UK: Public Law Case Update – Q3 2023

Gowling WLG's team of public law and regulation specialists examine the following cases and identify the key points that can be taken from them. In particular, this quarter featured a number of interesting cases on policies, which can be found at the beginning of our list:

• Public sector equality duty does not have extraterritorial effect – R (Marouf) v Secretary of State for the Home Department
• An insufficient voluntary consultation or an appeal for information? – R (Secretary of State for Work and Pensions) v Eveleigh
• Ambitious statutory duty? Helpful guidance on identifying whether a duty is a 'target duty' or an 'achievement duty' – R (AA) v National Health Service Commissioning Board
• Stale consultation – R (Associated Society of Locomotive Engineers and Firemen & Anr) v Secretary of State for Business and Trade
• Apparent bias where a decision-maker has an ongoing relationship with a party – Suleman v General Optical Council
• Ten principles on the duty of candour – R (Police Superintendents' Association) v The Police Raemuneration Review Body and Anr

Public sector equality duty does not have extraterritorial effect

In R (Marouf) v Secretary of State for the Home Department, the Supreme Court confirmed the public sector equality duty (PSED) at section 149 of the Equality Act 2010 (EA 2010) does not have extraterritorial effect. This means that those with no connection to the UK cannot challenge a decision by alleging a breach of the PSED by a UK public body.

The appellant was a Palestinian refugee, living in Lebanon. She wished to come to the UK under the Vulnerable Persons Resettlement Scheme (the Scheme), which provides emergency sanctuary for vulnerable displaced refugees.

The Scheme is implemented by the Secretary of State (SoS) who relies on the UN High Commissioner for Refugees (UNHCR) to identify and recommend refugees for resettlement in the UK. Palestinian refugees are outside of the remit of the UNHCR because they are covered by another UN organisation (United Nations Relief and Works Agency (UNRWA)), which has no mandate to resettle refugees in a third country. Therefore Palestinian refugees cannot participate in the Scheme.

The main ground was that the SoS failed to comply with the PSED, particularly s149(a) requiring due regard to the need to advance equality of opportunity for those sharing a relevant protected characteristic (i.e. Palestinian refugees), as compared with those not sharing it (i.e. other refugees).

At first instance, the Court was bound by previous authorities to find extraterritorial effect. The Court of Appeal allowed the SoS' appeal and granted permission to appeal to the Supreme Court.

The appellant argued that all of s149 had extraterritorial effect, or alternatively, that it had extraterritorial effect co-extensively with the limited extraterritorial effect of s29 EA 2010, identified by the Court of Appeal. Although that claim has since been dismissed on the facts by that Court.

The Supreme Court noted the well-established presumption against the extraterritorial effect of legislation, unless a contrary intention appears. It rejected the argument that the presumption had been softened and would only arise in certain cases, e.g. to protect comity between nations.

In response to criticisms that extraterritoriality would place an impracticable burden on decision-makers, the appellant argued that for s149 the effect would be limited in many cases as nothing could realistically be done in pursuance of the PSED. The Court rejected this on the basis that if little useful purpose was served in most cases, it was less (not more) likely that Parliament intended extraterritorial effect.

The Supreme Court held that the reasoning in previous authorities was flawed. Nothing in the legislation rebutted the presumption. Indeed, the difficulty in considering the goals in s149 in respect of persons overseas (e.g. to 'eliminate unlawful discrimination...') suggested otherwise.

However, in certain overseas cases factors mirroring those in s149 might be 'so germane' to the decision that the public body must take account of them under ordinary judicial review principles.

In respect of the alternative argument, the Court held that the PSED is primarily directed at policy decisions, rather than the application of policy to individual cases. Decisions applying the Scheme (but not this decision) fell within the territorial extension at s29, but the policy underlying the Scheme did not.

An insufficient voluntary consultation or an appeal for information?

In R (Secretary of State for Work and Pensions) v Eveleigh (formerly Binder), the Secretary of State for Work and Pensions (SoS) successfully appealed the High Court's decision to quash the National Disability Strategy (the Strategy) on the basis of the UK Disability Survey (the Survey), which was used to "inform" the Strategy.

