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THE FLEXIBILITY RULE IN ADMINISTRATIVE LAW

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Abstract

Administrative officials are permitted to have policies as to the exercise of their discretionary powers, but those policies must be flexible, not rigid. The “flexibility rule”, as I call it here, is nearly a century old. Over time, it has become part of the furniture of judicial review: often used, rarely examined. That neglect has led to confusion, on display in recent cases. In this article I try to put the flexibility rule back on a sound footing. I argue, first, that the flexibility rule requires authorities to treat policies merely as rules of thumb. Second, the primary justification for the flexibility rule is neither legislative intent (as courts have said), nor the avoidance of error (as commentators tend to assume); it is the value of participation. Third, and as a result, the flexibility rule ought to apply to policies governing the use of prerogative and other non-statutory powers, as well as to policies governing the use of statutory powers.

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Address for Correspondence: Brasenose College, Oxford, OX1 4AJ. Email: adam.perry@law.ox.ac.uk.
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Associate Professor, University of Oxford; Garrick Fellow and Tutor, Brasenose College. For comments, I am very grateful to Nick Barber, Alison Young and two anonymous reviewers.

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1 There have been only three substantial articles published about the flexibility rule (and indeed about the principle against fettering discretion): Molot H., “The Self-Created Rule of Policy and Other Ways of Exercising Administrative Discretion” (1972) 18 McGill L.J. 310; Galligan D., “The Nature and Function of Policies within Discretionary Power” [1976] P.L. 332; Hilson C., “Judicial Review, Policies and the Fettering of Discretion” [2002] P.L. 111.

2 [2014] UKSC 44; [2014] 1 W.L.R. 2697 (“Sandiford”).

3 See the references at notes 49–51.

4 Flexibility is thought to be particularly important when a Convention right is at stake, because a one-size-fits-all approach is unlikely to be proportionate: R. (P) v Secretary of State for the Home Department [2001] EWCA Civ 1151; [2001] 1 W.L.R. 2002, at [99]–[106]; but cf. Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60.

5 See e.g. Hilson C., “Policies, the Non-Fetter Principle and the Principle of Substantive Legitimate Expectations” [2006] J.R. 289; Craig P., “Legitimate Expectations: A Conceptual Analysis” (1992) 108 L.Q.R. 79, at 89–92.

6 Ahmed F. and Perry A., “The Coherence of the Doctrine of Legitimate Expectations” [2014] C.L.J. 61, at 80–82.

7 R. v Port of London Authority, ex parte Kynoch Ltd. [1919] 1 K.B. 176 (CA) (“Kynoch”). There were forerunners to the modern flexibility rule, e.g. R. v Walsall Justices (1854) 24 L.T.O.S. 11.

8 Kynoch [1919] 1 K.B. 176 (CA), 181.

9 Ibid., at p. 184.

10 Ibid.

11 British Oxygen Co. v Minister of Technology [1971] A.C. 610 (HL) (“British Oxygen”).

12 Ibid., at p. 625.

13 Ibid.

14 Ibid.

15 The Judge Over Your Shoulder (Government Legal Department 2016), 35.

16 [1988] A.C. 407 (HL) (“Venables and Thompson”).

17 Venables and Thompson [1988] A.C. 407 (HL), 496–97.

18 [2000] 1 W.L.R. 977 (CA) (“North West Lancashire Health Authority”).

19 North West Lancashire Health Authority [2000] 1 W.L.R. 977, 991.

20 See e.g. Lavender & Son Ltd. v Minister of Housing and Local Government (1969) 1 W.L.R. 1231 (QB), 1240–41; In re Findlay [1985] A.C. 318, 336, per Lord Scarman; Secretary of State for the Home Department v R (S) [2007] EWCA Civ 546; [2007] INLR 450, at [50], per Lord Carnwath.

21 See e.g. de Smith S.A., Jowell J., Le Sueur A.P., Donnelly C.M. and Hare I., De Smith's Judicial Review, 7th ed. (London 2013), §9–004; Wade H.W.R. and Forsyth C.F., Administrative Law, 11th ed. (Oxford 2014), 271–72.

