Consistency as a free-standing principle of administrative law?

I have been taking a break from blog-writing — and, due to a period of ill-health, a complete break from work — over the last few months. I am now making a start on catching up on recent developments, including a number of important judicial decisions. I hope to write about some of those cases over the next few weeks, not least for my own benefit, and I begin today with the UK Supreme Court’s recent judgment in R (Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25.

The case arose against the background of an investigation by the Office of Fair Trading (‘OFT’) — which, by the time of these proceedings, had been replaced by the Competition and Markets Authority — into alleged price-fixing in the tobacco market. Several parties entered into ‘early resolution agreements’ with the OFT. Such agreements involved the parties admitting infractions of competition law in return for lighter penalties. In response to a query, one of the parties, TM Retail  (‘TMR’), was assured by the OFT that it would get the benefit of any other parties’ successful appeals if it did not itself appeal against the OFT’s decision holding that TMR had acted unlawfully. Subsequently, several parties didsuccessfully appeal — whereupon the OFT, although it did not revoke its decision as to the unlawfulness of TMR’s conduct, agreed to repay the financial penalty that had been imposed on TMR.

Good for TMR. But what of other parties — including the claimants in these proceedings — who (like TMR) did not appeal but who (unlike TMR) had not received any assurance from the OFT about benefitting from others’ successful appeals? In the absence of such an assurance, no legitimate expectation argument was straightforwardly open to the claimants. Nevertheless, they succeeded before the Court of Appeal ([2016] EWCA Civ 719), Lord Dyson MR, in his leading judgment, stating that the OFT’s refusal to treat the claimants in line with TMR offended the principle of equal treatment and was not objectively justified. However, neither the Court of Appeal’s conclusion nor the analysis of administrative law principle that prefigured it survived scrutiny before the Supreme Court on appeal. It held that the OFT’s unwillingness to treat the claimants in the same way as it had treated TMR was lawful. In doing so, the Court made some important, if sometimes contestable, points which bear upon fundamental matters of administrative law doctrine and its organisation.

‘Abuse of power’ and ‘conspicuous unfairness’

The leading judgment, which commanded the Justices’ universal assent, was given by Lord Carnwath. He devoted a significant portion of his judgment to a discussion of the role (if any) that is played in administrative law doctrine by such notions as ‘conspicuous unfairness’ and ‘abuse of power’. Lord Carnwath noted that such language is far from uncommon in this area, but concluded that it is unhelpful, or at least that its significance should not be overestimated. Indeed, he goes as far as to say that notions like ‘conspicuous unfairness’ and ‘abuse of power’ are not, and should not be regarded as, ‘free-standing principles of administrative law’. Instead, they are better understood as expressions whose judicial deployment merely serves to emphasise the ‘extreme’ nature of the impugned administrative conduct. He thus remarks that while ‘procedural unfairness is well-established and well-understood’ (as a ground of review in its own right), ‘[s]ubstantive unfairness’ — as connoted by terms such as ‘conspicuous unfairness’ and ‘abuse of power’ — ‘is not a distinct legal criterion’.

This element of Lord Carnwath’s analysis is to be welcomed. It has long seemed to me that language such as ‘conspicuous unfairness’ and ‘abuse of power’ is wheeled out by judges either as a form of linguistic ballast that seeks to provide unnecessary support to decisions that can already be justified by reference to established doctrine, or as a form of rhetorical scaffolding that seeks to prop up a judgment that rests on insupportably weak or inadequately developed doctrinal foundations. (For a prime example of the latter, see R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744, in which the doctrine of legitimate expectation was contorted so as to apply in spite of the claimant’s ignorance of the administrative policy upon which the expectation was purportedly founded, such contortions being judicially airbrushed through reliance on the notion that an ‘abuse of power’ had occurred.) Either way, the use of such concepts is to be deprecated, and the short shrift given to them in Gallaher is thus to be applauded.

