Fettering the Prerogative: Form and Substance

R. (Sandiford) v. Foreign and Commonwealth Secretary, [2013] EWCA Civ 581 is a fascinating case.  A British citizen has been accused by the Indonesian authorities of drug trafficking, an offence which carries the death penalty in that jurisdiction. She wants the British government to fund her defence. Her arguments -- which were rejected by the Court of Appeal -- are admirably summarized over at the excellent UK Human Rights Blog. The one that caught my eye relates to the prerogative.

Pursuant to the prerogative, the respondent has developed a policy, outlined in a pamphlet entitled Support for British Nationals Abroad: a Guide. It contains the following passage:

"Although we cannot give legal advice, start legal proceedings, or investigate a crime, we can offer basic information about the local legal system, including whether a legal aid scheme is available. We can give you a list of local interpreters and local lawyers if you want, although we cannot pay for either. "

In line with the published policy, the respondent refused to defray the applicant's legal expenses.

The question for the Court of Appeal was whether the published policy fettered the discretion of the minister. Lord Dyson MR concluded that, in matters prerogative, the rule against fettering discretion does not apply:

1. It is clearly established that a public body may not unlawfully fetter the exercise of a discretionary statutory power: see, for example, British Oxygen Co Ltd v Board of Trade [1971] AC 610. But where a policy is made in the exercise of prerogative or common law powers (rather than a statutory discretion), there is no rule of law which requires the decision-maker to consider the facts of every case with a view to deciding whether, exceptionally, to depart from the policy in a particular case. This is because "it is within the power of the decision-maker to decide on the extent to which the power is to be exercised in, for example, setting up a scheme. He can decide on broad and clear criteria and either that there are no exceptions to the criteria in the scheme or, if there are exceptions in the scheme, what they should be": R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213 at para 191.


2. In the present case, as in Elias (see para 192), the Secretary of State has decided that it is necessary to formulate "bright line" criteria for determining who is entitled to receive payments from public funds. The "bright line" in the present case is the rule that the Government does not pay legal expenses of British nationals involved in any criminal proceedings abroad. I accept the submission of Mr Chamberlain that there is no requirement as a matter of law to consider whether an exception should be made to the policy in the circumstances of an individual case. As in Elias, there is no objection in principle to the idea of a policy without exceptions. That is why I understand Mr O'Neill to accept that the only question for the court is whether the decision to have a blanket policy not to fund legal representation in criminal proceedings abroad is rational.

Does this distinction between statutory discretion and prerogative make sense? The distinction is formal and it is underpinned by logic: largesse under the prerogative is entirely in the gift of the executive, something which cannot be said of largesse provided for by statute. In the latter case, the executive cannot ignore its statutory duty. In the former case, the executive is not so constrained.

But in substance, there is less to commend the distinction. Given that the executive has chosen to invoke the prerogative and thereby affect individuals' legal positions, there is something to be said for imposing constraints on its exercise. A positive action invites scrutiny in a way that a failure to act does not. Indeed, the constraint of rationality applies (though the applicant lost on this point - see paras. 55-60).

An additional possible constraint would be a prohibition on enacting a blanket policy. For the same considerations that underpin the rule against fettering discretion in the context of a statutory power apply here with equal force: from a fairness perspective, it is unfair to completely shut the door to individual circumstances; and from the point of view of good administration, submissions from individuals might highlight flaws in the policy. And doubtless, the individuals on the receiving (or non-receiving) end of the largesse could care less about its legal provenance. Here, the Court of Appeal's focus on form led it to overlook substance.

It seems to me that the distinction operates particularly unfairly in a case like Sandiford. Deciding to set out a blanket policy which, say, gives everyone the same amount of money or subjects everyone to the same criteria is quite different from deciding to set out a policy of blanket refusal. Not taking account of individual circumstances seems especially likely to lead to unfairness and poor administration in the latter case. In the former case, the executive can at least claim that everyone is better off.

Mind you, there would have been good reasons to deny any claim from the applicant, even after hearing her (doubtless harrowing) tale:

1. The rationale for this policy is explained by Ms Proudlove. In summary, she says that any policy of paying legal expenses in individual cases would encounter serious practical difficulties. First, how could the Secretary of State rationally stop at death penalty cases? What about other cases where there is a risk of the imposition of penalties which, if carried out in a Contracting State, would violate article 3 of the Convention (for example 40 years' imprisonment in appallingly degrading conditions)? Secondly, why limit payment for representation on appeal? Would it not be more rational to seek to ensure that the sentence is not imposed in the first place, by funding representation at the trial? But this would open up the possible exposure to open-ended financial liability of legal fees at trial. Thirdly, if the Secretary of State were required to fund legal representation, it is difficult to see how it could do so without itself having some assurance about the adequacy of the local lawyer. It would impose a considerable burden on consular officials if they had to establish a scheme in each jurisdiction to validate or assess the competency of local lawyers. Fourthly, there would have to be some system for assessing a British national's ability to pay. In principle, the Secretary of State could establish an assessment scheme similar to that which operates in our legal aid system. But what would be the relevant limits in each jurisdiction? They would have to be sensitive to the average legal fees in each country. What about the question whether an individual's entitlement to financial assistance should be affected by whether he or she has access to funds from family, friends or donations from other sources, such as charitable organisations? The Government might legitimately expect those who have access to such funds to use them before seeking Government assistance. But how could a test be devised for assessing whether an individual has access to such funds? Finally, there is the question of how the Secretary of State could be expected to assess the reasonableness of the fees charged by the local lawyer in the circumstances of the particular case. In England and Wales, there is an established procedure by which parties in receipt of legal aid submit a proposed plan of the work involved, which is then evaluated by the Legal Services Commission. But this is all in the context of a legal system which is understood by the officials who control the funding. These officials are in a position to say whether, in their view, a particular step is justified in the particular proceedings. How would the Secretary of State (or his consular officials) perform that function in the context of a foreign legal system in which they are not expert?

Perhaps, as is often the case, any individualized submissions would ultimately have fallen on deaf ears and not availed the applicant at all.