22 The content of the rule has, however, been clarified in several ways. For example, it is now settled that policies must be flexible in practice, not just in form: North West Lancashire Health Authority [2000] 1 W.L.R. 977, 993. For a discussion of the incentives for officials to evade this requirement, see Pottie L. and Sossin L., “Demystifying the Boundaries of Public Law: Policy, Discretion, and Social Welfare” (2005) 38 U.B.C.L.R. 147, at 154–55. There is some question whether Stringer v Minister of Housing and Local Government [1970] 1 W.L.R. 1281 (“Stringer”) marked a divergence between two ways of treating policies. See text at notes 24–26 below.

23 Galligan, “Nature and Functions”, pp. 348–50; Elliott M., Beatson, Matthews, and Elliott's Administrative Law, 4th ed. (Oxford 2011), 168ff.; Craig P., Administrative Law, 7th ed. (London 2012), §18–013.

24 Stringer [1970] 1 W.L.R. 1281.

25 Policies are meant to be based on the merits of actions. But, if a policy itself counted as a merit, then the policy would pull itself up by its own bootstraps. There is a similar concern with respect to plans, intentions and other sorts of commitments. See e.g. Bratman M., Intention, Plans, and Practical Reason (Cambridge, MA 1987), 24–7, 86–7; Verbeek B., “Rational Self-Commitment” in Peter F. and Bernhard-Schmidt H. (eds.), Rationality and Commitment (Oxford 2007), 160–62.

26 Commentators sometimes distinguish between policies (permissible) and rules (impermissible). See e.g. Galligan, “Nature and Functions”, pp. 350–52. But a rule is just a general norm, and so rules include policies, as recognised in British Oxygen [1971] A.C. 610, 625. The useful distinction is between rules that are strict and not strict. I discuss that distinction in A Perry, “Acceptance, Rules, and Reasons” (DPhil thesis, University of Oxford, 2012).

27 Warnock G., The Object of Morality (London 1971), 6465 .

28 Ibid., at p. 65. For similar examples, see e.g. Hart H.L.A. in Essays on Bentham (Oxford 1982), 158; Raz J., Practical Reason and Norms, 2nd ed. (Princeton 1990), 75.

29 Schauer F., Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and Life (Oxford 1991), 4.

30 Ibid., at p. 4.

31 There is a great deal of terminological disagreement about “rules of thumb”. Joseph Raz uses the term somewhat idiosyncratically to describe a type of (what I am calling) strict rule, which is distinguished by its justification as a time- or labour-saving device: Raz, Practical Reason and Norms, pp. 59–62. Others use the term to mean something like a reminder of a reason. See e.g. Goldman A., Practical Rules (Cambridge 2003), 1419 . My usage is largely consistent with Schauer's. He defends his choice in Playing by the Rules, p. 105, n. 36.

32 Schauer, Playing by the Rules, p. 108.

33 Ibid.

34 Costello K., “The Scope of the Rule against Fettering in Administrative Law” (2015) 131 L.Q.R. 354, at 354.

35 As far as I know, Sandiford has only been discussed in two short (but very helpful) notes: Costello, “The Scope of the Rule”; and Huntley B., “The Rule against Fettering in the Context of the Prerogative” [2015] J.R. 86. See also Knight C.J.S., “A Framework for Fettering” [2009] 14 J.R. 73, at 74–75.

36 Although the Foreign Secretary did consider aspects of Ms Sandiford's case: Sandiford [2014] UKSC 44; [2014] 1 W.L.R. 2697, at [67]–[73].

37 The power to make ex gratia payments is called a “prerogative power” in Sandiford by the Court. But it is actually both a non-statutory and non-prerogative power, i.e. what is sometimes called an “administrative power”. See R. (New London College) v Secretary of State for the Home Department [2013] UKSC 51, at [28], per Lord Sumption; Perry A., “The Crown's Administrative Powers” (2015) 131 L.Q.R. 652, at 658, 660. Nothing important turns on the distinction between prerogative and administrative powers for the purposes of this article.

