When Is Guidance Unlawful on the Ground of Illegality? – UK Constitutional Law Association - The Legend of Hanuman

When Is Guidance Unlawful on the Ground of Illegality? – UK Constitutional Law Association


jamie burton

*Editors’ note – this post is part of a series on ‘The Rule of Guidance?’. The other posts in the series will be available here.

The seemingly ever-growing expanse of “soft-law”, “policy” or “guidance”, (referred to below as “guidance”) has been cautiously welcomed as aiding the business of government and enhancing good public administration. Unsurprisingly, as the textbooks and contributions to this symposium attest, this phenomenon has generated discrete legal problems. The status (not law “as such” (R(A) at [3]), purpose (to ensure consistency in the exercise of discretion – R (Lumba) v. SSHD [2011] UKSC 12), meaning (to be judged objectively – Mandalia v. SSHD [2015] 1 WLR 4546) and content (must be rational, proportionate etc) of these ‘soft law’ iterations have raised questions with varying degrees of significance in terms of the rule of law. One such question is the legitimacy of guidance, judged by reference to its effects, both intended and unintended. This reflects the fact that guidance is often directed towards the actions of persons other than its author(s), often with implications for third parties.

This latter issue was the subject of the Supreme Court’s decisions in R (A) v Secretary of State for the Home Department [2021] UKSC 37; [2021] 1 WLR 3931 and R (BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38; [2021] 1 WLR 3967. The question considered in these cases was in what circumstances is guidance itself unlawful on account of its relationship with unlawful decision making in individual cases. After reviewing the authorities, Justices Sales and Burnett (with whom the other justices agreed) espoused an answer in R (A) that went beyond the facts of that case. The same judicial panel then applied the reasoning in R (A) to the facts in R (BF Eritrea), overturning the decision of the Court of the Appeal in the process. In both cases the guidance under attack was found to be lawful.

These decisions have been characterised as inclining towards “judicial abstentionism” (Hickman and Poole L.Q.R. 2024, 140(Jul), 381-406), and there can be little doubt that the scope for challenging guidance on the grounds of illegality has narrowed. However, the overall extent, and merits, of this ostensible retreat are less clear.

The decision in R (A)

The R (A) case concerned a challenge to non-statutory guidance issued by the Home Secretary to police officers regarding the Child Sex Offender Disclosure Scheme. The guidance indicated that, before disclosing information about a convicted offender to a third party, the police should “consider if representations should be sought” from the offender. It was said this did not accurately reflect the duty of fairness and generated an “unacceptable risk” that officers would take decisions in breach of the law. The guidance was therefore unlawful on grounds of illegality. The SC disagreed, essentially because the guidance was capable of being complied with lawfully and did not induce officers to act unlawfully.

The “Gillick principle

In reaching this decision the SC elevated the words of Lord Scarman in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (a well-known case which considered guidance to doctors concerning the provision of contraception treatment women under 16 years of age) into the ‘Gillick principle’, viz: “It is only if the guidance permits or encourages unlawful conduct … that it can be set aside as being the exercise of a statutory discretionary power in an unreasonable way.” Importantly, “permit” is to be given a positive spin: guidance must “sanction” rather than merely “not forbid” unlawful conduct [34]. It is only in such a case that “it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way” (R (A) at [38]).

What has the Gillick principle displaced?

The Gillick principle squeezed out the “substantially wider principle” deployed by the courts in previous cases according to which the legality of policy or guidance was judged by reference to whether it gave rise to a “systemic” (R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber) [2015] EWCA Civ 840; 1 W.L.R. 534) or “inherent” (R (Refugee Legal Centre) v Secretary of State for the Home Department [2004] EWCA Civ 1481; [2005] 1 W.L.R. 2219 at [10]) risk of unlawfulness (R (Tabbakh) v Staffordshire and West Midlands Probation Trust [2014] EWCA Civ 827; [2014] 1 W.L.R. 4620), meaning there was “a real risk of more than minimal number” of decisions being taken unlawfully (BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872; [2020] 4 W.L.R. 38). As there is no public law duty to produce policies which eliminate all risk of unlawful decision-making or include a detailed and comprehensive statement of the law in a particular area, equivalent to a textbook or the judgment of a court, the Supreme Court was clear that the presence of a risk of unlawfulness could not be the basis for judicial intervention (R (A), at [39]). Moreover, a wider duty would be counterproductive as it would discourage public authorities from formulating guidance and draw the court’s “into reviewing and criticising the drafting of policies to an excessive degree” (R (A) at [40]).

