Judicial Review of Policies

May 4th, 2022 by James Goudie KC

R (All the Citizens) v SoS (2022) EWHC 960 (Admin), a Divisional Court is concerned with whether there is a legal duty, enforceable by judicial review, to create and maintain records so that they are available for posterity, and whether policies are enforceable as a matter of public law.

At para 17, the Court addressed a procedural question. They said, at para 17 (emphasis added):-

“It should not be left to parties (or, for that matter, the court) to have to infer, from omissions in skeleton arguments, what grounds of claim have been abandoned. If a party no longer pursues a ground of claim, that ought to be made clear to the court and to the other parties. To do otherwise is inconsistent with the obligations to:

(1)     help the court to further the overriding objective (which includes identifying the issues at an early stage): see CPR 1.3 and 1.4(2)(b);

(2)     ensure that the skeleton argument defines and confines the areas of controversy (CPR Practice Direction 54A, para 14.2(a), and Administrative Court Judicial Review Guide 2021, para 19.2.2).”

From para 90, the Court addressed the legal significance of policies. They said, at para 91:-

“They constitute guidance issued as a matter of discretion by a public authority to assist in the performance of public duties.  They are issued to promote practical objectives thought appropriate by the public authority.  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.”

The Court said (emphasis added):-

“98.  The fundamental starting point is that policies are different from law and do not create legal rights as such;

  1. Policies often serve useful functions in promoting good administration;
  1. There are undoubtedly situations in which a failure to comply with a policy (without good reason) will constitute a breach of public law but, to date, those cases have been concerned with interferences with individual rights;
  1. It may well be that, as the law develops in its usual incremental way in this area, other contexts will arise in which a breach of a policy (without good reason) will give rise to a breach of the law as well. It may be that, although there is no interference with individual rights as such, a policy has been promulgated to govern the exercise of a discretionary power which may confer a benefit of significant value to an individual. But such cases would still be ones in which there is an administrative decision by a public authority, exercising public powers, in relation to an individual case.
  1. In our judgement, public law has not reached the stage at which all administrative policies have become enforceable as a matter of law. Policies come in various forms and their content is wide-ranging.  Some policies, such as those in the present context, are essentially inward facing and govern the way in which a public authority will conduct its own affairs. They do not concern the exercise of public powers.”

“106 The essential basis for judicial review lies not so much in rights but in wrongs in the sense of the unlawful exercise of public power.

“109. … The reason why the Claimants’ submissions fail is on the more fundamental ground that these policies are not enforceable as a matter of public law in the first place.  There are several good reasons why this should be so.

  1. First, these are policies which govern the internal administration of Government departments and do not involve the exercise of public power.
  1. Secondly, the broad submissions advanced by the Claimants do not sit easily with the fundamental principle of public law that guidance is precisely that and need not be “slavishly followed”.
  1. Thirdly, it is frequently the case that Parliament itself has set out to what extent a document such as a policy, a code or guidance must be taken into account by a public authority. Often it will be something which must be taken into account and may have relevance to whether there has been a breach of the law but it will not by itself be a breach of the law to fail to comply with such a document.
  1. Fourthly, our analysis does not lead to the result that there is no accountability for non-compliance with Governmental policies of the type with which this case is concerned.  We must also bear in mind the constitutional doctrine of ministerial responsibility to Parliament.  It is not always necessary that accountability for breach of policy must lead to legal enforceability in the Courts as a matter of public law.
  1. Fifthly, there would be a real risk that (if public law were to regard such policies as being enforceable as a matter of law in the Courts) public authorities would be deterred from adopting such policies. That would be detrimental to the interests of good administration.
  1. The final point is that civil servants and others must be able to identify the policy which is said to be legally enforceable quickly and conveniently. It is important in this context that there should be legal certainty.”

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