Administrative law principles – consistently consistent
A recent Supreme Court case involving the Competition and Markets Authority raises some important considerations for local government lawyers around council decision-making, writes Dr David Sykes.
"It’s not fair" said the young footballer as the referee did not award him a free kick, for what he considered a foul. His father on the touchline agreed and shouted "this ref’s decisions are not consistent - just now he gave a penalty for a fair tackle and not a foul". We have all heard such comments, whether in the context of a sporting event or in a work situation or just life in general. It is easy to envisage other scenarios and relationships, where notions of ‘fairness' rear their head. Private and public law are no different. I suppose what we mean in terms of consistency is that we should be treated in the same way as others and that decision-makers must apply the same standards or the same approach. It is indisputable that many decisions in local government involve complex issues, often of a polycentric nature. It is in such situations that the decision-making process and final outcome come under extreme scrutiny.
Whilst the precise nature of fairness remains a matter of much philosophical debate, especially amongst the community of political philosophers, there is a basic level at which most of us would be able to recognise unfairness when we see it, albeit that simply put: unfairness is easier to recognise than fairness itself.
Some may comment that local authorities are not concerned with issues of fairness and that their task is to obey their statutory power source, making sure that all their decisions conform to a legality standard. Several councils have, however, recognised the need for fairness in their decision making by establishing fairness commissioners, as a way to taking a broad and alternative view of many urgent and pressing social problems. For example, the first Fairness Commission was set up by Islington Council in 2010, drawing upon the work of Richard Wilkinson. [1] Further, in November 2012 at the instigation of its then mayor, Lutfur Rahman, a similar Fairness Commission was set up in the London Borough of Tower Hamlets.
The purpose of this article is to concentrate on administrative law values [2] in the context of local authorities’ decision making and examine the importance of notions of ‘fairness’ and ‘consistency’. This analysis will be aided by judicial statements in the Supreme Court’s decision in Gallaher Group Ltd and others v The Competition and Markets Authority [2018] UKSC 25, [3] particularly remarks of Lord Carnwath and Lord Sumption. This case may have gone under the radar as far as local government lawyers are concerned, because it is not a judicial review case involving a local authority, but rather the decision-making activity of the Competition and Marketing Authority (CMA) as successor to the Office of Fair Trading (OFT).
There is no doubt that like private law, public law is concerned with ensuring that when making decisions certain primary tenets are observed. It does no harm to remind ourselves as local government lawyers that those principles, include:
- Legality
- Fairness
- Participation
- Accountability
- Consistency
- Rationality
- Proportionality and
- Impartiality
Each of these players in the administrative law system in the UK has their own focus. Sometimes those principles overlap. My concern here is with principles b), e) and f).
Gallaher - facts and decisions
Factual background
The respondents were the Gallagher Group Ltd, a UK-based multinational tobacco company, and Somerfield, a tobacco retailer. In June 2008 they entered into what is known as an early resolution agreement (ERA) with the OFT. Such an arrangement meant that the parties admitted their infringement and would cooperate in the investigation to be carried out by the OFT in exchange for substantial reductions in any anticipated penalties. The investigation was carried out by the OFT under the Competition Act 1998 and related to alleged price fixing in the tobacco industry. The ERA process was not subject to statutory rules and nor was it at the time described in any of the OFT’s publications. However, an OFT internal directive did emphasise that "fairness, transparency and consistency" was integral to achieving an effective settlement process, and further a speaking note for use in discussion with parties. [4] Parties to an ERA could appeal to the Competition Appeal Tribunal (CAT), but this left it exposed to an increased penalty.
Another party T M Retail (TMR) had also entered into an ERA with the OFT, but asked, whether if they did not appeal would they still be able to get the benefit of a successful appeal by any other party involved in the investigation. The OFT gave such an oral assurance to TMR, but not Gallaher or Somerfield. The assurance was that a successful appeal by other parties on liability "would result in no findings against [TMR]" and that in the event of a successful appeal on penalty, "then OFT would apply any reduction to TMR". The OFT made findings against 12 parties, including the respondents, who did not appeal: nor did TMR. Reduced penalties were paid to the OFT as agreed in the ERA. Six of the parties did however appeal which were successful. Thus TMR held the OFT to their assurances and received repayment of the penalty they had paid together with accrued interest thereon.
