On 30 July 2021, the Supreme Court, of the same constitution, handed down two important decisions: R (on the application of A) v Secretary of State for the Home Department  UKSC 37 and R (on the application of BF (Eritrea)) v Secretary of State for the Home Department  UKSC 38 (covered in detail in a blog post by my colleague, Alex Papasotiriou).
In both, it was affirmed that when judicially reviewing the content of a policy document or statement of practice the court must ask whether the policy authorises, positively approves, or encourages unlawful conduct by those to whom it is directed. This narrow standard for court intervention, derived from Gillick v West Norfolk and Wisbech Area Health Authority  AC 112, was found to be supported by the role of policies in the law, and the view that a more demanding test would be contrary to the public interest. In ex parte A it was held that if there is no obligation in public law for an authority to promulgate a policy, and no requirement that it be a detailed and comprehensive statement of law, it cannot be struck down by a court for failing to meet that standard.
In 2010, the Secretary of State implemented the Child Sex Offender Disclosure Scheme for police responses to inquiring members of the public regarding the sex-offending conviction history of persons who have contact with children. In ex parte A, the appellant sought to judicially review the Guidance, setting out this scheme, which had been issued under the Secretary of State's common law powers.
Notably, A had previously successfully challenged the Guidance in 2012 in R (X) v Secretary of State for the Home Department  EWHC 2954 (Admin);  1 WLR 2638, on the basis that the Guidance did not include a requirement for police to consider whether a person should be given an opportunity to make representations to ensure the decision maker has all the information needed to make a just and fair decision regarding disclosure.
A now sought to further challenge the revised Guidance on the basis that it did not detail the circumstances in which a police force, when approached for information, is obliged to seek representations prior to disclosure. This creates a risk that a decision-maker may not provide such an opportunity, when required to do so. The grounds before the Supreme Court were that ‘the Guidance is unlawful because (i) it fails to recognise and reflect the importance of consulting with people who are at risk of suffering a violation of their article 8 rights by reason of disclosure and (ii) this means that there is a significant and/or unacceptable risk of a breach of article 8 and/or the common law' .
By unanimous decision of the Supreme Court, the Supreme Court dismissed the appeal of A. When reading the Child Sex Offender Disclosure Scheme Guidance as a whole, it was decided that it is ‘clearly lawful' as no part of it ‘can be fairly construed as giving a misleading direction' .
The Supreme Court held the appropriate test to be Lord Scarman's (p 181F) in Gillick: ‘It is only if the guidance permits or encourages unlawful conduct […] that it can be set aside as being the exercise of a statutory discretionary power in an unreasonable way.'
‘Permit' in this context is to be read as meaning ‘sanction' or ‘positively approve' (as observed by Underhill LJ in R (Bayer plc) v NHS Darlington Clinical Commissioning Group  EWCA Civ 449;  PTSR 1153 ).
Applying Gillick, the Supreme Court identified (in ex parte A, at ) three types of cases in which the content of a policy may be unlawful:
‘(i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way (ie the type of case under consideration in Gillick)
(ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and
(iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position.'
One must compare the relevant law with the policy statement. The policy is to be read fairly, reasonably, and ‘objectively, having regard to the intended audience' (ex parte A ). If it forces a person to act in a way contradictory to the law, the public authority, which has a general duty not to induce legal violations by others, has acted unlawfully and undermined the rule of law ‘in a direct and unjustified way' (ex parte A ).
Accordingly, it is not incumbent on a public authority issuing a policy to ensure that, if followed, the person to whom it was addressed would act lawfully in every case and eliminate any risk that the person might act unlawfully. Additionally, the drafter is not required to imagine how the policy might be misread, and eliminate that risk. Such an illegality would only arise if there was a duty to issue guidance providing a comprehensive account of how the subject should comply with their legal duties. Lumba v Secretary of State for the Home Department  UKSC 12 remains good law as to when there is a duty to explain how a general statutory discretion may be exercised and the circumstances in which the policy should be made public.
Additionally, the Supreme Court considered and closed every other avenue for challenging the content of policies.