The High Court determined that, while there was no duty to consult, the SoS had voluntarily embarked on a consultation to which certain common law principles should be applied – in particular, the second Gunning principle (laid down in R v Brent London Borough Council, ex parte Gunning), which states that sufficient reasons must be put forward for a proposal to allow for intelligent consideration and response.

The High Court observed that whether an exercise is a consultation is a matter of substance, not form. The word "consultation" had been used to describe the Survey and this (among other things) meant that it was a consultation. The Gunning principles therefore applied and the information provided to respondents was insufficient to comply with them.

On appeal, the SoS contended that the Judge erred in finding that the Strategy was a consultation to which the Gunning principles applied.

The Court of Appeal observed that the Gunning principles have always applied to those cases in which a public authority "contemplated making a specific decision which would or might adversely affect a particular person or group of people". This assumes that there is an actual proposal, which is crystallised sufficiently that the public authority knows what the proposed decision may be and is able to provide reasons for it (potentially even commenting on discarded alternatives). However, the proposal must be at a sufficiently 'formative' stage that consultees' views might influence it.

The Strategy was, by contrast, a "series of general policy commitments which are at such a high level of abstraction that it is not easy to see their direct negative (or positive) impact on a particular person or group of people". The SoS could not provide the required information or reasoning because it did not exist. The Strategy could not conceivably have been the subject of a 'consultation' complying with the Gunning principles; it was "no more than an inchoate plan which would take shape as and when information was gathered, and in response to that information". The purpose of the Survey was not to enable respondents to respond to proposals. There were no proposals. The Survey was merely an opportunity for respondents to influence the future content of the Strategy by providing information that the SoS lacked.

The SoS also argued that voluntary consultation should be assessed on a rationality basis (rather than Gunning). There was high hope that the Court of Appeal would address that issue, but it declined to do so, noting that there is currently no binding authority on the point, and that addressing the question in this case would be "unnecessary" and "superfluous". That is therefore a question for another case.

Ambitious statutory duty? Helpful guidance on identifying whether a duty is a 'target duty' or an 'achievement duty'

In R (AA) v National Health Service Commissioning Board the Court of Appeal gave useful guidance on 'target duties', under which the duty-holder need only 'act with a view to achieving' the object of a target duty. A 'target duty' is distinguishable from an 'absolute duty' or an 'achievement duty' in which the duty-holder must achieve the object of an achievement duty.

The appellants identified as a gender differing from the sex they were assigned at birth. Their GPs had referred them for specialist NHS gender identity (GI) services, to be arranged by the respondent, known as NHS England (NHSE). Three of the appellants had waited years for assessment.

The case concerned regulation 45(3) of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012. This required NHSE to 'make arrangements to ensure' that 92% of a cohort of patients (including the appellants) wait less than 18 weeks to start appropriate treatment (the Standard).

There were two issues:

1. Is regulation 45(3) an achievement duty or a target duty? (the Duty Issue)
2. Is the cohort to whom the duty is owed restricted to those referred for consultant-led treatment? (the Cohort Issue)

At first instance, Chamberlain J found a target duty and held that the cohort was not restricted to those referred for consultant-led treatment. The appellants appealed the first finding and NHSE appealed the second.

The Court of Appeal held that the duty was a target duty, but for different reasons to Chamberlain J. In respect of the Cohort Issue, it held that regulation 45 applies only to referrals for consultant-led services.

This case was particularly interesting because of the analysis of the Duty Issue. This provides helpful guidance for duty-holders faced with statutory duties that appear to suggest an obligation to achieve ambitious (and potentially challenging) outcomes.

Popplewell LJ began with the language of the duty itself, concluding that the duty was effectively to make arrangements to meet the Standard. A duty to 'make arrangements to ensure' an outcome could be a target duty or an achievement duty, based on case law, so further analysis was required.

He considered the role of the duty-holder, NHSE, and whether there were circumstances precluding the Standard from being achieved. NHSE could not, by itself, achieve the Standard, and there were many unanticipated 'vicissitudes' beyond its control, which might preclude its achievement; including the pandemic and the increased demand for GI services. NHSE had many other policy considerations of equal or greater importance to make, which may impact on the Standard.

