In co-authoring the Current Survey section of the journal Public Law, I have been struck by how often questions about statutory discretion, executive policy and judicial review have arisen in the last year or so. The Current Survey is not a systematic study of every judicial review case, but it does provide a useful indication of prominent issues in recent public law litigation. The cases concern different statutory schemes, but deal with a common problem: how far can the executive use policy or guidance to shape the exercise of a statutory power, and what can the courts do when the limits of that policy are disputed?
This is a familiar problem. Government departments use policies and guidance to structure decision-making and promote consistency, but those policies can also affect how statutory discretions are exercised. Policies are not legislation, but, as Cassandra Somers-Joce has discussed on this blog, they can nevertheless have legal significance.
Can the executive use guidance to restrict the exercise of a statutory discretion?
A starting point is R (AYA and others) v Secretary of State for the Home Department. The case concerned changes to the Modern Slavery Statutory Guidance governing the identification of victims of trafficking. Among other changes, the revised guidance prevented reconsideration of a negative decision against certain people facing removal to some countries.[1]
Reconsideration had previously provided a way for a negative decision to be looked at again, including where there was new evidence or a concern that the original decision had not followed the guidance. If reconsideration was accepted, removal was deferred while the new decision was made. Judicial review remained available, but it is a different kind of challenge: the court reviews the legality of the decision rather than reconsidering the merits of the case itself.
In AYA, Mr Justice Sheldon considered whether the change was lawful under the statutory and public law framework governing the National Referral Mechanism. He concluded that removing reconsideration made the arrangements for identifying trafficking victims significantly less effective. He reached that conclusion on several grounds, including that the change was inconsistent with the purpose of the statutory scheme. He also found that the guidance unlawfully restricted, or “fettered” the Secretary of State’s discretion.
“Fettering” is the usual term for what happens when a public authority implements a policy so rigidly that it no longer genuinely considers whether to exercise a discretion which Parliament has given it in legislation. Policies can provide a framework for decision-making, but they generally cannot remove a discretion which the statute leaves open. In AYA, the court held that the revised guidance crossed that line. The case also shows why it is necessary to identify exactly what discretion the statute gives the decision-maker.
When is something actually a statutory discretion, rather than an operational choice?
R (BSC and another) v Secretary of State for the Home Department provides a comparison. It concerned the Home Secretary’s move to an eVisa-only system for biometric immigration documents. The claimants argued that the policy unlawfully fettered the Home Secretary’s discretion because it left no possibility of issuing a physical document in exceptional circumstances. The Regulations technically enabled both physical and e-documents. The question was whether this gave the Home Secretary a statutory discretion to choose between the two which she had to keep open.
The court rejected that argument, distinguishing between the power to issue a document and the choice of whether it should be provided as a physical document or an e-document. The first was a power which the Home Secretary had to exercise in the relevant circumstances; the second concerned how the scheme would operate in practice. She was therefore entitled to adopt a policy of issuing eVisas without considering a physical document.
The approach to fettering in this case was to start with the statutory scheme and identify the particular power in question, in this case to issue a document. Then, to ask whether it was a power which the legislation required the Home Secretary to exercise, so that she could not lawfully abandon it. In BSC, the answer was yes for the power to issue (or refuse to issue) a biometric immigration document, but no for the choice between a physical document and an e-document.
Gabriel Tan describes this as a “non-abdicable power” test: in other words, the need to identify a power which the Home Secretary could not simply give up or rule out in advance. The difficulty is that it is not always obvious from the legislation whether Parliament intended the Home Secretary to keep a particular decision open. Working that out may require the court to consider what the statutory scheme was intended to achieve and how the different parts of the legislation fit together.
BSC is useful alongside AYA because the cases involve different questions about the relationship between statutory powers and administrative policy. BSC shows that a policy will not unlawfully fetter a discretion simply because it leaves officials with little or no choice over some aspect in an individual case. A court must first identify the power and discretion which Parliament has actually given the decision-maker.
How should courts interpret an executive policy?
R (Ammori and others) v Secretary of State for the Home Department presents a different problem. The case concerned the Home Secretary’s decision to proscribe Palestine Action under s 3 of the Terrorism Act 2000. Proscription means that an organisation is placed on the statutory list of terrorist organisations. It has serious criminal consequences, including making membership of the organisation and certain forms of support for it criminal offences.
Before making the decision, the Home Secretary had adopted a policy setting out the factors she would take into account when deciding whether to exercise the proscription power. The Divisional Court found that she had misunderstood the limits of that policy operating within the bounds of the Terrorism Act. The Court of Appeal disagreed.
The Court of Appeal treated the policy as part of the framework within which the Home Secretary had chosen to exercise her statutory power. It was not legislation, but it still had to be interpreted and applied. The policy set out five factors and allowed the Home Secretary to consider “other factors”. The Court of Appeal considered that this gave her some latitude, provided that the additional factors were consistent with the purpose of the policy. It concluded that she was entitled to take account of matters including the operational benefits which proscription might bring even though this was not within the five factors initially specified.
