following a court judgment on the basis that it was thought to be wrong. Lane J considered the issue here “obvious” but nonetheless considered that it should be “clearly and emphatically stated”; the decision in KTT “represented the law”. The government must follow the law. It therefore had to interpret and apply the policy in line with Linden J’s ruling in KTT, even if it disagreed with it, “unless and until that declaration was disturbed on appeal”. The Home Office had not done so, which is clearly unlawful. If authority for this position were needed, consider the judgment of Lord Reed in Majera, a 2021 UKSC judgment, which considered the question of “whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge” if they consider that order to be wrong for legal or any other reason. The answer, unsurprisingly, was a clear “no”. And indeed, in that case, the “legal duty to obey a court order which has not been set aside” was described as the primary manifestation of the rule of law. The Home Office’s decision to intentionally adopt and apply a position directly and knowingly contrary to that mandated by a court judgment is contrary to the rule of law.

The second rule of law error

But that is not the end of the matter. From the perspective of the claimant parties – in this case, it should be remembered, confirmed trafficking victims unlikely to have particularly robust legal literacy – the lack of any response to their applications was taken, in the absence of any other explanation, to be attributable simply to the standard delays which are now seemingly baked into the UK’s trafficking support system. As is now clear, that was not the case: rather, there was a deliberate policy of non-implementation and delay. As such, not only was the Home Office failing to follow a court judgment, but it was doing so in secret. Not all unpublished policies are unlawful per se. But, as Lord Dyson confirmed in Lumba, a policy, “if unpublished… must not be inconsistent with any published policy.” That was clearly the case here. Applying a policy, where both the existence and content of that policy is deliberately kept secret from the public and affected parties, is contrary to the rule of law.

The third rule of law error

A third problem was identified in the latter part of Lane J’s judgment. As was noted with obvious scorn, it seems to be the case that any attempt for affected parties to seek judicial review of the delays in the Home Office’s consideration of their application was met, in each and every case, with an immediate offer of discretionary leave to remain. Ordinarily, accepting this offer would lead to the termination of any judicial review proceedings. 

It is, of course, perfectly lawful for the Home Office to do this, and claimants are obviously entitled to accept it – after all, leave to remain is exactly what the affected applicants were seeking in the first place. But these offers – presented only to those threatening or lodging judicial review – had the obvious effect of preventing any judicial consideration of the wider lawfulness of the application (or, as the case may be, non-application) of the policy in question, and of the Home Office’s secret policy coming to light. As the judge put it, leave was “offered… precisely to keep the policy secret”. And further:

“it would have remained [secret], but for the work of Alison Pickup and her colleagues at Asylum Aid who… diligently assembled information from others acting for victims of modern slavery, which led to the claimant pursuing this claim, notwithstanding that he had been granted leave, and thus bringing the evidence set out above into the light of day.”

Intentionally frustrating the process of established independent accountability mechanisms in order to further unlawful conduct is contrary to the rule of law.

The fourth rule of law error

A final affront to the rule of law came when the case was finally before Lane J. There was, it seems, even at this stage, a continued effort on the part of the Home Office to conceal information. Parties to judicial review proceedings have a duty of candour, and the Home Office did not comply with it in this case. A full account of the Home Office’s failings can be found in paragraphs 105-141 of the judgment, but among the lowlights include the fact that the Home Office did not even make an explicit admission as to the secret policy’s existence until late in the process, and even then it did so only once this became obvious following the court’s consideration of expert evidence and witness statements. The court also considered that a number of submitted documents were heavily, and inappropriately, redacted. The judge criticised the Home Office in strong terms, but stopped short of making the allegation which to any reader is obvious: that they were trying to hide relevant evidence, to deny or minimise the extent of their own legal wrongdoing. That, too, is contrary to the rule of law.

Conclusion

Taking all of this together, we arrive at the following concerning account. The Home Office, firstly, intentionally adopted a position (affecting at least 600 victims; Matrix reports “at least 1500 confirmed victims”) which was knowingly contrary to a court order; secondly, it did so covertly, on the basis of a secret policy; thirdly, it tried to stop those who might expose and challenge the policy from doing so, by offering leave to those who were all but guaranteed to accept it; fourthly, it tried to minimise the extent of its wrongdoing before a court.

All of this is very much cause for concern. The XY case discloses a number of shameful breaches of the rule of law on the part of the Home Office, which should be held to account for its actions. This post finds itself in the admittedly unusual company of both The Guardian and Theresa May in trying to shine a light on this affair. But as Lane J notes, without the extraordinary work of Asylum Aid and their legal team, it is likely that this state of affairs would remain entirely in the dark. 

Towards the end of her new book, Unchecked Power? How Recent Constitutional Reforms Are Threatening UK Democracy, Alison Young points to a number of recent instances where the government straightforwardly refused to follow clear court orders, but admits that it is difficult to tell whether such cases constitute “evidence of a trend of loss of mutual respect for the courts or a series of unfortunate events”. That question remains open, but it is certainly hard to find much in the way of respect for the courts, or for the rule of law more generally, when considering the Home Office’s actions in XY.  

Lewis Graham, Law Society Fellow in Law, Wadham College, University of Oxford.

(Suggested citation: L. Graham, ‘Paused Policies, Secret Policies and the Rule of Law: XY v Secretary of State for the Home Department’, U.K. Const. L. Blog (22nd February 2024) (available at https://ukconstitutionallaw.org/))