The OFT published details of their settlement with TMR and the respondents feeling aggrieved tried to appeal to the CAT out of time, but were refused. They were not happy with the treatment they had received and made a judicial review challenge.
Decisions
The CMA was successful at first instance before Collins J, [5] but on appeal the Court of Appeal took a different view. Lord Dyson MR stated: "In all the circumstances, this was a plain breach of the principle of equal treatment and unfair." The Court of Appeal’s order declared that the OFT had acted unlawfully by:
- Not offering the appellants in 2008 the assurance given to [TMR] that in the event of a successful appeal by other parties, it would benefit from that appeal decision even if it did not appeal; and
- Refusing in 2012 to make payment to the appellants of the amount of the penalty imposed on them even though it had made such a payment to TMR [6]
The Supreme Court, [7] however, unanimously reversed the decision and held that a mistake made to the benefit of one party in a settlement negotiation is not required to be replicated for the benefit of other similarly involved parties, on the basis of traditional principles of public law rationality. Lord Briggs stated: "…the OFT’s decision to honour the assurance given to TMR, but not to replicate it in favour of the respondents, was both objectively justified and a rational response to the predicament which it faced." [8] A critical boundary of unfairness had not been traversed.
It is instructive, however to look at the judgments of Lords Carnwath and Sumption, who address issues of fairness and consistency in decision making in the public realm.
Fairness
Judgment of Lord Carnwath
In matters of public law Lord Carnwath has always displayed a practical approach and his judgment in Gallaher is no exception to this approach. He focuses on a number of relevant issues, including justiciability, fairness and the values of consistency in decision making. He faced head on whether concepts, such as fairness can be directly translatable into a justiciable rule of law. He states: [9]
‘Fairness, like equal treatment, can readily be seen as a fundamental principle of democratic society; but not necessarily one directly translatable into a justiciable rule of law.’ (my emphasis) [10]
Lord Carnwath distinguished between equal treatment as a democratic principle and as a justiciable rule of law. He quoted Lord Hoffman in Matadeen v Pointu [11] where his Lordship stated:
"Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution." [12]
Lord Carnwath was also concerned at the proliferation of phrases such as "conspicuous unfairness" and "abuse of power" and questions their value. He spent time "tidying up" the language used to articulate the grounds in Gallaher. Stephen Daly and Joe Tomlinson in a useful article commenting on Gallaher state:
‘The implication here is that cases should no longer be argued solely in the language of power or inconspicuous unfairness, but rather must be anchored to an established ground of review, such as rationality or legitimate expectation’ (my emphasis) [13]
Some might argue that legitimate expectation, whether of a procedural or substantive nature has not yet reached a status of a separate head of judicial review.
Judgment of Lord Sumption
Lord Sumption agreed with Lord Carnwath regarding over emphasising the grounds of judicial review and stated:
"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 to public law generally, or those which apply to neighbouring categories."" [14]
I argue that language is important in administrative law, especially in framing and presenting an argument for the purposes of a judicial review challenge. I agree, therefore, with Dr Paul Daly when he states: "Language plays a useful descriptive role in administrative law, setting out a landscape that can be comfortably viewed and usefully discussed from 20,000 feet." [15] A question for another time may be whether contemporary language used in judicial review is in an unruly mess.
Consistency
At the outset let us record that the position in our domestic law is different from the position in European Law. Lord Carnwath stated: "Whatever the position in European law, or under other constitutions or jurisdictions, the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law. The principle of equal treatment in European Union Law can be illustrated by reference to the Case of Kone OYJ and others v European Commission (Elevators and Escalators Cartel Appeal) [16] where it is stated that: "The Principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is objectively justified."
Judgment of Lord Carnwath
His Lordship spoke about the value of consistency and principles of equal treatment in decision making, although he did not consider it a free-standing principle of administrative law, but a claim derived from existing grounds, such as rationality. He stated:
"Whatever the position in European Law or other constitutional or jurisdictions, the domestic law of this country does not recognise equal treatment, as a distinct principle of administrative law."
Consistency, as Lord Bingham said in R (O’Brien) v Independent Assessor [2007] 2 AC 312, is a generally desirable objective, but not an absolute rule. [17] .
