R (WL (Congo)) v Hong Secretary [2011] UKSC 12; [2012] 1 AC 245

Key point

  • The rule of law requires that policy be transparent to the public, thus applying an unpublished policy contrary to the published policy is unlawful

Facts

  • Between April 2006 and 9 September 2008 the Home Office published a policy on detention of foreign national prisons which said that in cases of immigrants detained and waiting to be deported, there was a presumption in favour of release, although detention might be justified in some circumstances
  • However, the Home Office instead followed a quite different unpublished policy which was described as a “near blanket ban on release”: [5]
  • Applicants, prisoners who had been detained under the unpublished policy, brought judicial review against the unpublished policy and sued under the tort of false imprisonment

Held (Supreme Court)

  • The policy was unlawful
  • The tort of false imprisonment applied, without the need to prove damages, even if they would have been imprisoned anyway had the power been exercised lawfully

Lord Dyson

On the legality of the policy

  • “The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised”: [34]
  • “The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute…There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it”

On the tort of false imprisonment

  • “To summarise, therefore, in cases such as these, all that the claimant has to do is to prove that he was detained. The Secretary of State must prove that the detention was justified in law. She cannot do this by showing that, although the decision to detain was tainted by public law error in the sense that I have described, a decision to detain free from error could and would have been made”: [88]
  • “…it is inevitable that the appellants would have been detained. In short, They suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages”: [95]

Lord Phillips, Lord Brown and Lord Rodger (dissenting)

  • The dissenting justices held that the Secretary of State is not liable to them in false imprisonment because a reasonable decision-maker, applying a lawful policy, would have detained the appellants
  • “If the facts are that no reasonable decision-maker applying the published policy could have done other than reach the decision which the decision-maker arrived at, the fact that he published a more expansive, but unpublished, policy when reaching his decision will not invalidate that decision”: [333]