ConsistencyTimes 9 Aprilsub nom GO (Colombia) v Secretary of State for the Home Department [2006] EWCA Civ 1276, (2006) Times 27 OctoberTimes 21 April
14.172There is a tension within the application of law between the desire for consistency (whether between the same or different parties) and the individual freedom for decision-makers. The latter freedom is enhanced by the limited scope of an appeal on a point of law in respect of matters of judgment.
1See chapter 4.14.173In
Matadeen v Pointu,
2[1999] 1 AC 98. Lord Hoffmann set consistency in the context of the rule of law:
… such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour. It is, for example, frequently involved by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational …
3[1999] 1 AC 98 at 109.14.174In
ZH (Bangladesh) v Secretary of State for the Home Department,
4[2009] EWCA Civ 8 at [33], reported as Hussain (Zakir) v Secretary of State for the Home Department (2009) Times 9 April. Sedley LJ referred, in the context of the exercise of a Government policy, to:
… the legal obligation of government not to act inconsistently with its own policy unless there is some good reason for doing so: see British Oxygen v Board of Trade [1971] AC 610. More than this would be to give internal guidance the force of law; less would be to tolerate double standards in public administration.
14.175There is a variety of devices through which the law seeks to reconcile the competing policies of consistency between cases and freedom for decision-makers in exercising matters of judgment.
5This issue is linked with precedent and finality. See chapters 2 and 13. These principles apply with greater flexibility in public law cases.
Consistency in the exercise of a discretion
14.176In
Jurkowska v Hlmad Ltd,
6[2008] ICR 841. Sedley LJ explained how a judicial policy could ensure consistency in the exercise of a discretion. The context was the power of the Employment Appeal Tribunal to extend time within an appeal could be lodged:
7[2008] ICR 841 at [63]–[64].Every discretionary power, both administrative and judicial, carries an inbuilt problem. To ensure a reasonable degree of consistency – an elementary requirement both of adjudication and of public administration – a policy is frequently helpful and sometimes indispensable. It means that people have some idea where they stand and that arbitrary distinctions are not made between similar cases. In public administration a policy of this kind is commonly found in unitary written form. In the judicial sphere it is ordinarily found either in appellate decisions designed to give guidance or in a series of first-instance decisions from which a policy or practice emerges. Less often it may be found in a practice statement of some kind. But, if the discretion is to continue to be real, decision-makers must not let a policy ossify into a rule: they must always be prepared to deviate from it if the facts warrant it.
In this way, a discretion which starts life at the centre of a statutory power, trammelled only by broad principles of law, shifts to the periphery of the power as its exercise comes, more or less rapidly, to be policy-guided. This is the natural and proper process which, as Lord Justice Rimer recounts in his judgment, has taken place in relation to the statutory discretion to enlarge time for appealing from an employment tribunal to the EAT. It is a process which in its nature seeks to ensure something that is now spelt out in Rule 2A(2)(a) – that the parties are on an equal footing, not only as between themselves but in relation to other parties in other cases.
Consistency in respect of evidence common to a class of case
14.177In
Shirazi v Secretary of State for the Home Department,
8[2004] 2 All ER 602. Sedley LJ took a similar approach to judicial policy in the interests of consistency, in that case on country guidance decisions in asylum appeals.
9See chapter 13.Consistency between parties
14.178Lord Hobhouse commented on this in
Uratemp Ventures Ltd v Collins.
10[2002] 1 AC 301. The issue for the House of Lords was whether the lack of cooking facilities prevented the claimant’s home being a dwelling. Lord Hobhouse emphasised that consistency was achieved by focusing on the language of the legislation rather than on its application to the particular facts in earlier cases:
11[2002] 1 AC 301 at [20].I will only add the further observation that the complications in the present case, as in some earlier cases, have arisen from treating factual decisions as if they involved the formulation of propositions of law. Consistency of approach is required from case to case. But that should not lead to the elaboration of a simple factual description with a supposed legal overlay preventing the language of the statute from being given effect to in each individual case in accordance with its ordinary meaning.
And as the Tribunal of Commissioners said in
R(I) 12/75: ‘questions of fact should not be elevated into questions of legal principle’.
12[2002] 1 AC 301 at [19].Consistency in respect of the same party
14.179This has been particularly considered in the context of asylum and immigration cases. In
Devaseelan,
13[2002] UKIAT 00282. the Immigration Appeal Tribunal set out guidelines for achieving consistency in fact-finding in cases involving the same parties by treating the first decision as a starting point on matters of fact but subject to due allowance for any difference in the issues and the evidence between the two cases.