Lord Carnwath cited other case law containing apt judicial statements, such as R (Middlebrook Mushrooms Limited) v Agricultural Wages Board of England and Wales. That case concerned the wages rates of agricultural works, specifically mushroom pickers, where Stanley Burnton J held that there was no lawful justification for the exclusion of mushroom pickers from the lower rate. He cited inter alia Lord Donaldson’s reference to the "cardinal principle of public administration that all persons in a similar position should be treated similarly." [18] Lord Carnwath treated this and other cases within a category of "Wednesbury unreasonable and unlawful, or in other words irrational". [19] Consistency is therefore once again linked with notions of rationality.
Judgment of Lord Sumption
His Lordship stated: "Consistency of treatment is, as Lord Hoffman observed in Matedeen v Pointu [1999] 1 AC 98, at para 9 ‘a general axiom of rational behaviour." [20] He further importantly states: "The common law principle of equality is usually no more than a particular application of the ordinary requirement of rationality imposed on public authorities." [21]
Argument for and against the value of consistency
I argue that certainty of decisions in local government is a necessary condition for local democratic institutions to achieve their objectives and goals, whatever they may be. Consistency plays a key role as a driver of trust in organisations, such as local authorities in their relationship with their service users. There is little argument that consistency is very important in many areas of local government and is a proper domain for administrative decision-makers. For example, in planning decisions it is a key principle. [22] The importance of consistency was explained by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment [23] where he states: "One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency [..] Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system." In a recent case involving the Forest of Dean District Council Singh J stated: "Although the authorities demonstrate that a local planning authority is not bound by its earlier decision, nevertheless it is required to have regard to the importance of consistency in decision-making." [24] Further, John Howell QC (sitting as Deputy High Court judge) in Baroness Cumberlege v Secretary of State for Communities & Local Government [25] stated: "There is a public interest in securing reasonable consistency in the exercise of administrative discretions that may mean that it is unreasonable for a decision maker not to take into account other decisions that may bear in some respects on the decision to be made." [26] Thus, consistency in development control decision-making is therefore essential.
Lord Carnwath undoubtedly saw the desirability of consistent decision making, but that this must be balanced by an approach of not slavishly applying a set of pre-determined dicta or criteria check lists under a policy which may lead to inconsistency and therefore unfairness. In my view the preferable approach is to have a mechanism in place which allow for like cases to be treated alike, [27] but at the same time a safety valve mechanism in place (where appropriate) so that allows the norm not to be applied in individual circumstances, that otherwise may lead to individual injustice. The principle that ‘like cases should be treated alike’ has its corollary that cases that are different should not be treated alike. Consistency of decision is desirable only in cases that are materially similar. Sir Stanley Burton in a 2012 case stated: "Consistency of decision is desirable, but is not necessarily and end in itself." [28]
Should consistency be a separate ground for judicial review?
In reviewing Gallaher Professor Mark Elliott published an excellent blog wherein he discussed several important aspects of that case, including what is the rightful place of principles of consistency in decision making. He advocates the normative value of consistent treatment. I agree with him when he says that the question is not one simply for the taxonomical anorak. He advocates recognising consistency as a free-standing principle, that would "enable a suitable doctrinal superstructure to develop around it, as occurred with legitimate expectation".
I understand the approach of Professor Elliott that there could be significant benefits to a specific ground of review for inconsistency, both in terms of good administration and achieving individual justice outcomes. However, for a number of reasons that centre on the conflict between good administration and individual justice I do not advocate that inconsistency be recognised as a separate ground of judicial review in its own right.
I come to this conclusion for a number of reasons. Firstly, one of the major hurdles of proposing a separate ground of review for inconsistency is a definitional one - how do you define such a ground? Secondly, another understandable perception is that it would hamper executive policy makers in being flexible and responsive in their policy processes. Thirdly, any ground of a substantive review nature will herald a chorus that it is not the place of the judiciary to make decisions thereby usurping the rightful constitutional place of the executive. A cry we have heard in connection with supporting substantive legitimate expectation as a ground of judicial review. It is accepted however, that accepting inconsistency as a separate ground of review would entail not only review of the decision itself, but also the policy process itself. Certainly, any approach must be better than inconsistency concerns drowning under the high threshold test of Wednesbury unreasonableness for unjustified unequal treatment that already exists.
