Political Expediency in Administrative Law

Following on from my previous post, here are some notes on cases involving decisions based on or influenced by political expediency…

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 concerned a statute providing that “A committee of investigation shall…be charged with the duty, if the Minister in any case so directs, of considering and reporting to the Minister on…any…complaint made to the Minister as to the operation of any scheme which, in the opinion of the Minister, could not be considered by a Consumer’s Committee…” (Agricultural Marketing Act 1958, s. 19(3)). A group of milk producers from the south east asked the Minister to appoint a committee of investigation. When the Minister refused, they sought a mandatory order compelling the Minister to act. The importance of the litigation lay in the fact that the Minister could only take corrective action under the legislation after a committee of investigation had reported. Here, the south eastern producers complained that they were disadvantaged by the operation of the statutory scheme; specifically, they were forced to sell their product at an artificially low price for which they were not compensated. The difficulty with the Minister’s refusal – apparently based on a desire that milk prices should be set by the administrative machinery in place – was that it was not based on the language or spirit of the legislation:

The reasons disclosed are not, in my opinion, good reasons for refusing to refer the complaint seeing that they leave out of account altogether the merits of the complaint itself…It has never been suggested that the complaint was not a genuine one. It is no objection to the exercise of the discretion to refer that wide issues will be raised and the interests of other regions and the regional price structure as a whole would be affected. It is likely that the removal of a grievance will, in any event, have a wide effect and the Minister cannot lawfully say in advance that he will not refer the matter to the committee to ascertain the facts because, as he says in effect, although not in so many words, “I would not regard it as right to give effect to the report if it were favourable to the appellants.” (at p. 1049, per Lord Hodson).

The Minister had “a complete misapprehension of his duties” because he had “completely misunderstood the scope and object” of the legislation (at p. 1059, per Lord Upjohn).

At issue in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386 was a grant of development aid to Malaysia to build the Pergau Dam. The grant was made under the Overseas Development and Co-operation Act 1980, s. 1(1) of which gives the Minister the power “for the purpose of promoting the development or maintaining the economy of a country or territory outside the United Kingdom, or the welfare of its people, to furnish any person or body with assistance, whether financial, technical or of any other nature”.

The Minister had been advised by his civil servants against funding the Pergau Dam project, on the basis that it was uneconomical. The Divisional Court took the view that aid could be granted only for sound economic development, an interpretation supported “by the way in which the successive ministers, guidelines, Governments and White Papers…have, over the years and without exception, construed the power as relating to economically sound development” (at p. 402). While in general the Minister may take into account “political and economic considerations such as the promotion of regional stability, good government, human rights and British commercial interests”, there was here a contemplated development that was “so economically unsound that there is no economic argument in favour of the case” (at p. 402). For criticism see Lord Irvine of Lairg, Human Rights, Constitutional Law and the Development of the English Legal System (Oxford University Press, Oxford, 2003), at pp. 164-165, and Lord Sumption in his FA Mann Lecture:

In substance what the Divisional Court decided was that this particular development grant was not a good idea. They therefore interpreted the statute as limiting the power to grant development aid to projects that were a good idea. Who was to decide what was a good idea? Naturally, the Court itself. The practical effect was to transfer to the court the discretionary powers of the Secretary of State on a matter of policy and the task of assessing the project’s merits. As it happens, Parliament’s view about the merits of the Foreign Secretary’s decision was different. It subsequently approved without demur a supplementary estimate in an appropriation bill, which reallocated the available funds so as to allow the payments to Malaysia to be made anyway, along with payments for two other projects which were thought to be open to the same objections.

“Judicial and Political Decision-Making: The Uncertain Boundary”, at p. 3.

The applicants in R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407 had as 10-year-old youths abducted and killed a toddler. Before sentencing, the trial judge had said:

Robert Thompson and Jon Venables, the killing of James Bulger was an act of unparalleled evil and barbarity. This child of two was taken from his mother on a journey of over two miles and then, on the railway line, was battered to death without mercy and then his body was placed across the railway line so that his body would be run over by a train in an attempt to conceal his murder. In my judgment, your conduct was both cunning and very wicked. The sentence that I pass upon you both … is that you shall be detained during Her Majesty’s pleasure in such a place and under such conditions as the Secretary of State may direct and that means that you will be securely detained for very, very many years until the Home Secretary is satisfied that you have matured and are fully rehabilitated and are no longer a danger to others.

