A policy is not a law. Instead, it operates as guidance as to how the discretion of a public authority will be exercised. But is it possible, as a matter of law, for the courts to hold a government to the word of a policy it has made where that policy is later departed from? The answer is complex, but the current position appears to be that only policies which are outward-facing and impact on individual rights may be subject to enforcement by the courts.
The debate around such actions against the government for failing to properly deliver on a certain policy extends beyond that particular policy, though. Rather, it directly speaks to the relationship between the judiciary and the executive insofar as such actions determine the judiciary’s power to deal with poor governance. I argue that the current law strikes the correct balance between protecting the rights of individuals on the one hand, and maintaining the useful distinctions between policy and legislation on the other.
The legal framework governing the enforceability of policy
Policy plays a prominent role in the administrative law landscape, with almost every area of administrative activity being subject to regulation through policy. Policies may operate internally, for instance by regulating the behaviour of civil servants, or they may be outward-facing and set out, for instance, the way that certain asylum claims are to be assessed.
Judicial review of policy has moved “increasingly to the centre stage in public law”.[1] A policy itself can be subject to legal challenge in circumstances where it authorises or approves unlawful conduct by those to whom the policy is directed. This may also occur in cases where the policy does not have the capacity to ensure fairness such that a “significant number of cases…would be decided unfairly and hence unlawfully”.[2] In addition to this, there is a high-level duty that the executive ought to comply with its policies unless there is a good reason not to do so.[3] However, it is not the case that every unjustified failure to comply will be unlawful. It has conventionally been the position that policies do not create individual legal rights as such, and that consequently, individuals will not generally be able to legally enforce the terms of a policy unless that policy gave rise to a legitimate expectation of a certain outcome.
The law on the legal enforceability of policy was most recently considered by the Court of Appeal in the case of Good Law Project v the Prime Minister [2022] EWCA Civ 1580. This case concerned the use of non-corporate communication systems such as WhatsApp and private email for government business. The claimants, inter alia, argued that the deletion of WhatsApp messages and private emails was contrary to eight policies in place at the time which prohibited the use of non-governmental communication systems for official government business, and that the non-compliance with these policies was a justiciable issue. The Court of Appeal disagreed, and concluded that, in general, there was not an enforceable duty in public law to comply with a government’s internal policies. They held that policies which were not about individual cases or the rights of an individual (in this case, because the policies concerned the internal administration of government departments, and did not involve the exercise of public power), could not be legally enforceable. The Court of Appeal noted that the policies might be subject to non-legal enforcement: for instance, by disciplining civil servants who did not comply with internal policies.
The resulting position is that policies may be legally enforced where they directly impact upon the rights of individuals (for example, by setting out how a certain type of application will be determined). As the Supreme Court has suggested previously, an individual’s right to the determination of, for instance, an application in accordance with government policy is taken to come from a principle related to the doctrine of legitimate expectation, although it operates now as a freestanding principle.[4] In cases where a legitimate expectation has arisen, the courts will give effect to that expectation unless the relevant authority can demonstrate that departure from the policy is justified by reference to countervailing public interests. Two cases in which the public law doctrine of legitimate expectations was used to enforce a governmental policy demonstrate how this might work in practice.
In R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744, the claimant, an Iraqi Kurd, had his application for asylum refused on the basis that he could be internally relocated to the former Kurdish Autonomous Zone from government-controlled Iraq. This was despite the relevant Home Office policy in place at the time stating that internal relocation would not be advanced as a reason to refuse a claim for refugee status. The claimant sought judicial review of the decision to deny his application for asylum. In allowing his claim, the Court of Appeal held that there was an enforceable legitimate expectation that the Home Office would apply its published policy on immigration to the claimant, quashing the decision, and granting the claimant indefinite leave to remain. This was so even though the claimant was not aware of the detail of the relevant policy in place at the time, because, as the Court of Appeal put the point, “there plainly is a legitimate expectation in a claimant for asylum that the Secretary of State will apply his policy on asylum to the claim” (see paragraph [25] of the judgment).
