Fettering the Prerogative: the Sandiford Case

Some time ago, I was critical of a decision of the Court of Appeal for England and Wales that permitted the executive to fetter the prerogative. I had missed the Supreme Court’s endorsement of this analysis last summer: R. (Sandiford) v. Foreign and Commonwealth Secretary, [2014] UKSC 44. Lord Carnwath and Lord Mance put the point this way (at para. 62):

In our opinion, in agreement with the Court of Appeal, this does have the consequence that prerogative powers have to be approached on a different basis from statutory powers. There is no necessary implication, from their mere existence, that the State as their holder must keep open the possibility of their exercise in more than one sense. There is no necessary implication that a blanket policy is inappropriate, or that there must always be room for exceptions, when a policy is formulated for the exercise of a prerogative power. In so far as reliance is placed on legitimate expectation derived from established published policy or established practice, it is to the policy or practice that one must look for the limits, rigid or flexible, of the commitment so made, and of any enforceable rights derived from it.

Lord Sumption also chimed in (at para. 83):

A common law power is a mere power. It does not confer a discretion in the same sense that a statutory power confers a discretion. A statutory discretionary power carries with it a duty to exercise the discretion one way or the other and in doing so to take account of all relevant matters having regard to its scope. Ministers have common law powers to do many things, and if they choose to exercise such a power they must do so in accordance with ordinary public law principles, ie fairly, rationally and on a correct appreciation of the law. But there is no duty to exercise the power at all. There is no identifiable class of potential beneficiaries of the common law powers of the Crown in general, other than the public at large. There are no legal criteria analogous to those to be derived from an empowering Act, by which the decision whether to exercise a common law power or not can be assessed. It is up to ministers to decide whether to exercise them, and if so to what extent. It follows that the mere existence of a common law power to do something cannot give rise to any right to be considered, on the part of someone who might hypothetically benefit by it. Such a right must arise, if at all, in other ways, usually by virtue of a legitimate expectation arising from the actual exercise of the power

In common with the majority judges, Lord Sumption did not consider that any legitimate expectation had been established or irrationality demonstrated.

I am unconvinced, for the same reasons I disagreed with the Court of Appeal. There is an attractive formal logic to the argument, but:

…in substance, there is less to commend the distinction. Given that the executive has chosen to invoke the prerogative and thereby affect individuals’ legal positions, there is something to be said for imposing constraints on its exercise. A positive action invites scrutiny in a way that a failure to act does not. Indeed, the constraint of rationality applies (though the applicant lost on this point – see paras. 55-60).

An additional possible constraint would be a prohibition on enacting a blanket policy. For the same considerations that underpin the rule against fettering discretion in the context of a statutory power apply here with equal force: from a fairness perspective, it is unfair to completely shut the door to individual circumstances; and from the point of view of good administration, submissions from individuals might highlight flaws in the policy. And doubtless, the individuals on the receiving (or non-receiving) end of the largesse could care less about its legal provenance. Here, the Court of Appeal’s focus on form led it to overlook substance.

It seems to me that the distinction operates particularly unfairly in a case like Sandiford. Deciding to set out a blanket policy which, say, gives everyone the same amount of money or subjects everyone to the same criteria is quite different from deciding to set out a policy of blanket refusal. Not taking account of individual circumstances seems especially likely to lead to unfairness and poor administration in the latter case. In the former case, the executive can at least claim that everyone is better off.

Adam Perry (whose post alerted me to the Supreme Court decision) is also unconvinced, though for different reasons:

The Crown has its prerogative powers so that it can use them for the public good. Why should the Crown be allowed to commit itself now to exercising a power in a certain way later, even if when the time comes it may be obvious that exercising that power in that way does not serve the public good? Sandiford never addresses that question. As far as I know, no one else squarely addresses it either. But I would be interested to know if I am mistaken.

See also Perry’s excellent analytical paper on “The Crown’s Administrative Powers“.

This content has been updated on January 12, 2015 at 12:35.