Significantly, whilst the Supreme Court was critical of the reasoning in a suite of previous cases (R (A) at [65-75]), it only disagreed with the outcome in one of them: R (BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872; [2020] 4 W.L.R. 38. Other than R (BF) (discussed further below), the SC was clear that the results in Detention Action, Refugee Council, R (S) v. Director of Legal Aid Casework [2016] 1 WLR 4733, R (Woolcock) v Secretary of State for Communities and Local Government [2018] 4 WLR 49 and R (W, A Child By His Litigation Friend J) v Secretary of State for the Home Department [2020] 1 WLR 4420 could “readily be assimilated with the approach to be derived from Gillick” (R (A) at [62]). The Supreme Court’s concern was that if one simply asks whether a policy creates an unacceptable risk that an individual will be treated unfairly, “there is a danger that this could be taken as a freestanding principle distinct from that in Gillick” (R (A) at [64]).

One of the benefits of the Gillick principle is the “straightforward” way in which it can be applied using a familiar judicial technique: a textual comparison between “what the relevant law requires and what a policy statement says regarding what a person should do”, something the courts are “well placed to do” (R (A) at [41]). In comparison, a risk-based approach would necessitate a very different and unorthodox type of inquiry: a statistical exercise that sought to gauge the degree to which a policy tended to produce unlawful results.

Importantly, the former approach does not of course mean that the guidance must contradict the law in every case (or cannot be applied lawfully in most cases) before it is unlawful. The “issue must be addressed looking at whether the policy can be operated in a lawful way or whether it imposes requirements which mean that it can be seen at the outset that a material and identifiable number of cases will be dealt with in an unlawful way” (R (A), emphasis added at [63]). The elusive quality is thus certainty; the certainty that, if followed, the guidance will produce unlawful outcomes in an identifiable scenario(s).

The decision in R (BF)

Therefore, the mere fact that unlawful cases could occur (or may have occurred) in the operation of the policy will not be sufficient to vitiate the policy. This was the essential feature of the facts in R (BF (Eritrea) v Secretary of State for the Home Department [2021] UKSC 38. The Secretary of State had issued policy guidance for immigration officers as to when they could assess an asylum seeker as an adult even though they presented themselves and claimed asylum as a child. That guidance stated that an individual could be assessed as an adult if their physical appearance or demeanour “very strongly suggested that they were significantly over 18 and there was no other credible evidence to the contrary”. It was challenged on the premise that it was unlawful because it did not remove the possibility that an asylum seeker who claimed to be a child might in fact be one, even though they looked older, with the result that they might be subject to detention, which was unlawful in relation to a child.

The Court of Appeal held that the Secretary of State was obliged to formulate her policy in such a way that removed the risk that a child might be treated as an adult and detained accordingly, and indicated that the risk of mis-classification of an asylum seeker as an adult would only be removed in a satisfactory way if immigration officers were directed to assess a claimant to be aged 18 or more if they thought they looked 23 or more. That direction would be consistent with the available expert evidence that suggested the margin for error was approximately five years when assessing age based on physical demeanour only.

In reversing the Court of Appeal’s decision, the SC explained that the Gillick principle does not involve comparing a normative statement with a prediction of what might happen if the persons to whom the guidance is directed are given no further information. The guidance properly stated the law (it “directs [Immigration Officers] to treat immigrants they believe are children as children and to treat immigrants they believe are adults as adults”). There was no obligation to promulgate a policy which removes the risk of possible misapplication of the law on the part of those who are subject to a legal duty.

This decision in BF (Eritrea) has attracted considerable criticism. Hickman and Poole (ibid) identify the problem thus: “The guidance, correctly understood and applied, required officials to detain some unaccompanied minors, namely, those undocumented and unaccompanied persons whose appearance and demeanour very strongly suggested they were over the age of 18, which on the facts is a category that includes a significant number of persons under the age of 18.” Hence, unlawful outcomes were all but baked into the guidance; an effect made even more probable by the fact that, unlike the guidance to police in R (A), immigration officers employed by the Home Office would not be expected to obtain independent legal advice.

This is not particularly satisfactory. The Supreme Court’s approach would hold even if the actual number of unlawful decisions was very high. It would still not be possible to say that the guidance positively induced, as opposed to merely permitted, the unlawful decisions; they would however constitute an entirely predictable outcome of its application, albeit one that could conceivably not arise (and as such would be capable of being avoided). Should this degree of risk really be tolerated? When is an unlawful outcome certain enough to be attributed to the operable guidance?

Applying the reasoning in R (A) and the problem of omissions

Ultimately in R (A), Lord Sales and Lord Burnett identified at [46] three broad situations in which a policy can be unlawful:

(i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way (i.e. the type of case under consideration in Gillick [1986] AC 112);

(ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and

(iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position.

The Supreme Court recognised that there would be hard cases. At [43], they gave the example of the successful claim the appellants brought against an earlier version of the guidance in R (A): in its original form, the Guidance did not tell decision-makers to consider seeking representations from a subject before a disclosure to the public, but nor did it tell them not to. However, reading the Guidance as a whole, it was clearly intended to set out for decision-makers a reasonably complete decision-making procedure to be followed, so in the SC’s view the Divisional Court had been right to hold that, read objectively, it misdirected decision-makers as to how they should proceed, by implicitly indicating that they did not have to invite representations whereas in many cases they had a legal obligation to do so.