14.180In
Ocampo v Secretary of State for the Home Department,
14[2006] EWCA Civ 1276, reported as GO (Colombia) v Secretary of State for the Home Department (2006) Times 27 October. the Court of Appeal applied this, in Auld LJ’s words, to ‘cases like the present where the parties involved are not the same but there is a material overlap of evidence’.
15[2006] EWCA Civ 1276 at [25]. This approach was approved in
AA (Somalia) and AH (Iran) v Secretary of State for the Home Department,
16[2007] EWCA Civ 1040 at [69]–[70]. subject to two qualifications set out by Carnwath LJ:
First, … ‘material’ requires some elaboration. It recognises I think that exceptions to the ordinary principle that factual decisions do not set precedents … should be closely defined. To extend the principle to cases where there is no more than an ‘overlap of evidence’ would be too wide, and could introduce undesirable uncertainty, in all the cases to which the principle has been applied so far, including Ocampo, the claims have not merely involved overlapping evidence, but have arisen out the same factual matrix such as the same relationship or the same event or series of events. I would respectfully read Auld LJ’s reference to ‘cases such as the present’ as limiting the principle to such cases.
Secondly, in applying the guidelines to cases involving different claimants, there may be a valid distinction depending on whether the previous decision was in favour or against the Secretary of State. The difference is that the Secretary of State was a direct party to the first decision, whereas the claimant was not. It is one thing to restrict a party from relitigating the same issue, but another to impose the same restriction on someone who, although involved in the previous case, perhaps as a witness, was not formally a party.
14.181Consistency between a tribunal and a decision-maker was considered by Bennett J as a preliminary issue in judicial review proceedings in
R (M) v Lambeth London Borough Council.
17[2008] 1 FLR 1026. A tribunal hearing an asylum appeal decided that the claimant was under 18. It did so in ignorance of an assessment by the local authority that he was 18 or over. The judge made cautious reference to the importance of consistency:
What I do decide is that,
if there is a principle of consistency which can be applied where a judicial body makes a decision to which the administrative body was not a party and with which the administrative body differs, then in the instant case the administrative body considered the judicial decision and had good and sound reasons for differing from it. It would be extra-ordinary if Lambeth were, in some way bound to follow such a decision where the very person (i.e. M) who in effect is seeking to enforce it on Lambeth, failed to bring to the attention of the AIT pertinent facts which might have had the result of the AIT deciding the case adversely to him and thus consistently with Lambeth’s decision of December 2006. Further, Mr Straker provided no argument that Lambeth could have somehow had the decision of the AIT set aside.
18[2008] 1 FLR 1026 at [163].14.182Consistency in respect of the same party was discussed in
R (PM) v Hertforshire County Council.
19[2010] EWHC 2056 (Admin). The case also concerned an age determination. A tribunal had found that an asylum-seeker had reached 18 and the local authority decided that it was bound by that conclusion. The court held that it was not. On consistency, the judge emphasised that: (i) the local authority had not been party to the tribunal’s decision; (ii) the tribunal’s decision was only binding between the parties; (iii) the authority would have different evidence available; and (iv) the issues were different for the tribunal and the authority.
20[2010] EWHC 2056 (Admin) at [74]–[87].Consistency between successive claims by the same party
14.183In principle, there should be consistency between successive claims for the same benefit. In practice, there are likely to be differences in the terms in which the claims are expressed and in the supporting evidence. Even if there are not, the decision on each claim is a separate decision in respect of a distinct period and is not binding in respect of other claims and periods.
21R v National Insurance Commissioner ex p Viscusi [1974] 1 WLR 646. Nevertheless, the Commissioners emphasised the importance of consistency between successive claims for a social security benefit, relying on the need for an adequate explanation of the difference as the control mechanism in those cases in which the reason for the change in entitlement was not self-evident.
22R(M) 1/96. This was despite the comments of Roskill LJ in R v National Insurance Commissioner ex p Viscusi [1974] 1 WLR 646 at 658–659. This approach to consistency through the requirement of an explanation has also been adopted by the European Court of Human Rights.
23Higgins v France (1998) 27 EHRR 703 at [43].Consistency on reconsideration
14.184In immigration and asylum, reconsideration may be directed on specific issues. If that is done, the tribunal must accept the findings previously made on other issues.
24MY (Turkey) v Secretary of State for the Home Department [2008] EWCA Civ 477; (2008) Times 21 April.Legislation
14.185Legislation may limit the extent to which consistency can be achieved. For example: section 46A of the Child Support Act 1991 and section 17 of the Social Security Act 1998 both provide that findings of fact and determinations embodied in or necessary to decisions are not conclusive unless regulations so provide.