One of my current research projects concerns how to balance individuality and consistency in public law. An example may help to illustrate the potential problem:
I am in charge of a hypothetical government fund which invites applications from academic researchers for funding. You apply to me for financial assistance to buy a new laptop. You are entitled to expect that I, a Public Official, will look at your application carefully and consider whether you are worthy of a financial award.
You would be annoyed to find out that someone else got money when you did not if your circumstances and applications are substantially similar. I, the decision-maker, will therefore likely find it useful to have a policy to guide my decision-making, so that I can ensure its consistency by measuring each application against certain criteria.
But what if that policy says, for example, that I will prioritise funding for conference attendance? Now we come back full circle – my pro-conference, and thus implicitly anti-laptop, policy might mean that your application has not received careful consideration at all, because I am predisposed not to grant you any money.
In public law, this apparent conundrum has become all the more pressing in recent years. With the growth of the administrative state, more and more policies are needed to deal with the sheer number of decisions that have to be made dealing with, for example, immigration, financial benefits and benefits in kind (e.g. accommodation). Delegation of decision-making in turn necessitates policies in order to ensure consistent decision-making across multiple caseworkers. We as a society are also less tolerant of inequality and more suspicious of government than in the recent past, making transparent decision-making all the more important.
Traditionally, individuality was highly prized. In administrative law, this was encouraged by the ‘non-fettering principle’. The non-fettering principle, which still applies, states that a decision-maker may have a policy, but they must not fetter their discretion by closing their mind to someone with something new to say. I can give preference to applications to fund conference attendance, but I must be willing to consider an application for the purchase of a laptop.
In recent years, however, a new principle emerged (although its continued existence is uncertain following a conflicting UK Supreme Court judgment) of consistent application of policy. If a decision-maker has a policy, they are expected to apply it unless there is good reason to depart from it.
Although these two principles (non-fettering and consistent application of policy) might appear to be in conflict, they in fact say the same thing from different perspectives – apply a policy unless there is a good reason to depart from it. That good reason might be that someone has something new to say, in which case a decision-maker should consider writing a new exception into their policy to ensure consistency going forward. Or it might be that someone has relied on a previous promise or practice such that application of the usual policy would be grossly unfair (known in administrative law as the doctrine of legitimate expectations).
A topical example of the need for flexibility in policies concerns the Windrush scandal. A policy that the UK should be a ‘hostile environment’ for illegal immigrants was manifested by an instruction that anyone who could not produce the relevant documents was to be deported, on the assumption that they were in the country illegally. The so-called Windrush generation and their descendants were British citizens who came from the Caribbean at the UK’s invitation to help rebuild the country in the aftermath of the Second World War. They were British citizens, not illegal immigrants. But they often had no documents to show, sometimes because the Home Office had destroyed them. Nevertheless the ‘hostile environment’ policy was applied rigidly to them. In fact, former Home Secretary Amber Rudd said in Parliament in April 2018 that she was ‘concerned that the Home Office has become too concerned with policy … and sometimes loses sight of the individual’.
Non-fettering therefore seems to have fallen out of favour as consistency has become more prized. One purpose of my research is to argue that it is not paradoxical to have both consistency in the application of policies while still respecting the individual as per the non-fettering principle. Having policies is beneficial. For the decision-maker, it makes their decision-making more efficient. For the citizen, it provides for transparency (assuming the policy is published) and can help people decide whether or not to apply to a certain scheme, and to put in the best application they can, knowing what the decision-maker is looking for. This is an important aspect of the rule of law in its conduct-guiding incarnation i.e. setting out that the law should be clear and accessible enough for citizens to guide their lives by. Policies also help to ensure equality – another rule of law value. But policies are not rules – they have to have flexibility.
The main advantage of policies is that they can balance individuality and consistency. As former Court of Appeal judge Sir Stephen Sedley has said, policies have ‘virtues of flexibility which rules lack, and virtues of consistency which discretion lacks’ (Ashes and Sparks: Essays on Law and Justice (Cambridge University Press, 2011) 262). We can have the best of both worlds.
Shona Wilson Stark
Official Fellow and Director of Studies in Law, Girton College
Fixed-Term Lecturer in Public Law, Faculty of Law, University of Cambridge
A chapter on this topic, entitled “Non-fettering, Legitimate Expectations and Consistency of Policy: Separate Compartments or Single Principle?” is due to be published in an edited collection, which Dr Stark is co-editing with Dr Jason Varuhas, Associate Professor, University of Melbourne. “The Frontiers of Public Law” will be published by Hart Publishing in 2019 (a draft of the chapter can be obtained by emailing here). The collection gathers together papers from the third biennial Public Law Conference, of which Dr Stark is co-convenor (together with Dr Varuhas), which took place at the University of Melbourne in July 2018. The fourth biennial Public Law Conference is due to take place in late June 2020 at the University of Ottawa, co-organised with the University of Cambridge. Those interested can sign up to the mailing list and follow updates on Twitter.