This example of a hard case has proved prescient as most of the cases since R (A) have focussed on an alleged omission in a description or summary of the law, presumably because blatant misstatements of the law are relatively uncommon. Indeed, it is in the application of category (iii) that the courts have experienced the most difficulty post–R (A).

Firstly, the courts have often been confronted with a submission from the public authority that the relevant guidance does not purport to “provide a full account of the legal position”. In R (MA) v. SSHD [2022] EWCA Civ 1663, Andrews LJ accepted this submission in respect of Home Office guidance because it “cross-refers to other policies, and directs the reader to consider the relevant case law, of which it provides examples that are plainly non-exhaustive” (MA at [45]). However, it is not obvious how the Home Office officials and social workers were supposed to understand that the references to case law were non-exhaustive.

In contrast, in R (Timson) v. SSWP [2022] EWHC 2392, Cavanagh J rejected the same submission: “the guidance … has been issued by the Secretary of State to her own staff, who are the decision-makers, explaining the legal framework in which they perform their functions. The decisions will never be made by anyone other than civil servants in the Defendant’s department” [223]. Despite the fact that the guidance reiterated that the officials must use their own discretion, it was clear to Cavanagh J that the guidance intended to summarise the legal framework in which they were to perform their functions and hence category (iii) applied.

Similarly, in R (MXK) v. Secretary of State for the Home Department [2023] EWHC 1272, Chamberlain J was influenced by the relationship between the author of the guidance and its intended audience in concluding that the case fell within category (iii): “Staff would reasonably expect and be expected to follow these instructions rather than to seek independent advice of their own.” (MXK at [73]). Therefore, the potentially restrictive nature of the category (iii) gateway has been mitigated somewhat by the court’s recognition that employees will ordinarily follow guidance issued to them from their superiors, and are liable to treat it as comprehensive, even if it not explicitly stated to be.

But that is not the limit of the problems that flow from the application of category (iii). Whereas it might be said that identifying misstatements of the law is relatively “straightforward” (or no less straightforward than identifying what the law is in the first place), determining whether the omissions based scenario in category (iii) is present has proved harder to determine: when can it be said that because of an omission the guidance presents a misleading picture of the true legal position?

This is illustrated in the judgment of Cavanagh J in R (Timson). The judge found a category (iii) type breach arising from the omission in the guidance of a direction that officials must contact claimants for representations/information before they take their decision, albeit that the documents did not discount entirely the possibility that such contact should be made. However, in the same case Cavanagh J found no such breach in relation to the legal obligation to take account of the claimant’s personal circumstances when making a decision, even though the guidance did not anywhere expressly state that this should be done. He found that there was nothing in the written guidance which suggested, by implication or omission, that the personal circumstances of a claimant were irrelevant. The Judge explained “the Supreme Court made clear in R (A), it is not usually incumbent on the drafters of written guidance to go into full detail about exactly how a discretion should be exercised in every case”, but his approach to the two alleged omissions was arguably inconsistent. An omission is surely an omission, and guidance should be deemed unlawful irrespective of whether it can also be positively inferred from the guidance that officials should do the opposite of omitted legal requirement. This was the approach of Chamberlain J in MXK, where the omission alone created the scope for misapplication of the relevant law and vitiated the guidance accordingly.

True it is that the courts have recognised that perhaps the Supreme Court did not intend to “impose a rigid categorisation upon types of unlawful cases” (Timson at [143]), but clearly the three categories in R (A) will be used as a guide by lower courts. The subtlety of the judgment required when applying the third category in particular may yet generate some variability in the case law as the SC’s steer towards abstentionism filters into the judicial mindset.

Conclusion

The Supreme Court has narrowed the scope for challenging guidance based on its association with unlawful decision making in individual cases. Even where there is a high incidence of legal error in the implementation of guidance, it will survive legal challenge unless those errors are an unavoidable consequence of its application. A slightly looser test applies in the third broad category of unlawfulness, at least as it concerns omissions in guidance that purports to contain a full statement of the applicable law. Where the omission means that the guidance, read as a whole, presents a misleading picture, the guidance may be unlawful even if it does not positively stipulate that the recipient of the guidance should act in a way that is unlawful. However, beyond that scenario, the Supreme Court have made it clear that the degree of risk of unlawfulness is no longer a valid metric for determining the legality of guidance. Overall, it is perhaps too early to tell how impactful this shift in emphasis will prove to be in terms of ensuring that guidance encourages rather than undermines adherence to the law.

Jamie Burton KC, Doughty Street Chambers

(Suggested citation: J. Burton, ‘When Is Guidance Unlawful on the Ground of Illegality?’, U.K. Const. L. Blog (5th February 2025) (available at https://ukconstitutionallaw.org/))


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