Aides to interpretation also supported this view, including that, in predecessor regulations, individual failure to meet the Standard did not necessarily lead to a finding of 'failing' or 'underachievement', suggesting the duty was simply a target.

The Court held that the Secretary of State could not sensibly have intended to impose upon NHSE an achievement duty that it may have been unable to fulfil through no fault of its own. This is due to factors inherent in healthcare provision, especially where achievement was dependent on the impact of many other policy considerations of equal or greater importance.

Stale consultation

Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 made it a criminal offence for an employment business to introduce or supply workers to an employer to carry out the work of those who were participating in official strike action.

A public consultation to revoke Regulation 7 was undertaken in 2015, with the majority of respondents being against the proposal.

In 2022, and without further public consultation, the Secretary of State (SoS) made the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (the 2022 Regulations), repealing Regulation 7. The 2022 Regulations were the subject of the challenge in R (Associated Society of Locomotive Engineers and Firemen & Anr) v Secretary of State for Business and Trade.

The 2022 Regulations were made under the Employment Agencies Act 1973. Section 12(2) of that Act states that no regulations can be made unless the SoS first consults "such bodies as appear to him to be representative of the interests concerned".

The claimant trade unions argued that the SoS failed to conduct the required consultation before making the 2022 Regulations.

The Court considered that by requiring the SoS to consult those who may be well informed – such as trade unions, businesses, employment agencies and employers – section 12(2) helps to enhance the quality of decisions made. Any consultation was to be undertaken in line with the principles outlined in R v Brent London Borough Council, ex parte Gunning, which requires that a consultation be meaningful and fair.

The fourth Gunning principle requires the outcome of the consultation to be conscientiously considered before making a decision. However, the decision was made and pushed through Parliament quickly. The Court found no evidence that the 2015 consultation was considered before the 2022 Regulations were laid before Parliament. In 2022, only Government Ministers and Parliament were consulted. This approach was so unfair as to be unlawful. The requirements of section 12(2) were not fulfilled as there had been no effective consultation.

However, the situation would not have been saved even had the 2015 consultation been properly taken into account. Increasing the speed of the process seemed to be the main reason that further consultation was not pursued, which itself was unfair and irrational, and frustrated the aim of section 12(2).

Given the lapse of time since the previous consultation, the negative response to it, the changes in circumstances since then and the possibility of new views from different bodies being presented in a new consultation, the requirements of section 12(2) would not have been met without seeking updated views and evidence from relevant representatives once again.

The Court also rejected an argument under section 31(2A) of the Senior Courts Act 1981. Given the changes in circumstances since 2015, and the fact that the decision to revoke regulation 7 was neither obvious nor undisputed, it could not be said to be highly likely that the SoS would have come to the same conclusion had further consultation occurred.

The 2022 Regulations were therefore quashed.

Apparent bias where a decision-maker has an ongoing relationship with a party

Suleman v General Optical Council was a statutory appeal to the Administrative Court against a professional disciplinary decision. The appellant was a registered student dispensing optician who worked at one of the branches of a well-known chain of high street opticians. She was found guilty of misconduct by the General Optician Council's Fitness to Practice Committee and removed from the professional register.

She appealed that decision to the High Court arguing, in part, that the committee's decision was vitiated due to the apparent bias of one of its members, Mr Pinnington. He had formerly been a director of one of the chain's other branches for 25 years. His disclosure to the panel in that regard was not alerted to the claimant, who only discovered it after the committee had made its decision.

It also later emerged that, since retiring as a director, Mr Pinnington had acted as a locum dispensing optician at a number of other branches (although not the one that the appellant had worked at) – a point that had not been disclosed to the Committee.

The test for apparent bias, as set out in Porter v Magill, is whether in all the circumstances of the case a fair-minded and informed observer would conclude that there is a real possibility of bias.

