. 91
( 155 .)


ferred on the police authority by section 4 of the Police Act 1964. The Divisional Court rejected
that submission for reasons with which I wholly agree; namely that section 4 does not
expressly grant a monopoly, and that granted the possibility of an authority which declines
to provide equipment required by the chief constable there is every reason not to imply a
Parliamentary intent to create one.

Purchas LJ: . . . It is well established that the courts will intervene to prevent executive action
under prerogative powers in violation of property or other rights of the individual where this
is inconsistent with statutory provisions providing for the same executive action. Where the
executive action is directed towards the benefit or protection of the individual, it is unlikely
that its use will attract the intervention of the courts. In my judgment, before the courts will
hold that such executive action is contrary to legislation, express and unequivocal terms must
be found in the statute which deprive the individual from receiving the benefit or protection
intended by the exercise of prerogative power.

Is this ruling consistent with the principle a¬rmed in Attorney-General v De
Keyser™s Royal Hotel Ltd? (See further Bradley [1988] PL 298.)
473 The powers of government

(e) Administrative rule-making (quasi-legislation)
Public authorities, in particular ministers or government departments acting in
the name of ministers, frequently adopt rules without statutory authority which
are intended to regulate the way in which they will exercise statutory or other
discretionary powers. These are rules of administrative practice, not of law,
and rule-making of this kind is commonly described as administrative quasi-
legislation (see Megarry, ˜Administrative quasi-legislation™ (1944) 60 LQR 125
and G Ganz, Quasi-Legislation: Recent Developments in Secondary Legislation
(1987)). Such ˜quasi-legislative™ rules may be described as ˜tertiary rules™ (dis-
tinguishing them from primary or parliamentary legislation and secondary or
delegated legislation: cf R Baldwin, Rules and Government (1995), p 80 et seq)
or simply as ˜administrative rules™.
Quasi-legislative rules are a means by which the administration injects
speci¬c policies into the exercise of its discretionary powers. The courts have
recognised that public authorities are entitled to adopt policies or rules for their
own guidance in exercising discretions conferred upon them. (See British
Oxygen Co Ltd v Board of Trade [1971] AC 610.) In R (Alconbury Developments
Ltd) v Secretary of State for the Environment, Transport and the Regions [2001]
UKHL 23, [2003] 2 AC 295, [143], Lord Clyde said:

The formulation of policies is a perfectly proper course for the provision of guidance in
the exercise of an administrative discretion. Indeed policies are an essential element in
securing the coherent and consistent performance of administrative functions. There are
advantages both to the public and the administrators in having such policies. Of course there
are limits to be observed in the way policies are applied. Blanket decisions which leave no
room for particular circumstances may be unreasonable. What is crucial is that the policy must
not fetter the exercise of the discretion. The particular circumstances always require to be
considered. Provided that the policy is not regarded as binding and the authority still retains
a free exercise of discretion the policy may serve the useful purpose of giving a reasonable
guidance both to applicants and decision makers.

Administrative policies and rules help to ensure consistent decisions which
further the administration™s objectives and, applied reasonably, make for
public con¬dence in the integrity and fairness of o¬cial conduct. It is there-
fore unsurprising that much administrative activity is regulated by such
self-imposed rules. They may be expressed as broad principles, standards
or guidelines, or may prescribe in quite speci¬c detail the terms upon
which action will be taken. In speaking generally of ˜administrative rules™ we
should keep in mind that they may di¬er in this way. Let us look at some
Naturalisation. The Home Secretary, in deciding on an application for nat-
uralisation as a British citizen, has to be satis¬ed that the applicant ful¬ls
certain requirements, among them that he or she is ˜of good character™: British
474 British Government and the Constitution

Nationality Act 1981, section 6(1) and Schedule 1. For the assessment of this
element (which has existed in the law since 1844) a number of rules or crite-
ria have been evolved. These were outlined by a Home O¬ce minister in
Parliament on 19 March 1981 (HC Standing Committee F (British Nationality
Bill), cols 692“3). The Government™s current understanding of the good
character requirement is set out in the Nationality Instructions issued by the
Immigration and Nationality Directorate of the Home O¬ce. Applicants may
be refused naturalisation on character grounds in case, for example, of
involvement (or suspected involvement) in criminal activity; bankruptcy,
debt or non-payment of taxes; notorious anti-social behaviour; deception
or false statements in pursuing the application; evasion of immigration
control. (These factors, with their limits and exceptions, are described in detail
in the Instructions, which can be found at www.ind.homeo¬ce.gov.uk/
lawandpolicy/policyinstructions/nismenu.) Is a requirement of ˜good charac-
ter™ best left to ministerial discretion, subject to self-imposed criteria, or
should the attempt be made to formulate precise and objective rules in
Passports. The Home Secretary (or the Foreign Secretary in respect of over-
seas applications) has a discretionary power under the prerogative to grant and
withdraw passports. The exercise of this discretion is governed not by rules of
law but by a set of departmental rules initially adopted by the Foreign and
Commonwealth O¬ce. The rules were stated as follows by a Home O¬ce min-
ister on 25 July 2002 (HL Deb vol 638, col 107 WA):

