Policies and Consistency

May 4th, 2020 by James Goudie KC

When there is a statutory discretion is there a requirement to have and publish a policy on the exercise of that discretion? No, says the Northern Ireland Court of Appeal in the context of the discretion of the Secretary of State for Northern Ireland, under the Northern Ireland Act 1998, implementing the Belfast Agreement, to hold a border poll : Application by Raymond McCord for Judicial Review (2020) NICA 23. The case is of general interest on policies, on the rule of law, and on general administrative law principles of consistency, equal treatment, transparency and accountability.

Inconsistency is NOT a ground for judicial review : para 86. It is no more than evidence of Wednesbury irrationality. It is a generally desirable objective. It is not an absolute rule.

Consistency is a component of equal treatment. That in turn is not a separate ground for judicial review. It is a part of Wednesbury rationality.

A requirement to act, in the absence of justification, in a consistent manner may however flow from the existence of a published policy; but an obligation to publish a policy does not arise from a general principle to act consistently.

Nor does failure to publish a policy contravene the rule of law : para 88. Rather than such a broad principle there are 2 separate principles: (1) Where ECHR rights are engaged, the requirement that an interference “ is in accordance with the law” may require publication of a policy; (2) As a matter of domestic law, where a public authority has formulated and applied a policy, it should be published.

Nor do principles of accountability and transparency require having and publishing a policy : paras 93/94.

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