Wednesday, 4 July 2012

Changing Policy to Reflect Policy? Be Careful

As a Q.C., Rabinder Singh appeared in some of the most significant public law cases before the superior courts of England and Wales.

He was appointed to the bench in 2011. From the High Court, he recently issued an interesting judgment in H.A. (Nigeria) v. Home Secretary, [2012] EWHC 979 (Admin), a case concerning the lawfulness of the detention of an asylum seeker who suffered from mental disorders and was detained in a series of Immigration Removal Centres.

Of greatest interest is Singh J.'s treatment of an administrative policy which had been developed by the Home Secretary. The wording of the policy had been changed, but the Home Secretary argued that the change merely reflected administrative practice.

This was important because had the policy changed in substance, it would have been necessary to undertake an equality impact assessment; none had been conducted.

Singh J. held that a material change, requiring an assessment, had occurred, whatever the subjective intention of those involved:
  1. In my judgement there was a change in at least the stated policy. There was obviously a change of wording, in other words a reformulation of it. Even if the Defendant did not intend that to be a substantive change in her own policy, there are two reasons why the public sector equality duties were triggered by that reformulation. The first is that the meaning of a policy is an objective matter: whatever the subjective intentions of its authors, the formulation matters because the words which express a policy affect the public, not just officials within a department, for example individuals who are liable to detention and those who advise them. The reason why public law has in recent years come to recognise the importance of adherence (in general) to policy statements is that they serve an important function in maintaining the rule of law, which is of particular importance when fundamental rights such as the right to personal liberty are at stake. 

  1. The second reason is that, even on the Defendant's own evidence, she was seeking to reformulate the policy to re-align it to what had been thought within the department to be its practice all along. The courts had given an interpretation to the policy which did not accord with the practice of the Defendant's department. But that is implicitly to acknowledge that in fact there was a change of policy if not of practice. It was common ground before me that, in the present context at least, the meaning of a policy is ultimately a question for the courts, not one for the executive. If that is right, then when the words of a policy are altered, that is a change in policy. It was clearly intended to have some effect, otherwise it would have been a pointless exercise.
These comments on the interpretation of policies being wholly in the domain of the courts are very English (whenever I get around to my promised discussion of Auer deference, the difference of the American approach will be manifest). But the fundamental point is that when administrative policies change, the administrator in question is placed under a variety of public law duties, which are perilous to ignore.