Passports are . . . not issued to persons who are not British nationals and/or whose identity
cannot be authenticated.
Passport facilities are refused or can be withdrawn in certain other well defined categories,
which have been reported to Parliament from time to time. These are:

(i) a minor whose journey is known to be contrary to a court order, to the wishes of a parent
or other person or authority in whose favour a residence order has been made or
awarded custody or care and control, or to the provisions of Section 25(1) of the Children
and Young Persons Act 1933, as amended . . . or Section 56 of the Adoption Act 1976,
as amended . . .
(ii) a person for whose arrest a warrant has been issued in the United Kingdom or who is
wanted by the police on suspicion of a serious crime;
(iii) in very rare cases, a person whose past or proposed activities are so demonstrably unde-
sirable that the grant or continued enjoyment of passport facilities would be contrary to
public interest;
(iv) a person repatriated at public expense, until the debt has been repaid.

The refusal or withdrawal of passport facilities in these circumstances is rare and cases are
considered on their individual merits. On the basis of the limited case law it is clear that such
action is open to scrutiny by the courts.
475 The powers of government

The possibility of introducing a statutory right to passports has been debated in Parliament
in the past but successive governments have taken the view that the current system has
worked well and change is not required.

Professor Brazier comments (Public Administration Committee, Fourth
Report, HC 422 of 2003“04, Appendix 1, para 22):

the citizen™s possession of a passport should not depend largely on the exercise of Ministerial
discretion based on non-statutory rules devised by Ministers themselves “ especially given
that those rules have never been approved by Parliament. If the executive is to decide
whether a citizen can enter and leave his or her own country then that must be on the basis
of law approved by the legislature.

It has been judicially con¬rmed that the Secretary of State can properly apply a
set of policies or rules in the exercise of the power to grant or withdraw pass-
ports, but the rules must not be applied in an arbitrary or unfair manner:
R v Secretary of State for Foreign and Commonwealth A¬airs, ex p Everett [1989]
QB 811. The rules may be varied from time to time, as in 1968 when the
Government decided to declare invalid all then existing Rhodesian passports,
and to issue British passports to certain speci¬ed categories of Rhodesians. (See
HC Deb vol 766, cols 738“9, 17 June 1968.)
Interception of communications. The interception of postal and telephonic
communications was for many years carried out without statutory authority
under rules laid down by the Home O¬ce. The rules were published for the ¬rst
time in the Report of a Committee of Privy Councillors in 1957 (Birkett Report,
Cmnd 283), whose recommendations led to the adoption of new rules, pub-
lished in 1980 (The Interception of Communications in Great Britain, Cmnd
7873). It is questionable whether the rules were ever fully disclosed. Following
the judgment of the European Court of Human Rights against the United
Kingdom in Malone v United Kingdom (1984) 7 EHRR 14, the power of inter-
ception was put on a statutory footing by the Interception of Communications
Act 1985, since replaced by the Regulation of Investigatory Powers Act 2000.
The legislation does not, however, exclude the adoption of informal rules
governing the exercise of the power. It is provided by section 5 of the 2000 Act
(as previously by the 1985 Act) that a warrant for interception may be issued by
the Secretary of State if he believes it to be necessary, inter alia, ˜in the interests
of national security™. ˜National security™ is not de¬ned in the Act (or, indeed, in
any other Act in which it appears), but the Secretary of State adopted the rule
that warrants would be issued on this ground ˜either because of terrorist, espi-
onage or major subversive activity, or in support of the Government™s defence
and foreign policies™ (The Interception of Communications in the United
Kingdom, Cmnd 9438/1985, para 21). See further L Lustgarten and I Leigh, In
From the Cold (1994), pp 53“5.
476 British Government and the Constitution

Governments frequently adopt non-statutory administrative rules instead of
resorting to more formal, legislative procedures, and it is claimed that their use
makes for e¬cient administration.

Robert Baldwin, ˜Governing with Rules: The Developing Agenda™
in Genevra Richardson and Hazel Genn (eds), Administrative Law
and Government Action (1994), pp 167“8
[A]dministrative rules are said to routinize the exercise of discretion swiftly and inexpen-
sively; encourage consistency; increase the incorporation of expertise and experience into
decisions; enhance publicity and participation; give a flexibility lacking in primary and sec-
ondary legislation; allow non-technical language to be employed so as to make the rules
accessible; enable rules to be couched in persuasive terms rather than in the form of com-
mands; encourage compromises to be effected between those with different interests; deal
with broad policy issues in a manner not possible with more precise primary and secondary
rules; and allow rules to be introduced where more formal legislation is inappropriate or of
doubtful practical or political feasibility.