38 Council of Civil Service Unions v Minister for the Civil Service [1985] 1 A.C. 374 (HL) (“CCSU”).

39 Lord Diplock was cautious in CCSU about whether exercises of non-statutory powers should be reviewable for reasonableness: CCSU [1985] 1 A.C. 374 (HL), 411. But there is no longer room for doubt, as Sandiford itself makes clear: Sandiford [2014] UKSC 44; [2014] 1 W.L.R. 2697, at [65].

40 See R. v Criminal Injuries Compensation Board, ex parte RJC (1978) 122 Sol. Jo. 95 (DC) (non-statutory compensation scheme); Re Dunn's Application for Judicial Review [2010] NIQB 54 (QB), at [14] (prerogative of mercy); R. v Chief Constable of the North Wales Police, ex parte Thorpe [1999] Q.B. 396 (CA), 410–11 (non-statutory power to disclose criminal convictions to the public). But in R. (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293; [2006] 1 W.L.R. 3213, the Court of Appeal held that the flexibility rule did not apply with respect to a non-statutory compensation scheme. Surprisingly, counsel in Sandiford did not raise RJC, Re Dunn or Thorpe.

41 Lord Sumption gave a separate opinion to similar effect. See especially Sandiford [2014] UKSC 44; [2014] 1 W.L.R. 2697, at [83].

42 Ibid., at para. [61].

43 Ibid., at para. [62].

44 Ibid.

45 A point accepted by all sides in the ultra vires debate: e.g. D. Oliver, “Is the Ultra Vires Rule the Basis of Judicial Review?” and Forsyth C., “Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review”, both in Forsyth C. (ed.), Judicial Review and the Constitution (Oxford 2000).

46 See e.g. Elliott M., The Constitutional Foundations of Judicial Review (Oxford 2001), 180.

47 I think this is what Lord Carnwath and Lord Mance have in mind in Sandiford [2014] UKSC 44; [2014] 1 W.L.R. 2697. They say it is a “necessary implication” of Parliament's conferral of a discretionary power that Parliament intends that power to be used “in different senses in different circumstances” (at [62]).

48 See e.g. R. (Nicholds) v Security Industry Authority [2007] 1 W.L.R. 2067 (QB), at [61]–[62]; R. (Thebo) v Entry Clearance Officer Islamabad [2013] EWHC 146 (Admin), at [31]. For discussion and older examples, see Bailey S.H., Cases, Materials, and Commentary on Administrative Law, 4th ed. (London 2005), 494–95.

49 Galligan, “Nature and Functions”, pp. 350–51.

50 Hilson, “Judicial Review”, pp. 112–14. These remarks are endorsed in Elliott, Administrative Law, p. 174.

51 De Smith et al., De Smith's Judicial Review, §9–005.

52 Plato, Statesman, trans. J.B. Skemp (Bristol 1952), paras. 294a–b. See also Schauer F., Profiles, Probabilities, and Stereotypes (Cambridge, MA 2003), 2829 .

53 Aristotle, Nicomachean Ethics, trans. Thomson J.A.K. (Harmondsworth 1977), para. 1137b.

54 Ibid., at paras. 1137a–b.

55 Error reduction is a traditional justification for rule-based or policy-based decision-making. See e.g. Mill J.S., System of Logic, Ratiocinative and Inductive (first published in 1843) (Whitefish, MT 2004), 617–18; Schneider C., “Discretion and Rules: A Lawyer's View” in Hawkins K. (ed.), The Uses of Discretion (Oxford 1992), 72; Baldwin R., Rules and Government (Oxford 1995), 1314 .

56 See e.g. Jowell J., Law and Bureaucracy (New York 1975), 1920 ; Schauer, Playing by the Rules, pp. 145–49; Schneider, “Discretion and Rules”, p. 77.

