Sources of “Policy” in Administrative Law

My last post on “policy” was somewhat despairing. I will try to be more bullish in this one!

To tentatively attempt a positive definition, I would say a “policy” is a posture adopted by a body on an issue which, in turn, shapes the position the body takes on other issues. This tentative definition avoids the problems that encumber the others considered in this section. With that tentative definition in mind, let me turn to sources of policy, working with my tentative definition and uncontroversial examples of “policy” to defend the utility of the definition.

International law can be a source of “policy”. For instance, article 2(1)(c) of the Paris Agreement states that the Agreement “aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by … Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development”. In R. (Friends of the Earth) v. Secretary of State for International Trade, [2023] EWCA Civ 14, Friends of the Earth sought judicial review of a decision to fund a liquified natural gas project in Mozambique on the basis that the decision was incompatible with Britain’s commitments under the Agreement. The project at issue here would have very large ‘Scope 3’ emissions, that is all indirect emissions from the fossil fuels extracted by a project not which are not direct emissions (or indirect emissions from the generation of purchased electricity). Ultimately, the claim for judicial review was unsuccessful, but only because the government had a ‘tenable’ view of the policy memorialized in the Agreement. In other instances, and had the mathematics on ‘Scope 3’ emissions been different, the posture required by the Paris Agreement would have led to a different position on funding the project.

Government statements often refer to “policy”. Many modern governments have ‘net zero’ goals, for instance. These shape subsequent action: a government committed to net zero will, amongst other things, finance carbon-neutral projects and be less likely to approve resource-intensive extractive initiatives.  Canada’s current government has been at loggerheads with China: there is little doubt that its “policy” in this regard has shaped its use of its powers in respect of inward foreign investment. During the Brexit negotiations between Britain and the European Union, Prime Minister Theresa May gave a speech setting out a number of “red lines” that a final deal would have to respect: these turned out to be somewhat unrealistic but they were doubtless “policy”.

Soft law can contain “policy”, in the sense of a statement about how a body proposes to use its powers (or refrain from using them) in a range of particular cases. It is worth recalling the comments of Evans J.A. in Thamotharem v. Canada (Minister of Citizenship and Immigration), [2008] 1 FCR 385, at paras. 55-56:

Effective decision making by administrative agencies often involves striking a balance between general rules and the exercise of ad hoc discretion or, to put it another way, between the benefits of certainty and consistency on the one hand, and of flexibility and fact‑specific solutions on the other. Legislative instruments (including such non‑legally binding “soft law” documents as policy statements, guidelines, manuals, and handbooks) can assist members of the public to predict how an agency is likely to exercise its statutory discretion and to arrange their affairs accordingly, and enable an agency to deal with a problem comprehensively and proactively, rather than incrementally and reactively on a case-by-case basis…Through the use of “soft law” an agency can communicate prospectively its thinking on an issue to agency members and staff, as well as to the public at large and to the agency’s “stakeholders” in particular. Because “soft law” instruments may be put in place relatively easily and adjusted in the light of day‑to‑day experience, they may be preferable to formal rules requiring external approval and, possibly, drafting appropriate for legislation…

And so, to take a high-profile example, some years ago the Canadian government reformed appointments to the Senate by appointing an advisory board, “an independent and non-partisan body whose mandate is to provide the Prime Minister with merit-based recommendations on Senate nominations”. In substance, this substantially changed the appointments process to the Upper House of Canada’s Parliament by changing the policy from one of unfettered executive discretion over appointments to one depending heavily on arms-length advice from an independent body.

Official practice can generate “policy”. The recent decision of the Irish Court of Appeal in Wei v Minister for Justice [2023] IECA 138 is a good example. Section 4(3)(j) of the Immigration Act 2004 allows an immigration officer to refuse permission to enter Ireland to any non-national where “the non-national’s entry into, or presence in, the State could pose a threat to national security or be contrary to public policy”. Permission had been refused to students who were coming to Ireland to study in a programme that had to be held online due to the exigencies of the COVID-19 pandemic. This refusal was based on a settled practice, contained in a set of guidelines issued in 2011, of not allowing students to come to Ireland to take online courses. Of course, this policy had varied somewhat during the pandemic, but before the students’ arrival the respondent had warned prospective students (on her website) that they should wait for in-person learning to recommence. The Court of Appeal held (not entirely plausibly, in my view) that “public policy” encompassed general government policy such as the policy against online learning for non-nationals.

In each of these examples, the instrument — a treaty, a government statement, soft law or official practice — sets out a posture designed to shape positions taken subsequently. Notice that none of these instruments is binding: the force of law is conspicuous by its absence (at least at domestic level). Notice, also, that the content of the instruments is distinct from the substantive consideration that motivated their adoption in the first place. In my next post in this series, I will discuss the possible influence of “policy” on administrative decision-making.

UPDATE: Members of the Canadian Council on Administrative Tribunals can join me tomorrow, 1pm to 2.30pm Eastern for a talk on this topic. The link is here.

This content has been updated on December 4, 2023 at 15:24.