1. Policies: a health-check in light of recent case law Jonathan Moffett QC
27 September 2018

2. 1. What are policies?

3. A statement as to how a discretion will normally be exercised, or…
1. What are policies?
A statement as to how a discretion will normally be exercised, or…
A statement as to the decision-making process that will normally be followed
May be statutory or non-statutory
Three main types of “policy”…

4. Guidance from others LA’s own policies
1. What are policies?
Policies that influence how local authorities themselves act:
Guidance from others
LA’s own policies

5. Guidance to others Policies that influence how others act:
1. What are policies?
Policies that influence how others act:
Guidance to others

6. 2. What are the advantages of policies?

7. 2. What are the advantages of policies?
R v Secretary of State for the Environment, ex p Alconbury Developments Ltd [2003] 2 AC 295, para 143 per Lord Clyde:
The formulation of policies is a perfectly proper course for the provision of guidance in the exercise of an administrative discretion. Indeed policies are an essential element in securing the coherent and consistent performance of administrative functions. There are advantages both to the public and the administrators in having such policies. Of course there are limits to be observed in the way policies are applied.

8. 2. What are the advantages of policies?
Blanket decisions which leave no room for particular circumstances may be unreasonable. What is crucial is that the policy must not fetter the exercise of the discretion. The particular circumstances always require to be considered. Provided that the policy is not regarded as binding and the authority still retains a free exercise of discretion the policy may serve the useful purpose of giving a reasonable guidance both to applicants and decision-makers. Nor is this a point which can be made solely in relation to the Secretary of State. In a variety of administrative functions, in addition to planning, local authorities may devise and implement policies of their own.

9. 2. What are the advantages of policies?
R (Mitocariu) v Central & North West London NHS Foundation Trust [2018] EWHC 126 (Admin), [2018] PTSR 1287, para 35 per David Casement QC:
The mere fact that there is no policy employed by the Defendant does not render the exercise of its power unlawful. The Defendant in considering and acting upon the specific financial circumstances and the specific therapeutic needs of the patient, which may vary greatly, is a lawful discharge of the power.

10. 3. How do policies apply?

11. 3. How do policies apply?
No absolute requirement to act in accordance with a policy: R (Khatun) v Newham LBC [2005] QB 37, para 47 per Laws LJ
But… there is usually a requirement to act in accordance with a policy unless there is a good reason not to: R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245

12. However, it all depends on the context
3. How do policies apply?
This is a requirement of fairness, but also “a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public”: R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, para 68 per Laws LJ
However, it all depends on the context

13. 4. The key elements of a lawful policy

14. 4. The key elements of a lawful policy
be published
say what it means and mean what it says
be consistent with any statutory context
allow for exceptions and not be over-rigid
not give rise to an unacceptable risk of illegality
A lawful policy will:

15. 5. Publication of policies

16. 5. Publication of policies
Rule of law requires that there should be transparent statement of policies
Fairness requires that policies be published
European Convention on Human Rights requires that “the law” be accessible and foreseeable

17. 5. Publication of policies
GM (Poland) v Secretary of State for the Home Department
Home Office had two inconsistent policies: one published, one unpublished
Could not rely upon unpublished policy
Even though published policy had been left on the Home Office website by mistake

18. 5. Publication of policies
Publish
Could the policy affect others?
What do others need to know?
No compelling reason not to publish

19. 6. Clarity of meaning

20. How is a policy to be interpreted?
6. Clarity of meaning
How is a policy to be interpreted?
Policies are “soft law”
Correct interpretation is objective, not subjective, question
Read the policy as a whole and in accordance with the natural and ordinary meaning of the words used
Have regard to purpose and underlying objective
This approach promotes aims of consistency and transparency

21. 6. Clarity of meaning
R (Palestine Solidarity Campaign Ltd) v Secretary of State for Communities and Local Government [2017] EWHC 1502 (Admin), [2017] 1 WLR 4611
Challenge to guidance stating that local authorities should not use investment strategies for pension schemes to “pursue policies that are contrary to UK foreign policy or UK defence policy”
Alleged that guidance was insufficiently clear
While there might be borderline cases, the terms used had a “readily accepted meaning in common discourse”
“The fact that it might be more specific or better expressed, or that difficult judgments will be needed in its application to particular situations, will not in itself render it unlawful”

22. 6. Clarity of meaning
Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37, [2017] 1 WLR 1865
Dispute over correct interpretation of National Planning Policy Framework
Important not to overstate the role of the court
Courts should respect the expertise of specialist planning inspectors
Courts should expect claimants to distinguish clearly between issues as to the interpretation of a policy and issues as to its application

23. Is this actually what is meant?
6. Clarity of meaning
Is this actually what is meant?
Read with a “fresh” eye
Use plain English and avoid jargon
Flush out ambiguity
Don’t always assume an informed readership

24. 7. Consistency with the statutory scheme
Local Government Act 1972

25. 7. Consistency with the statutory scheme
Must not conflict with statutory powers/duties
Must accurately reflect relevant/irrelevant considerations

26. 7. Consistency with the statutory scheme
R (Medical Justice) v Secretary of State for the Home Department [2017] EWHC 2461 (Admin), [2017] 4 WLR 198
Home Office policy on adults who would be at risk in immigration detention
Purported to identify particularly vulnerable people
Definition of “torture” was too narrow
Policy failed to achieve statutory purpose

27. 7. Consistency with statutory scheme
Check the legal basis for the relevant functions
Make sure the policy is consistent with it

28. 8. Allow for exceptions

29. Must not be a “blanket” policy Must allow for meaningful exceptions
8. Allow for exceptions
Must not be a “blanket” policy
Must allow for meaningful exceptions
Guidance is not the same as direction
But might be room for blanket policies in some limited cases

30. 8. Allow for exceptions
R (Adath Ysiroel Burial Society) v Senior Coroner for Inner North London [2018] EWHC 969 (Admin)
Coroner adopted policy of refusing to prioritise early release of bodies on the grounds of the deceased’s religion or the family’s religion
Constituted a blanket rule preventing the coroner from taking into account relevant considerations
Policy was unlawful (on this and other grounds)

31. (Sufficient) flexibility
8. Allow for exceptions
(Sufficient) flexibility
Use qualified language (“normally” v “always”)
Might be enough to refer to departures in “exceptional circumstances”
But don’t set the exceptionality bar too high
Is it a rare case where a blanket policy is permissible?

32. 9. Unacceptable risk of illegality

33. 9. Unacceptable risk of illegality
Must not inevitably result in unlawfulness
Advice on the law must be accurate
Must not give rise to an unacceptable risk of unlawfulness

34. 9. Unacceptable risk of illegality
R (Director of Legal Aid Casework) v Secretary of State for Justice [2016] EWHC 606 (Admin)
Challenge to Legal Aid Agency’s policy on exceptional funding
Argued that it gave rise to an unacceptable risk that a person would not get legal aid where the European Convention on Human Rights required it
Difficulty of drawing a dividing line between individual instances of unfairness and unfairness inherent in the system
A matter of degree, and therefore of judgement

35. 9. Unacceptable risk of illegality
No unacceptable risk of unlawfulness
How will this policy play out in practice?
What are the range of circumstances in which it might apply?
What results might it give rise to in those cases?
Policy need not be perfect

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