Equality and consistency

That takes us to a further aspect of Lord Carnwath’s judgment. Having cleared the ground by sweeping aside the unhelpful rhetoric that has come to clutter this area of administrative law, he focuses on what he dubs ‘ordinary’ judicial review principles — the germane ones in this case being, he says, ‘irrationality and legitimate expectation’. ‘It is by reference to those principles,’ he goes on, ‘that cases such as the present must be judged.’ In contrast, Lord Carnwath says that ‘the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law’; he accepts that ‘consistency’ of treatment is a ‘generally desirable’ objective, but it is ‘not an absolute rule’. (It is worth noting in passing that in making this point Lord Carnwath appears to imply that true, or ‘distinct’, principles of administrative law are ‘absolute rule[s]’, and that a rule’s non-absolute nature precludes it from being such principle. In reality, however, that is simply not so.)

In seeking to characterise equality and consistency as having some other — and implicitly lesser — status than ‘ordinary’ (or, as he puts it elsewhere in his judgment, ‘free-standing’ or ‘distinct’) administrative law principles, Lord Carnwath is evidently influenced by the deep waters that he anticipates courts might have to navigate if they were fully to embrace equality or consistency as free-standing principles. Indeed, he cites separation-of-powers concerns raised in Matadeen v Pointu [1999] 1 AC 98, where Lord Hoffmann argued that the difficulties that might arise in seeking to determine whether an administratively proffered reason adequately justifies differential treatment might point away from regarding equal treatment as a ‘justiciable principle’ in the first place. Lord Carnwath thus concludes that the claimants in the present case could not rely upon any ‘general public law principle of equal treatment’, there being no such principle, in his view, to begin with. He does, however, accept that the claimants might have derived a legitimate expectation of such treatment from their dealings with the OFT, but holds that any such expectation had not been unlawfully breached because any differential treatment accorded to the claimants was justified given that, unlike TMR, they had neither received nor relied upon any relevant assurance.

The conclusion that the OFT acted lawfully in these circumstances is hardly an outlandish one, and its correctness is arguably bolstered if — as Lords Sumption and Briggs thought in their short concurring judgments — the assurance given to TMR is regarded as ‘mistaken’ in the sense being inconsistent with OFT policy. However, the analysis found in Lord Carnwath’s leading judgment is not without difficulty. For one thing, having endorsed Lord Hoffmann’s view in Matadeen v Pointu that equal treatment should be resisted as a general, justiciable principle on account of its capacity to raise non-justiciable questions about what should count as justification for differential treatment, Lord Carnwath confidently concludes that such treatment of the claimants is ‘objectively justified’. The obvious point thus arises that while a general principle of consistency or equal treatment may raise questions that take judges to or beyond the limits of their adjudicative competence, they will not always do so. And that, in turn, suggests that the justiciability objection is far from a knock-out argument against ever treating consistency or equal treatment as (to use Lord Carnwath’s terminology) free-standing or direct principles of judicial review. There are, moreover, now well-developed principles that have been developed in other contexts — most notably, human rights — that enable judicial restraint to be practised, where appropriate, in a systematic manner. There is no reason why such principles of restraint might not be applied, with suitable adaptation, in the present context too.

Too much, too little or just right?

A further objection raised in Gallaher to acknowledging consistency or equality as principles of administrative law is particularly brought out in Lord Sumption’s concurring judgment. Endorsing Lord Carnwath’s analysis, Lord Sumption said that: ‘In public law, as in most other areas of law, it is important not unnecessarily to multiply categories. It tends to undermine the coherence of the law by generating a mass of disparate special rules distinct from those applying in public law generally or those which apply to neighbouring categories.’ Lord Sumption thus concluded that while there is (as he had earlier acknowledged in R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6) a ‘common law principle of equality’, it is ‘usually no more than a particular application of the ordinary requirement of rationality imposed on public authorities’.