Whatever view is taken, I countenance that any proposal to add a ground of review for inconsistency should be approached with caution. Thus, I concur with the approach of their Lordships Carnwath and Sumption that it is better to regard concerns over inconsistency, as a part, albeit a central part of an assessment whether the decision-maker has exercised rationality, whether in their initial policy formation, changes thereof or in ultimate outcomes. I also feel that my view is supported by Lord Dyson the Supreme Court case in 2012 of R (Lumba) v Secretary of State for the Home Department [29] where he stated: "The principle that policy must be consistently applied is not in doubt." [30] In Lumba, a majority of the Supreme Court found that there was a duty to apply policies consistently, arising from the principles of equality, non-discrimination and lack of arbitrariness. The facts of the case briefly were that two foreign nationals had been detained prior to deportation. At issue was whether an unpublished policy imposing a ‘blanket’ ban on the release of foreign nationals who had been sentenced for a wide range of offences, could be applied when it was in direct contrast with published policies stating that there was a presumption in favour of release of such persons, prior to their deportation. The Supreme Court found that it could not and that the ‘near blanket’ policy was unlawful for the fetter on discretion that it imposed. This decision raises a number of potential conflicts between a potential duty of consistent decision making and the duty to exercise unfettered discretion by the decision making body. It also raises issues on the developing use and power of ‘soft’ law [31] measures, but this is outside the scope of this article, suffice to say that I agree with Professor Lorne Sossin [32] who has suggested that judicial scrutiny of soft law decisions, may also improve bureaucratic decision-making by shifting a spotlight on a corner of bureaucratic processes which too often are left in the shadows.
Does Wednesbury unreasonableness assist?
The notion of ‘inconsistency’ already has a limited role in judicial review. For example, where a policy is applied inconsistent with statute or precludes a decision-maker from taking into account a relevant consideration may all accommodate elements of inconsistent decisions. [33]
It is true that elements of inconsistent treatment have been dealt with if it can be characterised under the major judicial review ground of Wednesbury unreasonableness, particularly in relation to unjustified, unequal treatment and inconsistency resulting in disappointment of a legitimate expectation. [34]
A model of normative values
Administrative law is based on a set of normal values. Gallaher raises questions of the order of priority of those commonly used normative values. It is in my view fundamental to understand that normative values do not exist in limbo; they are part of an integral whole. For example, the values of rationality and proportionality are clearly close relatives - in any one decision they may overlap with another value or one value being given greater weight than the other. I agree with Professor Mark Elliott when he refers to such grounds of review collectively as the workhorses of substantive review. He states: "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."
Why is this case important to local government lawyers?
Whilst not a direct local government case on law and practice, nevertheless it does deal with a number of issues that arise in judicial review challenges. For example, it brings into the forum of discussion, how important a case review must show application of consistency, say by the local authority housing benefit officer. The lawyer dealing with the matter will be looking for elements of consistency in application of the policy under review and whether there was scope for unlike cases to be catered for. Local government lawyers will also have noted that values such as consistency and fairness are now considered as part of the other major grounds of review, such as rationality, proportionality, Wednesbury reasonableness and legality. Important as values of consistency in decision making are, it is still not a stand-alone ground. What is being examined is whether inconsistency is present and, if so, whether it indicates arbitrariness in the ultimate decision thus invalidating it. Consistency is par excellence an ambiguous - or at least morally neutral-norm. [35]
Conclusion
Where does all this valuable judicial dicta and academic comment take us? Gallaher and the judicial comments it contains is of undoubted value to the local government lawyer in local authorities in England and Wales dealing with judicial review challenges and in general what preventative advice can be given to their client departments. Gallaher provides markers on the importance of values such as, fairness and consistency and how they rank amongst the established grounds of judicial review, such as legality, Wednesbury reasonableness, rationality and proportionality. As Professor Elliott states: "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." [36] The problem is, how do we define rationality enabling it to be a justiciable concept? What is clear is that such traditional grounds of review should not be seen as in isolation of one another: nor with complexity of modern administrative decision making should competing factors, such as budgetary limitations and notions of what is in the ‘public interest’ be far away. I am therefore counselling a detailed decision audit trail. It is therefore paramount that local government decision makers factor into their decision-making process and potential outcomes consideration of such administrative values, especially when at the end of the day they may be required to give adequate justification for their decision: either to their local service users, or judicial challenge or ultimately in the local government elections to their electorate. It is only in this approach that the cries of unfairness and inconsistency may be met.
