Jonathan Moffett QC and Christopher Knight in major Supreme Court judgment on policy challenges

Cases

In a landmark judgment, the Supreme Court has, for the first time in 35 years, considered the correct approach to the judicial review of policies. In R (A) v Secretary of State for the Home Department [2021] UKSC 37, the Supreme Court has revisited the proper approach to judicial reviews of policies, unanimously overruled a longstanding line of Court of Appeal authority, and rejected the test of “unacceptable risk of illegality” that the courts have to date applied.

The appeal concerned the Child Sex Offender Disclosure Scheme guidance, non-statutory guidance issued by the Secretary of State concerning the circumstances in which the police should consider disclosing information upon request to a parent or guardian about a person’s child sex offending where there is an identified risk to a particular child. The appellant, A, is a convicted child sex offender who was concerned about the possible application of the guidance to him. In particular, the appeal raised arguments about the risk of procedural unfairness of the guidance at common law and under Article 8 ECHR where the guidance did not set out a presumption of seeking representations from the subject of potential disclosure.

The Supreme Court set out that the test to be applied when assessing the legality of a policy – outside of its application to a particular case – was that to be drawn from Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The Court formulated that test as being: does the policy in question authorise or approve unlawful conduct by those to whom it is directed? There is no obligation for a policy to constitute a comprehensive statement of the law. A policy may be sufficiently congruent with the law if it identifies broad categories of case which potentially call for more detailed consideration, without particularising precisely how that should be done. In reaching this conclusion, Lord Sales and Lord Burnett CJ analysed in detail the role of polices in the law and the principled justifications for the approach taken in Gillick.

Assessed against that test, the Court held that the guidance was lawful. It was not incumbent on the Secretary of State to eliminate every potential legal uncertainty arising from the application of the guidance, the content of which was not misleading.

The Court also took the opportunity to consider, for the first time at the highest level, the R (Refugee Legal Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219 line of authority under which policies have been impugned for giving rise to an unacceptable risk of illegality. The Court held that that line of authority required considerable revision to ensure that it was consistent with the test derived from Gillick. That legal test asks where the question is whether a policy is unlawful, that issue must be addressed looking at whether the policy can be operated in a lawful way or whether it imposes requirements which mean that it can be seen at the outset that a material and identifiable number of cases will be dealt with in an unlawful way. The language of an ‘unacceptable risk’ was not a free-standing test, and would be vague and unprincipled if it were. Different, and more stringent, tests were applicable in cases concerned with risks of breach of Article 3 ECHR and cases concerned access to justice as set out in R (UNISON) v Lord Chancellor [2020] AC 869.

The judgment accordingly significantly reshapes and clarifies the proper approach to be taken to claims challenging the content of policies and will be of practical importance across all areas of public law. The judgment may be read here and the Supreme Court’s press summary may be read here.

Jonathan Moffett QC and Christopher Knight acted for the Secretary of State.
11KBW will run a seminar on the impact of the judgment in the autumn.