R (A) v Secretary of State for the Home Department [2021] UKSC 37

Key Point

  • When challenging the content of policies, the correct test to apply is the Gillick test.

Facts

  • The applicant (A), a convicted child sex offender, sought judicial review of the Child Sex Offender Disclosure Scheme (CSOD Scheme) which was set up by the Home Secretary to organise the approach of police forces responding to requests by members of the public for information concerning the sex offending history of a person who deals with children.
  • The CSOD Scheme is set out in the Child Sex Offender Disclosure Scheme Guidance, which was issued by the Home Secretary by exercise of her common law powers.
  • A challenged the Guidance arguing that it did not go far enough to explain the circumstances in which a police force is obliged to seek representations from the person who concerns are raised about upon approach for information before disclosing any information to the member(s) of the public.
  • The Administrative Court held that the Guidance was lawful.
  • The basic premise of the applicant’s argument was that there is a duty of procedural fairness in consulting the person concerned. An unlawful decision would be the violation of procedural fairness the argument being that police officers would fail to seek representations when they are under a duty to do so.

Held (Supreme Court)

  • Appeal dismissed; the policy was lawful.

Lord Sales and Lord Burnett CJ

What are Policies? How does the law deal with them?

  • Policies are different from law. They do not create legal rights as such. In the case of policies in relation to the exercise of statutory discretionary powers, it is unlawful for a public authority to fetter the discretion conferred on it by statute by applying a policy rigidly and without being willing to consider whether it should not be followed in the particular case. [3]

The Test for Judicial Review of Policy at Common Law: The Gillick Principle

  • The Gillick test – A policy is unlawful if it sanctions, positively approves or encourages unlawful conduct by those to whom it is directed.
    • Lord Scarman [in Gillick] was explicit that it was not the role of policy guidance to eliminate all uncertainty regarding its application and all risk of legal errors by doctors. It was to be read objectively, having regard to the intended audience. […] . The language he uses in the test he sets out, to ask whether the guidance “permits or encourages unlawful conduct”, has to be read in the light of this discussion” [34]
      • Lord Scarman’s formulation in Gillick of the relevant test, “‘permit’ must in this context mean something like ‘sanction’, ie positively approve”, not merely that a course of action is not forbidden. [34]

Why the Gillick Test is Appropriate

  • The intended role of policies in the law is to constitute guidance which a public authority chooses to issue as a matter of discretion to assist in the performance of public duties. Where there is only a discretion, and no obligation, to issue a policy, the Gillickprinciple sets the relevant standard of lawfulness [39].
  • Policies serve a useful function in promoting good administration, and a more demanding standard of review would deter public authorities unduly from using them. It is not appropriate to expect public authorities to have to invest large sums on legal advice in order to produce policies which constitute statements of law to the level of detail of a legal textbook. Further, to set such a standard would draw the courts into review of policies to an excessive degree, involving them in having to produce elaborate judgments to deal with hypothetical cases which might arise within the scope of a policy. Courts’ resources should be directed to deciding actual cases rather than academic questions of law [40].
  • Three categories where a policy may be unlawful on a Gillick basis [46-47]
    • (1) the policy includes a positive statement of the law which is incorrect and would induce a person into breaching their legal duty.
    • (2) the public authority issues a policy that fails to provide accurate advice about the law when it is under a duty to provide accurate advice.
    • (3) where a policy fails to give a full account of a legal position if that is the purported purpose of the policy.

Current Case

  • The Guidance is lawful when assessed under the Gillick The Guidance sufficiently informs police officers to consider whether to seek representations from the subject of a potential disclosure in accordance with their obligations under Art 8 ECHR and common law duty to act fairly.
  • Reading the Guidance as a whole, it cannot be construed as giving a misleading direction and fails to meet the [high] threshold of the Gillick

Challenge on other legal principles

  • Test of inherent unfairness (R (Refugee Legal Centre) v Home Secretary and Tabbakh):
    • “whether the system established by the guidance in the policy documentation is inherently unfair by reason of a failure to provide the offender with a fair opportunity to make meaningful representations about proposed licence conditions” – Richards LJ in Tabbakh
  • The court found that this approach is not to be treated as a standalone test of unlawfulness but is to be assimilated with the Gillick
  • The applicant called for a test of ‘unacceptable risk of unfairness’ which would have been substantially wider than the test in Gillick and inconsistent with it.
  • The court rejected this submission on the basis that the ‘unacceptable risk of unfairness’ test makes no criterion of what exactly makes a risk unacceptable (it would be a new direction in public law). Additionally, it generates a risk that the court will be asked to conduct a statistical exercise to see whether there is an unacceptable risk of unfairness, which it not well equipped to do .

Commentary

  • In the earlier Court of Appeal case BF (Eritrea), the test applied by the court was is there a ‘real risk of more than a minimal number’ of individual cases being treated unlawfully.
  • The Supreme Court decided to reverse course and return to the Gillick test, finding that the present case came nowhere near that high threshold.
  • One may question whether such a high threshold is the correct approach.