R v The Secretary of State for Foreign and Commonwealth Affairs

Facts

The appellant, a British national, was convicted in Indonesia of importing drugs and sentenced to death. The Foreign Office provided consular assistance and made representations against the death penalty, but under its policy it did not fund legal representation for British nationals in criminal proceedings abroad. She sought judicial review of the refusal to fund lawyers for her appeal.

History

Claim dismissed by the Divisional Court; appeal to the Court of Appeal dismissed.

Issue

Whether the European Convention on Human Rights applied, given the territorial scope of Article 1; whether EU law and the Charter of Fundamental Rights applied; and whether the Secretary of State had unlawfully fettered his discretion by adopting an inflexible policy admitting no exceptions.

Held

Appeal dismissed. The appellant was not within UK jurisdiction for Convention purposes, EU law was not engaged, and the blanket policy was a lawful exercise of prerogative power which was neither irrational nor unlawfully fettered.

Ratio

• The principle that a body exercising a statutory discretion must not adopt a policy that excludes consideration of individual exceptions derives from the duty to give effect to the discretion Parliament conferred; it does not apply to the prerogative, under which the executive may decide the scope of its own policy, including a policy with no exceptions, provided the policy is rational and applied lawfully.

The judgments

Key reasoning

• The fettering rule associated with British Oxygen Co Ltd v Board of Trade [1971] AC 610 is a rule of statutory interpretation: where Parliament confers a discretion it is taken to intend that the discretion be exercised, which forbids shutting the door on individual cases.
• Prerogative powers are not conferred by Parliament, so there is no comparable legislative intention to be honoured; the executive may decide whether and how far to exercise them.
• This does not place prerogative policies beyond review: following Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 they remain subject to review for rationality, fairness and consistent application.
• The policy had sound reasons, including the cost and the difficulty of drawing principled lines between cases, and the appellant received other support, so it was not irrational.

Where it fits in the module

Under Fettering of discretion, Sandiford tests the rationale of the rule in British Oxygen: if the rule rests on legislative intention, it falls away for the prerogative. It invites comparison with cases where courts insisted on flexibility in applying policy, and with later decisions on the status and review of policies. The tension is between consistency and certainty in administration and the individual's claim to have a case considered on its merits.

Criticisms

• Tying the anti-fettering rule solely to statutory intention ignores its roots in fairness to the individual, which apply equally whatever the source of power.
• The result gives the executive greater freedom to act inflexibly when it uses non-statutory powers than when Parliament has authorised it, an inversion of the usual constitutional priority of statute.
• Rationality review of a blanket policy is a weak safeguard in a case with stakes as high as a death sentence.
• The reasoning sits uneasily with the general trend, after GCHQ, of treating the source of a power as irrelevant to the grounds on which its exercise may be reviewed.