The Court made reference to a number of other decisions on bias noting that, in Belize Bank Ltd v Attorney General of Belize, the Privy Council characterised the fair-minded observer as "neither complacent nor unduly suspicious". However, in Dimes v Proprietors of Grand Junction Canal, it was held that a decision-maker will be automatically disqualified where they have a personal or pecuniary interest in the outcome of a decision, no matter how small.

The Court described the relationship of Mr Pinnington and the chain as "substantial" and "long-lasting". Although his former directorship of a particular branch might not have led the observer to consider there was a real possibility of bias, his subsequent locum work would. It had to be inferred that Mr Pinnington hoped to gain more locum work, as it was his only form of income outside sitting on the Committee, and he earned a lot of money at a range of different branches.

The issue that the Committee had to consider was whether the appellant had breached the trust put in her by the chain, and the public's confidence in that chain.

To the extent that Mr Pinnington hoped to obtain future locum work, the fair-minded and informed observer would conclude that there was a real possibility that, consciously or unconsciously, he would be disposed to find that the appellant had injured the reputation of the chain. They would also resolve evidential points in favour of the chain's branch managers and against the appellant.

Mr Pinnington should therefore have recused himself. Although he was only one of the Committee's members, it had sat for 10 days and it was impossible to know how influential his views had been. If one member of the Committee was tainted by apparent bias, the whole Committee was tainted.

The decision was therefore quashed and remitted to a new Committee.

10 principles on the duty of candour

The permission decision in R (Police Superintendents' Association) v The Police Remuneration Review Body and Anr concerned a challenge to two decisions relating to police pay. The Police Superintendents' Association (PSA) claimed that there was a breach of the public sector equality duty (PSED): firstly, by the Police Remuneration Review Body in recommending a flat-rate pay increase of £1,900 to all police officers at all pay points for all ranks; and, secondly, by the Secretary of State (SoS) in accepting the recommendation.

Most notably, however, the case addresses the interpretation and application of the common law 'duty of candour' by a public authority defendant. As the normal disclosure rules in civil litigation do not apply in judicial reviews, this duty governs the extent to which relevant facts or information are to be disclosed to ensure fair determination of the case.

The SoS indicated that the recommendation had been accepted after considering two submissions to ministers. Extracts from these submissions were disclosed, but not the full documents. The Court was asked to consider at permission stage whether the full documents should have been provided to comply with the duty of candour.

Fordham J identified the following 10 principles, which he considered informed the interpretation of the duty of candour:

1. 'Standard Disclosure': CPR Part 31 does not apply to judicial review. Offloading lots of documents is "unnecessary and inappropriate".
2. 'Just Disposal': Is the document necessary to resolve the matter fairly and justly?
3. 'Candid Disclosure': All 'relevant material' must be fully and fairly disclosed.
4. 'Information-too': 'Relevant' facts must be identified in witness evidence.
5. 'Relevant Material': Candid disclosure includes materials "reasonably required for the court to arrive at an accurate decision", "full and accurate explanations of all the facts relevant to the issue that the court must decide" and "a true and comprehensive account of the way in which relevant decisions in the case were arrived at including the underlying reasoning".
6. 'Non-selectivity: Disclosure must not be selective.
7. 'Best Evidence': The documents themselves, rather than summaries or extracts, should be disclosed.
8. 'Redaction': Documents may be redacted for public interest immunity, confidentiality, legal professional privilege or statutory restriction.
9. 'Permission Stage': The duty of candour applies prior to – and for – the court's consideration of whether to grant permission for judicial review.
10. 'Unpleaded-grounds': The duty of candour extends to information that will assist the claimant's case or may give rise to further grounds of challenge.

Fordham J ultimately declined the request for the ministerial submissions to be disclosed for a number of reasons, including that: the error was a good faith misunderstanding of recent case law; the request was limited to the specific basis of necessity to determine the PSED issues; and the quotation provided was reliable. In Fordham J's view, notwithstanding the failure to disclose the ministerial submissions, he was "left in no doubt that this is a very clear-cut case where there is no viable claim for judicial review". Thus, the material put before him was sufficient to enable him to reject both the disclosure application and the broader permission application itself.