There has been disagreement about this approach. Some commentary argues that the policy was intended to place a real limit on the Home Secretary’s discretion, and that the Divisional Court was right to read it in that way. Other commentarytakes the view that the Divisional Court gave the policy a more restrictive meaning than its wording and purpose supported, and that the Court of Appeal was right to allow the Home Secretary greater latitude in applying it. The issue will now be considered by the Supreme Court.
Ammori adds to an already complex picture. Once the executive has adopted a policy governing the exercise of a statutory power, the court must decide what the policy means and whether the decision-maker has followed it. It must do so while leaving the decision-maker whatever room for judgment the policy allows.
What can the court do once it finds a legal error?
Secretary of State for the Home Department v R (Jimoh) concerned the application of transitional arrangements to a long-standing policy. Mr Jimoh had been granted discretionary leave to remain in the UK before 2012 and subsequently applied for indefinite leave to remain. The Home Secretary rejected Mr Jimoh’s application, based on his previous criminal conviction.
The Court of Appeal held that the policy had been misunderstood. The transitional arrangements were intended to protect people granted leave under the earlier policy from later, less favourable changes. In Mr Jimoh’s case, the historic conviction was already known to the Home Secretary when his earlier grants of leave were made. It could not therefore be relied on again as a new reason for departing from the normal route to settlement.
The Court of Appeal nevertheless disagreed about the appropriate remedy. The High Court had ordered the Home Secretary to grant Indefinite Leave to Remain. The Court of Appeal held that this went too far. The statutory power to grant Indefinite Leave to Remain resided with the Home Secretary, who retained discretion to depart from the policy where there was a proper reason to do so. The court could interpret the policy and quash the unlawful decision, but it could not, in practical effect, exercise that statutory power itself where a residual discretion remained. The case therefore had to be sent back to the Home Secretary for reconsideration.
Jimoh illustrates the distinction between interpreting an executive policy and exercising the statutory power which that policy governs. Even where the policy points strongly towards a particular outcome, the underlying decision may remain for the public authority to make. This did not mean, however, that the Home Secretary could simply refuse Indefinite Leave to Remain. On the facts of Jimoh, there appeared to be no legal reason to depart from the policy, although a different outcome could be possible if there were a proper new reason, such as new criminality or a material change in circumstances. The Home Secretary would therefore have to reconsider the case. She could either reach the same conclusion for a proper reason or decide that Mr Jimoh should be granted Indefinite Leave to Remain.
Another immigration case, R (Hippolyte) v Secretary of State for the Home Department concerned an application for Indefinite Leave to Remain under the Windrush Scheme. Ms Hippolyte did not satisfy the Scheme’s continuous residence requirement, but argued that the Home Secretary should have considered whether to exercise her residual discretion under s3(1)(b) of the Immigration Act 1971 to waive that requirement.
The High Court accepted that the Home Secretary had never exercised that discretion. It nevertheless refused to quash the decision under s31(2A) of the Senior Courts Act 1981. It considered that it was highly likely that the outcome would not have been substantially different.
The Court of Appeal disagreed. Lord Justice Singh held that the High Court had strayed into the “forbidden territory” of assessing the merits of a discretion which the Home Secretary had not exercised in this case. There was no evidence showing what decision she would have made if she had considered her residual discretion to grant Indefinite Leave to Remain properly. The court could not make that assessment.
The Court of Appeal also stressed that quashing the decision did not mean that Ms Hippolyte was entitled to Indefinite Leave to Remain. She did not qualify under the Windrush Scheme, and the Home Secretary might reach the same conclusion after lawful reconsideration. The court could require the Home Secretary to consider the discretion which Parliament had given her, but could not decide how that discretion should be exercised.
Hippolyte therefore gives a clear example of the limit on the court’s role. Once it has found that a discretion has not been exercised in a particular case, it cannot decide what the outcome would probably have been had that discretion been exercised. The decision must be made by the public authority to which Parliament gave the power.
R (RA and AA) v Secretary of State for Foreign, Commonwealth and Development Affairs concerned the Government’s Afghan Relocations and Assistance Policy and Afghanistan Response Route policy, following a serious Ministry of Defence data breach. The Administrative Court made a mandatory order requiring the Secretaries of State to revise the latter policy.
The Court of Appeal set that part of the order aside. It accepted that the court could review whether the Government’s policy was lawful and require an unlawful decision to be reconsidered. But it could not require the executive to formulate or amend its policy in a particular way. The formulation of government policy remained a matter for the executive, subject to the law. The Court of Appeal regarded the Administrative Court’s order in this case as going beyond judiciary’s proper constitutional role, although its own reasoning on this point has been questioned.
Who gets to decide?
The cases above show the challenges in the relationship between the courts and the executive over policy: government cannot use policy to remove choices which Parliament has left open, while courts cannot take over choices which Parliament has left to government. Judicial review requires government to act within the law, without making the courts responsible for governing.
Sarah Nason.
Sarah Nason is Reader in Law at Bangor University. Her research focuses on constitutional and administrative law, judicial review, and administrative justice, with particular expertise in the constitutional development of Wales and questions of access to justice.
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] Countries party to both the Council of Europe Convention on Action against Trafficking in Human Beings and the European Convention on Human Rights