The Minister took the view that they should serve at least 15 years in prison and that their first parole review should take place only after they had served 12 years in prison.  In part, his conclusion was based on the public concern about the case. There had been a sustained press campaign to keep the offenders in prison for the rest of their lives. This was an irrelevant consideration. Given the statutory framework under which the Minister essentially performed a sentencing function, Lord Goff of Chieveley held, “should he take into account public clamour directed towards the decision in the particular case which he has under consideration, he will be having regard to an irrelevant consideration which will render the exercise of his discretion unlawful” (at pp. 490-491; see also Lord Hope of Craighead, at p. 537). For Lord Steyn, the material generated by the public campaign was, in addition, “worthless and incapable of informing him in a meaningful way of the true state of informed public opinion” (at p. 525), by which he meant “public opinion formed in the knowledge of all the material facts of the case” (at p. 526).

But the House of Lords also accepted that the Minister could lawfully have regard to, for instance, the need to respond to public anxiety about the prevalence of particular types of crime. This prompted Lord Browne-Wilkinson to “sound a word of caution” (without expressing any firm view): “To seek to differentiate between the Secretary of State discovering public feeling generally (which is proper) and taking into account distasteful public reactions in a particular case (which is said to be unlawful) seems to me too narrow a distinction to be workable in practice” (at p. 503). Lord Lloyd of Berwick dissented on this point: “It is to the Home Secretary that Parliament has entrusted the task of maintaining public confidence in the criminal justice system, and as part of that task gauging public concern in relation to a particular case when deciding on the earliest release date” (at p. 517).

Contrast R (Corner House Research) v Director of the Serious Fraud Office [2009] 1 AC 756, where the Director of the Serious Fraud Office had discontinued a criminal investigation into an allegedly corrupt contract for the sale of arms between the United Kingdom and Saudi Arabia. The ongoing investigation provoked a threat from the Saudi Arabian government that it would withdraw cooperation with the British government, including in relation to counter-terrorism. The British ambassador told the Director, at a meeting that “British lives on British streets were at risk”. When the Director decided to exercise his discretion, “conferred in very broad and unprescriptive terms” (at para. 31), to discontinue the investigation, the claimants sought judicial review. For the Divisional Court, the Director had given in to a threat that subverted the integrity of the British legal system. The House of Lords took a different view:

The Director was confronted by an ugly and obviously unwelcome threat. He had to decide what, if anything, he should do. He did not surrender his discretionary power of decision to any third party, although he did consult the most expert source available to him in the person of the ambassador and he did, as he was entitled if not bound to do, consult the Attorney General who, however, properly left the decision to him… In the opinion of the House the Director’s decision was one he was lawfully entitled to make. It may indeed be doubted whether a responsible decision-maker could, on the facts before the Director, have decided otherwise (at paras. 41-42, per Lord Bingham of Cornhill).

Although she found the situation “extremely distasteful” (at para. 52), Baroness Hale of Richmond accepted that the Director was entitled to take the threat into account in exercising his discretion:

It is common ground that it would not have been lawful for him to take account of threats of harm to himself, threats of the “we know where you live” variety. That sort of threat would have been an irrelevant consideration. So what makes this sort of threat different? Why should the Director be obliged to ignore threats to his own personal safety (and presumably that of his family) but entitled to take into account threats to the safety of others? The answer must lie in a distinction between the personal and the public interest. The “public interest” is often invoked but not susceptible of precise definition. But it must mean something of importance to the public as a whole rather than just to a private individual. The withdrawal of Saudi security co-operation would indeed have consequences of importance for the public as a whole. I am more impressed by the real threat to “British lives on British streets” than I am by unspecified references to national security or the national interest. “National security” in the sense of a threat to the safety of the nation as a nation state was not in issue here. Public safety was (at para. 53).

In a strong critique of the decision, Jowell wrote that it is “surprising” that the House of Lords “positively encouraged” the view that the rule of law is only one of several relevant considerations for public officials such as the Director, commenting also: “Potential blackmailers will in future know to threaten the greatest ill for the greatest number” (“Caving In: Threats and the Rule of Law” (2008) 13 Judicial Review 273, at pp. 275-276).

This content has been updated on January 28, 2025 at 23:30.