Dr David Sykes is a former local government solicitor.
[1] See Professor Richard Wilkinson and Professor Kate Pickett, ‘The Spirit Level: Why Equality is Better for Everyone’ Penguin 2010
[2] See ‘Administrative Law Values and Cultural Change’, commentary by Mark A Robinson on a Paper delivered by Professor John MacMillan, commonwealth ombudsman at an AIAL NSW chapter seminar in Sydney on 24th July 2008
[3] Gallaher Group Ltd and others v The Competition and Markets Authority [2018] UKSC 25
[4] See Melanie Carter and Clare Whittle, ‘A General Axiom of rational behaviour’, The Law Society Gazette 2nd July 2018 which more fully records the factual background.
[5] [2015] EWHC 84 (Admin)
[6] Gallaher supra 2 Lord Carnwath @ para 18
[7] Composition-Lords Mance, Deputy President, Lords Sumption, Carnwath, Hodge and Briggs
[8] Gallaher supra 2 Lord Briggs @ para 58
[9] Gallaher supra 2 Lord Carnwath @Para 31
[10] See Dr D Sykes, ‘Equity’s Roving Commission in Administrative Law’, PhD Essex 2017 where issues of fairness and translation of equitable principles between equity and public law are analysed.
[11] [1999] AC 98
[12] Ibid para 9
See also Professor Jeffrey Jowell QC, Is Equality a Constitutional Principle? (1994) 7 CLP, 12-14 and De Smith, Woolf and Jowell,’ Judicial Review of Administrative Action’, 8th ed (2018) , paras 11-061ff
[13] ‘Administrative Inconsistency in the Courts’
[14] Gallagher supra 2 Lord Sumption @ Para 50
[15] ‘The Language of Administrative Law’, (2016) 94 Canadian Bar Review 519
[16] Case C-510/11 [2014] 4 CMLR, para 97
[17] Gallaher supra 2, Lord Carnwath @ para 24
[18] See R (Cheung) v Hertfordshire County Council, The Times 4th April 1986, para 74
[19] Gallaher supra 2, Lord Carnwath @ para 28
[20] Gallaher supra 2, Lord Sumption @ para 50
[21] ibid
[22] See Amy Truman, Senior Associate DLA Piper ‘The importance of consistency in planning decisions’ where she refers to several planning cases that highlight the fact that developers need to be aware of past decisions.
[23] [1993] 65 P & CR 137
[24] R (Midcounties Co-operative Limited) v Forest of Dean District Council [2017] EWHC 2050 per Singh J @ para 107
[25] [2017] EWHC 2057
[26] Ibid, Howell QC @ para 100
[27] See D Strauss, ‘Must Like Cases be Treated Alike?’ Public Law Research, Paper No ;24 University of Chicago, May 2002
[28] SG (Iraq v Secretary of State for the Home Department [2012] EWCR Civ 940 @ para 57
[29] [2012] 2 1AC 245
[30] Ibid per Lord Dyson @ para 26
[31] By ‘soft’ law is meant……………………………………………..
[32] ‘The Politics of Soft Law: How Judicial Decisions influence Bureaucratic Decisions in Canada’, in Marc Hertogh, Simon Hertogh and Simon Halliday (eds)
[33] See Emily Johnson ‘Should ‘Inconsistency’ of Administrative Decisions Give Rise to Judicial review?, AIAL Forum No;72
[34] Considerations of procedural and substantive legitimate expectation are outside the scope of this article.
[35] See Hugo Story, ‘Consistency in Refugee Decision-Making: A judicial Perspective’, Refugee Survey Quarterly, Volume 32.Issue 4. 1st December 2013, pages 112-125
[36] See Professor Mark Elliott, ‘Consistency as a free-standing principle of administrative law’? ‘Public Law for Everyone', Blog 15th June 2018