The Supreme Court held that the test of systemic inherent unfairness of a public scheme (in R (Tabbakh) v Staffordshire and West Midlands Probation Trust  EWCA Civ 827;  1 WLR 4620, derived from R (Refugee Legal Centre) v Secretary of State for the Home Department  EWCA Civ 1481;  1 WLR 2219) is to be assimilated and read in line with Gillick. If there has been a breach of the duty of fairness in an individual's case, an individual is entitled to redress. However, if the legality of the policy is being challenged, the question is whether the policy can be operated in a lawful way or whether it imposes requirements which will result in a ‘material and identifiable number of cases' being handled unlawfully (ex parte A ), and this can be judged at the time of the policy's promulgation. The question is not whether a policy creates an ‘unacceptable risk' that an individual will be treated unfairly and hence unlawfully.
The more strenuous test of ‘unacceptable risk' was rejected on the basis that it would not be an incremental common law extension of the existing principle; it would ‘represent an unwarranted intrusion by the courts'; and risk the court carrying out a ‘statistical exercise' as was urged upon the court in BF (Eritrea) (ex parte A ). The test of whether a policy ‘gives rise to a significant risk of ill-treatment of the kind that falls within the scope' of article 3 ECHR referred to in R (Munjaz) v Mersey Care NHS Trust  UKHL 58;  2 AC 148  was found to be specific to article 3 and not a principle of general application for the assessment of policies.
The separate test of R (UNISON) v Lord Chancellor  UKSC 51;  AC 869, remains good law and is to be used in lieu of the tests in Refugee Legal Centre and R (S) v Director of Legal Aid Casework  EWCA Civ 464;  1 WLR 4733. The legality of a policy or delegated legislation can be challenged if it creates a real risk that it prevents access to justice. The court will make an overall evaluative assessment and may need to consider statistics as part of this assessment. However, the UNISON test is not to be conflated with the test in Gillick. The prior line of authorities on judicial review of the content of policies, other than Gillick and UNISON, should be approached with caution and read in light of the Supreme Court decisions in ex parte A and BF (Eritrea).
As stated by the court in ex parte A, ‘policies have moved increasingly centre stage in public law'.
These parallel appeals clearly demarcate the attenuated form of review which will be employed in any judicial review of a policy document.
In most cases, as there is no legal obligation to promulgate a policy document which is a comprehensive statement of the law, there can continue to be omissions from the policy so long as unlawful conduct is not authorised. However, in cases where the policy purports to provide a full account of the law—for example, if the Secretary of State's policy document can be construed to be a complete set of instructions to her officials—the test will be whether, read as a whole, it provides a misleading picture of the true legal position. Thus, depending on the context, even if it is not incumbent upon her to detail how discretion is exercised in every case, the Secretary of State may still be required to identify broad categories of cases requiring detailed consideration.
The Supreme Court considered that if the test were more demanding, there would be a practical disincentive in promulgating policy documents. The public authority would be drawn into litigation and spending large sums on legal advice in preparing guidance; and the courts would be drawn into spending their resources on answering academic questions, and reviewing and revising the drafting of policies, thereby interfering with the separation of powers. These would be contrary to the public interest. The court's approach will certainly avoid any allegation of judicial overreach and reduce perceived uncertainty relating to the grounds for judicial review, both of which were raised in the Independent Review of Administrative Law Report on reform of judicial review.
In public law, we can expect these decisions to narrow the possible grounds for judicial review, in the same stroke as extending leniency towards public authorities in their drafting.
In complex areas of the law, which lay persons find difficult to navigate, reliance on ambiguous or incomplete policy documents may result in decisions which will be more difficult to challenge on judicial review. For example, immigration law has been repeatedly criticised by the higher courts for its labyrinthine nature. Applicants and appellants regularly turn to policy guidance (issued to Home Office caseworkers) and fail to consult the Immigration Rules and various pieces of primary and secondary legislation. Such trust in these documents alone would be misplaced, even if they are open to misinterpretation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.