The unusual question the Supreme Court has just decided: What, at law, is a “government policy”?

The answer, given in the judgment about Heathrow expansion, is not what you might think

December 17, 2020
Tail fins of aircraft parked at Terminal One, Heathrow. Photo: Tim Ockenden/PA Wire/PA Images
Tail fins of aircraft parked at Terminal One, Heathrow. Photo: Tim Ockenden/PA Wire/PA Images

The word “policy'” is vague. Sometimes, in politics, it appears to be a word even without any meaning. A politician may be said to have a good policy, a bad policy or no policy—and sometimes all three at once about the very same thing.

For lawyers, the word does have meaning, or a range of meanings. There is the special definition of the word in respect of insurance contracts. A judge may also decide a case one way or the other on the basis of “public policy,” which is not (or should not) be another term for the social and economic prejudices of the judge. There are even privacy and cookie policies, such as this one.

The core meaning of most legal uses of the word “policy” is that it is a thing that, literally, polices. A policy should tell you what you can and cannot do in a given situation. One act can thereby be in accordance with (a) policy while another act will be contrary to (the) policy. The lack of a definite or indefinite article does not matter. Policy and policies must be followed.

But what, at law, is a “government policy”? This question fell to be answered by the Supreme Court of the United Kingdom in an appeal over the controversial subject of the expansion of Heathrow Airport.

The relevant statutory provision at issue was section 5(8) of the Planning Act 2008. This provides that a “national policy statement” must contain reasoning that explains how that statement takes account of government policy relating to the mitigation of, and adaptation to, climate change.”

At the Court of Appeal the government conceded that the relevant national policy statement had not taken account of government policy on climate change, in particular the Paris Agreement on climate change. The government then lost the appeal, and it did not seek to appeal the case further.

Heathrow Airport, however, did appeal and one of its grounds was that, whatever the government's public position on climate change as a signatory to the Paris Agreement, that position was not a “government policy.”

At first glance, this does not seem a promising point to take. Ministers had said things to the Commons and the UK was a formal party to an international convention. If this is not the same as “a government policy,” what would be?

But it turned out to be a point which the Supreme Court found compelling, and the relevant paragraphs of the judgment (105 and 106) should be read by anyone interested in government or law.

Put simply: a “government policy” has to be (a) a formal written statement of (b) established policy. Only if it is set out in writing formally would it be sufficiently precise for use for determining a legal question. It also needs to be in final form: a policy that is still being formulated or developed is not an “established” policy.

In respect of the Paris Agreement, oral statements by ministers were not formal and although the UK was party to an international agreement, how those international obligations were to be implemented in domestic law was still open to question and debate. Therefore there was no national policy in place for the purpose of the relevant statutory provision.

This approach provides legal certainty: there are few such formal policies in place on any subject, and so a court (and by implication a citizen) can work out the legal meaning of a statutory reference to a government policy. As the Supreme Court noted, parliament could not have “intended to create a bear trap for ministers by requiring them to take into account any ministerial statement which could as a matter of ordinary language be described as a statement of policy relating to the relevant field.”

Yet the price of this legal certainty is a certain defiance of common sense. The provision at issue did not just relate to “government policy” in the abstract but to “Government policy relating to the mitigation of, and adaptation to, climate change.” Oral statements by ministers are sufficiently certain for other legal purposes, such as the rule in Pepper v Hart. A government entering into international obligations may not, by itself, have domestic legal effect but is sufficiently important an act for it to show policy. Those opposed to Heathrow expansion can and should feel hard done by.

And more generally few policy areas ever settle down into being established. Policy in almost every area of government activity, from health to law and order, is a constant process of flux and modification. Such policies will never become “established.”

One can understand why judges would prefer not to have to deal with such government policies. As lawyers they have preferences for formal precise texts. And so it is not a surprise that they like policies that look like laws—and so have insisted on this, well, as a matter of public policy.