As against these claims, Baldwin notes that the making of administrative rules
is not subject to parliamentary control or to requirements of accountability
such as promulgation and consultation. Questions arise of transparency and
accessibility. (See further R Baldwin, Rules and Government (1995), pp 80“121.)
Non-statutory administrative rules have not always been published. They
may have been kept secret within the administration, or perhaps privately
noti¬ed to bodies primarily concerned. Even when publicly announced,
with or without full details “ in published circulars, government White
Papers, departmental publications, or ministerial statements or answers in
Parliament “ they have not always been easily accessible. Administrative rules
often raise important issues of public concern or have a substantial impact on
individual interests. The question whether rules should be published, and
in what detail, has in general been a matter for the government itself to
decide. In 1971 the government agreed to ˜bear in mind™ the need for public-
ity when signi¬cant changes a¬ecting the public were made in administrative
rules, and in particular undertook that where a rule had been announced in
Parliament, subsequent changes of signi¬cance would also be announced
there. (Parliamentary Commissioner for Administration, First Report, Cmnd
4729/1971, para 2.) In the Code of Practice on Access to Government
Information (2nd edn 1997, Part I, para 3(ii)), the Government undertook to
publish, or otherwise make available, such rules, procedures and internal
guidance to o¬cials ˜as will assist better understanding of departmental action
in dealing with the public™, subject to certain exceptions on grounds of
con¬dentiality. This appears to have given a stimulus to the publication of
administrative rules (eg, the Immigration Directorate™s Instructions to immi-
gration o¬cers, ¬rst published in 1998). The Freedom of Information Act
477 The powers of government

2000 generally assures access to information about administrative rules that
have no bearing on security or law enforcement matters.
Exceptionally, non-statutory rules are made subject to a parliamentary pro-
cedure. For instance, the Immigration Rules made by the Home Secretary are
not expressly authorised by the Immigration Act 1971 but the Act assumes or
acknowledges the fact that the minister may make rules. Section 3(2) provides:

The Secretary of State shall from time to time (and as soon as may be) lay before Parliament
statements of the rules, or of any changes in the rules, laid down by him as to the practice
to be followed in the administration of this Act for regulating the entry into and stay in the
United Kingdom of persons required by this Act to have leave to enter, including any rules
as to the period for which leave is to be given and the conditions to be attached in differ-
ent circumstances. . . .
If a statement laid before either House of Parliament under this subsection is disapproved
by a resolution of that House passed within the period of forty days beginning with the date
of laying . . ., then the Secretary of State shall as soon as may be make such changes or
further changes in the rules as appear to him to be required in the circumstances, so that
the statement of those changes be laid before Parliament at latest by the end of the period
of forty days beginning with the date of the resolution.

If disapproved by Parliament the rules do not cease to apply, but the minister is
obliged to make whatever changes in the rules he or she thinks necessary and
lay a statement of the revised rules before Parliament.
The Immigration Rules are a peculiar amalgam of explanations of statutory
provisions, information about administrative practice and procedures, and
directions to be followed by o¬cials in carrying out their duties. Their hybrid
character has troubled the courts, which were at ¬rst disposed to regard them
as delegated legislation: see R v Chief Immigration O¬cer, Heathrow, ex p
Salamat Bibi [1976] 1 WLR 979, 985 (per Roskill LJ). Subsequently the Court
of Appeal in R v Secretary of State for the Home Department, ex p Hosenball
[1977] 1 WLR 766 took the view that they are not delegated legislation or rules
of law in the strict sense but ˜rules of practice laid down for the guidance of
immigration o¬cers and tribunals who are entrusted with the administration
of the Act™ (per Lord Denning at 780).
Rules of the kind we are considering cannot alter the law or abridge rights
conferred by law. But such rules may supplement the law in allowing conces-
sions to which there is no legal entitlement or in laying down the conditions on
which discretionary bene¬ts will be granted. A statement of the relevant legal
rules will therefore often give an incomplete account of the circumstances in
which claims are admitted by the administration. An example can be found in
the set of rules adopted by the Inland Revenue in 1971 for the remission of
arrears of tax when the arrears resulted from a failure of the department to act
on information supplied by the taxpayer. (The rules were published in the
Government™s reply to a Report from the Select Committee on the Parliamentary
478 British Government and the Constitution

Commissioner for Administration, Cmnd 4729/1971.) Extra-statutory conces-
sions allowed by the revenue departments were formerly not necessarily publi-
cised, but these as well as other concessions by HM Revenue and Customs are
now published in the guide, Extra-Statutory Concessions, which is updated from
time to time. The following passage is taken from the Introduction to the guide:

An Extra-Statutory Concession is a relaxation which gives taxpayers a reduction in tax liabil-
ity to which they would not be entitled under the strict letter of the law. Most concessions
are made to deal with what are, on the whole, minor or transitory anomalies under the leg-
islation and to meet cases of hardship at the margins of the code where a statutory remedy
would be difficult to devise or would run to a length out of proportion to the intrinsic impor-
tance of the matter.

The government cannot lawfully apply an administrative rule by which


. 91
( 155 .)