In Mandalia v Secretary of State for the Home Department [2015] UKSC 59, the claimant, an Indian national, applied to the UK Border Agency for an extension of his visa so that he might study accountancy. To secure an extension, the claimant needed to demonstrate that he had held at least £5,400 for a consecutive period of 28 days ending no earlier than one month prior to the date of his application. The statement that the claimant submitted only covered 22 days, and his application was refused on that basis. The policy in place at the time provided that individuals in the claimant’s position would be invited to supply a further bank statement prior to the dismissal of their extension application. The claimant challenged this by way of judicial review, alleging that the Agency had acted unlawfully in refusing the visa extension application without first inviting him to supply a further bank statement in accordance with the guidance set out in the policy. The Supreme Court unanimously allowed the claimant’s appeal and quashed the refusal of the extension of his visa.
Where this leaves us
The current position appears to strike a suitable balance between the vindication of the rights of individuals and a recognition of the function of policy. Further, viewing the use of governmental policy through a lens of legal enforceability allows us to reflect upon how policy is used.
The current law preserves the main benefits of the use of policy. Policy has a homogenising effect upon the use of discretion, which contributes to consistency and predictability. It harmonises administrative activity which may otherwise be erratic, by providing a frame of reference for frontline decision-makers. This frame of reference is often, and necessarily, high-level. Discerning which, if any, legal rights may be generated by such a policy is likely to be complex. Under the present law, enforcement by the courts is limited, through the doctrine of legitimate expectations, to the policies with content which is most easily justiciable, because those policies confer clear and unambiguous individual rights.
Moreover, as the Court of Appeal suggested in Good Law Project, “the fact that the executive cannot create laws by making policies is based on sound constitutional reasons relating to the separation of powers”, namely that it is the function of the legislature to make the law. A finding that all policies will be legally enforceable appears to have the effect of circumventing the legislative process, and consequently, its bicameral safeguards.
Having said that, where policy which does not give rise to individual rights is used, an accountability gap arises. The current legal position allowing for legal enforceability only in cases where individual rights are affected renders the scope of review narrow. Whilst the use of policy facilitates flexibility and pragmatism from government, it renders non-compliance relatively difficult to challenge. For example, the law relating to the retention of records is regulated by a number of inward-facing policies which do not necessarily generate individual rights. Non-compliance with these policies can have disastrous consequences for the integrity of the public record, as the COVID-19 Inquiry has demonstrated recently, where there is no legally enforceable duty to comply with the framework regulating record retention. This inhibits the ability of departments to comply with access requests under frameworks such as the Freedom of Information Act. This has a serious impact on individuals, although it does not appear to infringe on individual rights.
Where the content of a policy is legally enforceable, some of the benefits which come with the use of policy may be enhanced. Where public representations are made, through policy, these are likely to be more reliable and predictable if legal consequences may follow from a failure to deliver on the policy. This is because, amongst other things, compliance is incentivised, and individuals will have access to a remedy by way of judicial review where a policy has been departed from, which may, in cases such as Rashid, result in a consistent outcome.
Moving forward, we have to consider whether it’s appropriate for the government to use policy instead of legislation in areas which are likely to be subject to judicial review. In Good Law Project the complexity of interpreting policy alongside legislation, and the resulting question of the rights and duties imposed, was revealed. The case speaks to the need to impose proper legislation on complex yet important areas like private communication regulation and record retention in the civil service, and the need for government to use policy appropriately. It does not, I believe, suggest the need to remove legal safeguards from the government’s use of policy altogether.
Cassandra Somers-Joce.
Cassandra Somers-Joce studied law at Oxford University, where she is currently a non-stipendiary lecturer. She has previously taught public law at King’s College London, in addition to holding research roles at the University of York and Durham University.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] R (A) v Secretary of State for the Home Department [2021] UKSC 37 at paragraph [3].
[2] Ibid at [38], [68].
[3] R (WL (Congo)) v. Secretary of State for the Home Department [2011] UKSC 12.
[4] See Mandalia v Secretary of State for the Home Department [2015] UKSC 59.