Thus neither Lord Carnwath nor Lord Sumption is opposed to acknowledging the importance of consistency or equality to good administrative decision-making; but neither is prepared to embrace such values as free-standing administrative law principles. Instead, both exhibit a clear preference in favour of relatively few, general principles, such as rationality, with the corresponding relegation of such matters as equality and consistency to some other, implicitly lesser status. They may be relevant to the application of judicial review principles proper — that is, grounds of review — but they are not themselves such principles. On this analysis, an administrative decision in relation to individual X that is inconsistent with the decision-maker’s own, usually applied policy, or with its normal practice as visited upon individuals A–W, is suspect and requires justification, the question for the reviewing court being whether the proffered justification, if any, is adequate, the question of adequacy being approached through the prism afforded by the rationality test.

Lord Sumption’s point that one should avoid the unnecessary multiplication of legal categories is well taken. But the question remains of whether relying so heavily on such amorphous concepts as rationality risks conceiving of administrative law doctrine at too high a level of abstraction. Indeed, precisely such a risk was graphically illustrated by Lord Carnwath himself in his 2013 lecture to the Constitutional and Administrative Law Bar Association. In the course of dismissing what might be regarded as attempts, such as the ‘anxious scrutiny’ doctrine, to invest the rationality principle with more nuanced meaning, Lord Carnwath praised

the characteristically pragmatic approach suggested by Lord Donaldson in [R v Take-over Panel, ex parte Guinness plc [1990] 1 QB 146], by way of a rider to what Lord Diplock had said in [GCHQ]: ‘the ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the court and, if so, what form that intervention should take’. If the answer appears to be yes, then one looks for a legal hook to hang it on. And if there is none suitable, one may need to adapt one … Generally we [judges] should look to the academics to do the theorising, and to put our efforts into a wider context. That way, we can decide the cases, and then they can tell us what we really meant, so that we can make it sound better next time.

The obvious danger is that, viewed thus, the law of substantive judicial review becomes little more than a device for conferring a thin veneer of respectability upon a form of gut-instinct adjudication. And, crucially, the greater the weight placed on highly malleable concepts such as rationality, the greater the opportunity for judges to lapse into this form of instinctive approach. Lord Sumption’s concern about too much doctrine — too many grounds of review — must thus be balanced with a countervailing concern about too little doctrine. Like Goldilocks’s porridge, which she wanted neither too hot nor too cold, administrative law needs to be conceived of and applied by courts at a level of abstraction that is ‘just right’. The question then arises whether Lord Sumption’s ‘multiplication’ objection is a convincing one, or whether a more persuasive, positive case can be made for recognising consistency or equality as a ground of review in its own right: that is, as a free-standing doctrine rather than a mere consideration that might feed into the application of some (other) ground of review, such as rationality.

Rationality, proportionality and underlying normative values

If we are to consider that question satisfactorily, we need first to reflect upon the nature and function of the rationality principle — and (what I have argued elsewhere is) its close relative, the proportionality principle. Collectively, those grounds of review are the workhorses of substantive judicial review, and give the modern so-called ‘culture of justification’ its practical edge. The essence of the culture of justification is that when a decision raises a red flag, it needs to be justified — and what passes as an adequate justification will depend on both the burden of justification under which the decision-maker is placed (here, the choice between rationality and proportionality is relevant, one imposing a heavier burden that the other) and the extent of any deference accorded by the court in its assessment of the proffered justification. Understood thus, administrative law principles such as rationality and proportionality are best thought of as mechanisms that are brought to bear in order to ensure due respect for underlying normative values.

