Firming Up Judicial Review of Soft Law? R (A) v Secretary of State for the Home Department, [2021] UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department, [2021] UKSC 38

Policies, guidelines, operational manuals and soft law instruments are pervasive in contemporary public administration. But when can an applicant challenge a soft law instrument as unlawful on the basis of illegality, irrationality or procedural unfairness? 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 on judicial review of soft law for illegality and procedural unfairness, though I will suggest 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 law — illegality, irrationality, procedural impropriety — 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).

A was a sex offender. He challenged a policy setting out the process to 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 in A’s position. His challenge was based on the failure of the policy to make adequate provision for A’s participation in the disclosure process.

BF was an asylum seeker. On his arrival in the United Kingdom, 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 — Criterion C, which applies 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”. 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, stretching out over a period of many years, the lower courts had developed and applied an “unacceptable risk” test for determining the unlawfulness of a policy: “a policy which is in principle capable of being implemented lawfully but which nonetheless gives rise to an unacceptable risk of unlawful decision-making is itself an unlawful policy” (R (Suppiah) v Home Secretary [2011] EWHC 2 (Admin), at para. 137).

This 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 para. 38). This requires courts to compare two normative statements: one, what the law requires; two, what the policy requires. Only if the policy “directs” administrative decision-makers “to act in a way which contradicts the law” will it be found to be illegal (A, at para. 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:

There is often no obligation in public law for an authority to promulgate any policy and there is no obligation, when it does promulgate a policy, for it to take the form of a detailed and comprehensive statement of the law in a particular area, equivalent to a textbook or the judgment of a court. Since there is no such obligation, there is no basis on which a court can strike down a policy which fails to meet that standard (A, at para. 39).

In justifying this more restrictive test, Lord Sales drew on what I have termed “administrative law values“. First, good administration. Judicial review doctrine should not dissuade administrative decision-makers from adopting policies, given the usefulness of such soft law instruments to the efficient and effective achievement of statutory objectives:

If the test were more demanding there would be a practical disincentive for public authorities to issue policy statements for fear that they might be drawn into litigation on the basis that they were not sufficiently detailed or comprehensive. This would be contrary to the public interest, since policies often serve useful functions in promoting good administration. Or public authorities might find themselves having to invest large sums on legal advice to produce textbook standard statements of the law which are not in fact required to achieve the practical objectives the authority might have in view (A, at para. 40)

I would add that good administration is not the only value at play here: policies permit people to more easily plan their affairs and thus engage the value of individual self-realization.

Second, too loose a test would compromise the decisional autonomy of administrative decision-makers, as “the courts would be drawn into reviewing and criticising the drafting of policies to an excessive degree” (A, at para. 40):

Any such obligation would be extremely far-reaching and difficult (if not impossible in many cases) to comply with. It would also conflict with fundamental features of the separation of powers. It would require Ministers to take action to amplify and to some degree restate rules laid down in legislation, whereas it is for Parliament to choose the rules which it wishes to have applied. And it would inevitably involve the courts in assessing whether Ministers had done so sufficiently, thereby 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 para. 52).

Only when there is positive authorization of illegal conduct is the “rule of law” undermined in such a “direct and unjustified way” as to attract judicial intervention (A, at para. 38).

Both of the policies at issue here were lawful when assessed under the Supreme Court’s new standard. Although the policy challenged in A did not comprehensively 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 para. 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 para. 53; see also at para. 63). The policy “directs” immigration officials “to treat immigrants they believe are children as children and to treat immigrants they believe are adults as adults”, which involved no contradiction with legal requirements (at para. 61).

For that matter, most of the typical situations of unlawfulness, involving policies which conflict with statutory or regulatory rules (see e.g. here), or fetter discretion (see e.g. here), or create extra-statutory regulatory regimes (see e.g. Ainsley Financial Corp. v. Ontario (Securities Commission) (1994), 121 DLR (4th) 79 (ONCA)) would satisfy this test. Indeed, Lord Sales’ test might make it easier in some circumstances to challenge the lawfulness of a policy. The objection that a challenge to a policy is premature because a decision has not yet been taken and the ‘risk’ might never crystallize as harm would lose all its force (see further here). 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, squarely in line with Lord Sales’ new test.

Lord Sales acknowledged that there will be harder cases (at para. 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 the quantitative element, focusing instead on qualitative considerations (see A, at paras. 41, 65; BF, at para. 51).

Two aspects of Lord Sales’ discussion of harder cases merit comment in this regard. First, he noted that there are three ways in which a policy might be unlawful because of what it says or omits to say about the law:

(i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way…; (ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and (iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position (A, at para. 46).

As Lord Sales conceded, with considerable understatement, much depends on the “particular context” in which a policy is used (A, at para. 47), including the “audience” for the policy (A, at para. 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, in obiter (see para. 54), the circumstances in which a policy would be inherently procedurally unfair. This sometimes goes under the rubric of ‘systemic unfairness’ (see e.g. here and here), though Lord Sales preferred the term “inherent unfairness” (at para. 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 para. 62). Lord Sales sought to merge the test for “inherent unfairness” with his ‘new’ test for the legality of policies:

If it is established that there has in fact been a breach of the duty of fairness in an individual’s case, he is of course entitled to redress for the wrong done to him. It does not matter whether the unfairness was produced by application of a policy or occurred for other reasons. But where the question is whether a policy is unlawful, that 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 (at para. 63. Emphasis added).

This test for inherent unfairness is (somewhat) distinct from the test for the legality of policies, as it is to be applied “by reference” to the test for the legality of policies (A, at para. 65).

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 para. 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 para. 68, BF, at para. 67).

Ultimately, the significance of the restatement in A and BF will depend on how significant considerations of the quantitative element turn out to be in practice.

Lastly, it is worth noting that the discussion in A and BF was primarily of judicial review of policies for illegality. In addition, Lord Sales discussed judicial review of policies for inherent procedural unfairness in obiter in A. There was no discussion of irrationality/unreasonableness as a ground of review. Soft law can also be attacked on this basis. Fewer difficult questions arise when irrationality is the ground of review: if a soft law instrument is irrational, the irrationality will be evident on the face of the instrument and, as such, there is no need for a quantitative inquiry; the analysis will be purely qualitative. However, such cases are rare.

There is much else of interest in the judgments in A and BF, including a discussion of the UNISON principle (see here) and access to courts, where statistical evidence is permissible (A, at para. 80). 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.

This content has been updated on October 25, 2021 at 01:04.