57 As Whitehead said, operations of thought are like cavalry charges in battle – they are strictly limited in number, they require fresh horses, and they must only be made at decisive moments”. Whitehead A.N., An Introduction to Mathematics (Oxford 1948), 42.

58 Merchandise Transport Ltd. v British Transport Commission [1962] 2 Q.B. 173 (CA), 193, per Devlin L.J. (a policy “makes for uniformity of treatment and it is helpful to the industry and to its advisers to know in a general way how particular classes of applications are likely to be treated”). Compliance with the rule of law is of value for a similar reason: see e.g. Raz J., “The Rule of Law and its Virtue” in Raz J., The Authority of Law (Oxford 1979), ch. 11.

59 Venables and Thompson [1988] A.C. 407, 497.

60 R. v Home Secretary [1994] 1 A.C. 531 (HL), 560, per Lord Mustill. There are certainly cases in which there is no right to make representations, such as cases involving emergencies (R. v Secretary of State for Transport, ex parte Pegasus Holdings (London) Ltd. [1988] 1 W.L.R. 990) and decisions to carry out a search (R. v Leicester Crown Court, ex parte Director of Public Prosecutions [1987] 1 W.L.R. 1371). But these cases are exceptions. As Wade and Forsyth say, “where the grant of a fair hearing is consistent with the exercise of a legal power, the law leans strongly in its favour” (Administrative Law, p. 421).

61 R. v Home Secretary [1994] 1 A.C. 531 (HL), 560, per Lord Mustill. Lord Mustill was speaking of cases that adversely affected some interest, but the same could now be said of benefit cases: see R. v Secretary of State for the Home Department, ex parte Fayed (No 1) [1998] 1 W.L.R. 763 (CA).

62 Auburn J., Moffett J. and Sharland A., Judicial Review (Oxford 2013), §6.04.

63 CCSU [1985] 1 A.C. 374, 411–12; Lewis v Attorney General of Jamaica [2001] 2 A.C. 50 (PC), 80.

64 Kynoch [1919] 1 K.B. 176 (CA), 184, emphasis added.

65 Ibid.

66 British Oxygen [1971] A.C. 610, 625, emphasis added.

67 Ibid.

68 E.g. R. v Secretary of State for the Environment, ex parte Brent L.B.C. [1982] Q.B. 593 (CA), 644, per Ackner L.J. (“Brent”).

69 There are some notable exceptions. Costello, in “The Scope of the Rule”, distinguishes between a “statutory duty” analysis of the flexibility rule and a “duty to act judicially” analysis, where the duty to act judicially includes a duty to provide a fair hearing (pp. 356–57). Sandiford endorsed the statutory duty analysis, while Costello thinks the rule is supported by both rationales. De Smith et al classify the flexibility rule as part of procedural fairness – but, as the authors note, their choice is an unusual one (De Smith's Judicial Review, §9–002).

70 For a recent overview of the intrinsic value of hearings (albeit in the criminal law context), see Meyerson D., “The Moral Justification for the Right to Make Full Answer and Defence” (2015) 35 O.J.L.S. 237.

71 [2013] UKSC 61; [2014] A.C. 1115, at [68] (“Osborn”).

72 Ibid., at para. [68]. The intrinsic value of a hearing is a consistent refrain in the case law, beginning with Cooper v Wandsworth Board of Works (1863) 14 C.B.N.S. 180, 195, per Byles J.

73 Waldron J., “How Law Protects Dignity” [2012] CL.J. 200, 210. See also Allan T., “Procedural Fairness and the Duty of Respect” (1998) 18 O.J.L.S. 497.

74 Galligan D., Due Process and Fair Procedures (Oxford 1996), 141.

75 Ibid., at p. 142.

76 Ibid., at p. 141.

77 Ibid.

* Associate Professor, University of Oxford; Garrick Fellow and Tutor, Brasenose College. For comments, I am very grateful to Nick Barber, Alison Young and two anonymous reviewers.

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