Take, for instance, the doctrine of substantive legitimate expectation. No-one today would question the view that there exists such a doctrine in English administrative law. Indeed, in his judgment in Gallaher, Lord Carnwath points to legitimate expectation, along with rationality, as one of the ‘distinct’, ‘ordinary’ administrative law principles that form the doctrinal basis on which he considers the case should be decided. But the doctrine of substantive legitimate expectation does not sit in isolation from the principles of rationality and proportionality. Far from it. The latter play a central part in determining whether an administrative act that frustrates a substantive legitimate expectation — once such an expectation has been established — is lawful or unlawful. The true position, then, is that the legitimate expectation, rationality and proportionality form an interlocking suite of administrative law principles that operate together. It is in this way, the normative values — most obviously, legal certainty — that underpin the legitimate expectation doctrine find concrete legal expression and practical protection.

In the light of this, it is noteworthy that Lord Carnwath raises no objection to the notion that legitimate expectation is a principle of administrative law in its own right, the fact that it does not exist independently of the rationality and proportionality principles apparently being no bar to its enjoying such a status. An alternative, of course, would be to conceive of all that we currently think of in terms of legitimate expectation as nothing more than particular applications of the rationality or proportionality doctrines. But that would be far from satisfactory, not least because, how imperfect it may be, the ‘doctrine’ of legitimate expectation supplies a framework of principle that allows the courts to approach a set of issues — most obviously about the circumstances in which, to begin with, a legitimate expectation may arise — that are logically prior to questions about the adequacy of any justification offered in support of the expectation’s frustration.

Consistency as a free-standing principle?

Against this background, it might reasonably be asked whether what is good for the principle of legal certainty, as vouchsafed by the legitimate expectation doctrine, might not be equally good for the value of consistent decision-making — a value whose normative worth is amply attested to by numerous judicial decisions (including the Rashid case, mentioned above, in which the court was so determined to uphold a principle of consistency that it distorted the legitimate expectation doctrine in doing so). It is all very well saying, as it is said in Gallaher, that a value such as consistent treatment can be adequately protected by treating inconsistency as prima facie evidence of irrationality such that the decision-maker must then establish rationality through the provision of adequate justification. But why not go one stage further, and recognise consistency as a ground of review in its own right? That question might seem unimportant: if consistency can be upheld by applying the rationality principle, then it may appear that whether consistency should be treated as a ‘ground of review’ or an ‘administrative law principle’ in its own right is the concern only of the taxonomical anorak. For three reasons, however, that is not so.

First, recognising consistency as a free-standing principle would be fitting recognition of its normative importance. Indeed, precisely this view appeared to be taken by Lord Wilson in Mandalia v Secretary of State for the Home Department [2015] UKSC 59, in which he referred to ‘a principle, no doubt related to the doctrine of legitimate expectation but free-standing’, according to which (as Laws LJ put it in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363) ‘public bodies ought to deal straightforwardly and consistentlywith the public’. Second, acknowledging consistency as a free-standing ground of review would enable a suitable doctrinal superstructure to develop around it, as occurred with legitimate expectation. This would enable courts to approach relevant questions — about, for instance, the circumstances in which a policy or practice should, in the first place, be regarded as sufficiently clear and settled as to render deviations from it prima facie‘inconsistent’ — more systemically and predictably, and would aid the necessary disaggregation of legitimate expectation and consistency cases.

Third, and finally, the weight placed in Gallaher on rationality per se as a ground of review is dubious, bearing in mind the danger of its lackadaisical judicial application. That is not an argument in favour of what Lord Sumption in Gallaher called the ‘unnecessarily multiplication of categories’. But it is an argument in favour of according proper doctrinal recognition to a value such as consistent decision-making which the higher courts have in recent years been at pains to single out as vital to good administration. It follows that the Supreme Court’s reticence when it comes to recognising it as an administrative law principle in its own right is a retrograde and unfortunate step — not least because of the risks inherent in leaving values like consistency lurking within the folds of what Jowell and Lester famously, and with justification, referred to as ‘Wednesbury’s ample cloak’.

I am grateful to Tom Fairclough, Alison Young and Jack Williams for their very helpful comments on an earlier draft of this post. The usual disclaimer applies. The image that accompanies this post is reproduced under a Creative Commons CC0 1.0 Universal Licence.