POLICIES, guidelines, operational manuals and other soft law instruments are pervasive in contemporary public administration. But when can the lawfulness of a soft law instrument be challenged in judicial review proceedings? The UK Supreme Court considered this issue in detail in two recent decisions, setting out the principles in R. (A) v Secretary of State for the Home Department [2021] UKSC 37 and elaborating on and applying them in a companion case, R. (BF) (Eritrea) v Secretary of State for the Home Department [2021] UKSC 38. These are significant decisions, though it will be suggested that their significance should not be overstated.
Both cases involved policies, not legislation, regulations or administrative decisions. And under the classic tripartite distinction of English administrative law both cases involved challenges on the basis that the policies were illegal, not that the policies were inherently irrational/unreasonable or procedurally unfair (though, as we will see, procedural fairness was discussed in obiter dicta).
A was a convicted sex offender. He challenged a policy setting out the process the police should follow in determining whether to disclose information about previous convictions to members of the public in circumstances where a person has contact with children. Disclosure of such information has obvious consequences for people like A. His challenge was based on the failure of the policy to make adequate provision for convicted sex offenders’ participation in the disclosure process.
BF was an asylum seeker. On his arrival in the UK, he claimed asylum as an unaccompanied child. Different legal regimes apply depending on whether an asylum seeker is over or under the age of 18. But determining the age of an asylum seeker can be difficult, especially in the absence of supporting documentation. The Home Secretary had issued guidance on how to make the determination. One of the criteria – applicable when no other evidence is available – directed immigration officials to treat an asylum seeker as an adult where “[t]heir physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary” (emphasis in original). BF challenged the lawfulness of this criterion.
The Supreme Court, in judgments written by Lord Sales, held that both policies were lawful. In each case, the policy was not unlawful on its face. Rather, the potential difficulty lay in whether the policy would induce unlawful decision-making. In a series of decisions, the lower courts had treated as unlawful any policy which “is in principle capable of being implemented lawfully but which nonetheless gives rise to an unacceptable risk of unlawful decision-making” (R. (Suppiah) v Home Secretary [2011] EWHC 2 (Admin), at [137], emphasis added).
This “unacceptable risk” test, Lord Sales concluded, is too loose. Instead, a court may intervene only “when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others” (A, at [38]). This requires courts to compare two normative statements: (1) what the law requires, with (2) what the policy requires. Only if the policy “directs” officials “to act in a way which contradicts the law” will it be found to be illegal (A, at [41]).
The difficulty with the lower courts’ approach was the emphasis on risk. As there is no general public law duty to produce policies which eliminate all risk of unlawful decision-making, the presence of a risk of unlawfulness could not be the basis for judicial intervention (A, at [39]).
In justifying this more restrictive test, Lord Sales drew first on good administration. Judicial review doctrine should not dissuade officials from adopting policies, given the usefulness of such soft law instruments to the efficient and effective achievement of statutory objectives (A, at [40]). Moreover, one might add, policies permit people to plan their affairs more easily and thus further individual freedom. Second, too loose a test would draw the courts into “reviewing and criticising the drafting of policies to an excessive degree” (A, at [40]), threatening the separation of powers by “requiring courts to intervene to an unprecedented degree in the area of legislative choice and to an unprecedented degree in the area of executive decision-making in terms of control of the administrative apparatus through the promulgation of policy” (BF, at [52]). Accordingly, only when there is positive authorisation of illegal conduct is the “rule of law” undermined in such a “direct and unjustified way” as to attract judicial intervention (A, at [38]).
Both of the policies at issue here were held to be lawful. Although the policy challenged in A did not state the requirements of procedural fairness in “fine detail”, it did not contradict the legal obligations of police officers and could not be construed, when read as a whole, as giving a “misleading direction” to those charged with implementing the policy (A, at [42]). As for BF, the policy was entirely consistent with the legal duties imposed on immigration officials by the statutory scheme, which distinguishes between adults and children (at [53]; see also at [63]). The policy did not contradict the requirements of statute and regulation and, thus, was lawful (at [61]).
Lord Sales acknowledged that there will be harder cases (at [43]). Here, it becomes important to consider whether A and BF will ultimately be as significant as their author intended. The point of the old test was that assessing the lawfulness of a policy involved an assessment of the likelihood that it would be applied unlawfully. There was, one might say, a quantitative and qualitative element. Lord Sales’ new test purports to eliminate quantitative considerations, focusing instead on qualitative considerations (see A, at [41], [65]; BF, at [51]).
Two aspects of Lord Sales's discussion of harder cases merit comment in this regard. First, he noted that there are various ways in which a policy might be unlawful because of what it says or omits to say about the law (A, at [46]). But as Lord Sales conceded, with considerable understatement, much depends on the “particular context” in which a policy is used (A, at [47]), including the “audience” for the policy (A, at [46]). As such, an assessment of the lawfulness of a policy will require an assessment of how the policy is likely to be used in practice, having regard to those who will use it and the particular context in which they operate. Quantitative considerations must surely enter the analysis at some point, as courts will have to keep in mind how a policy will probably be applied by those charged with implementing it.
Second, Lord Sales also discussed, obiter (see [54]), the circumstances in which a policy would be inherently procedurally unfair (at [30]). In such cases, judicial review turns “not on what had happened in individual cases, but on looking forward from the point when a case entered the scheme to see whether the policy was capable of being operated lawfully across the range of such cases” (A, at [62]). Lord Sales sought to merge the test for “inherent unfairness” with his new test for the legality of policies. In the future, the “issue must be addressed looking at whether the policy can be operated in a lawful way or whether it imposes requirements which mean that it can be seen at the outset that a material and identifiable number of cases will be dealt with in an unlawful way” (A, at [63], emphasis added). But the analysis of inherent unfairness, even on its own terms, cannot be purely qualitative. A quantitative assessment will always be necessary to determine whether there will be unfairness in “a material and identifiable number of cases”. It is true that this need not be assessed by reference to statistics and, as such, the inherent (un)fairness of a policy will be apparent upon its promulgation (A, at [65]). But it nonetheless has a quantitative element, with predictions of how a policy is likely to be used in practice influencing the assessment of lawfulness (see e.g. A, at [68]; BF, at [67]). Ultimately, therefore, the significance of the restatement in A and BF will depend on how important quantitative considerations turn out to be in practice.
Lastly, although Lord Sales's test is designed to be more restrictive, it may facilitate judicial review in some instances, especially the typical challenges to the lawfulness of a policy, which allege conflict with statutory or regulatory rules or decry the creation of extra-statutory regulatory regimes. The objection that a challenge to a policy is premature because a decision has not yet been taken loses all its force when assessed in accordance with Lord Sales’ new test. An applicant in such a case will typically be asking a court to compare the normative statement in the policy with the normative statement in the statute or regulation, as the new test requires.
Both judgments are of high quality, as one would expect of public law decisions penned by Lord Sales (who was a distinguished practitioner of constitutional and administrative law). They are likely to firm up judicial review of policies and other soft law instruments. But how much they will do so remains to be seen.
