R v Secretary of State for the Home Department

Facts

The Secretary of State issued statutory guidance to police forces on the Child Sex Offender Disclosure Scheme, under which police may disclose information about a person convicted of sexual offences against children to a member of the public, such as a parent, where this is needed to protect a child. The guidance did not impose a requirement that the police consult the person concerned before making a disclosure in every case. A, a person subject to the scheme, challenged the lawfulness of the guidance on the basis that its failure to require consultation meant it created an unacceptable risk of procedurally unfair disclosures.

History

The challenge failed in the High Court and in the Court of Appeal. A appealed to the Supreme Court.

Issue

What is the correct test for deciding whether a policy or guidance document issued by a public authority is unlawful because of what it says or omits about the law; in particular, whether a policy is unlawful if it creates a real risk of unfairness or unlawful decisions in a more than minimal number of cases.

Held

Appeal dismissed. The guidance was not unlawful.

Ratio

• Following Gillick v West Norfolk and Wisbech AHA [1986] AC 112, a policy is unlawful only if it authorises or approves unlawful conduct by those to whom it is directed: that is, if it contains a positive statement of law that is wrong and will induce them to act unlawfully, if it purports to give a full account of the law but fails to do so in a way that presents the law as permitting what is unlawful, or if it otherwise sanctions or positively approves unlawful conduct.
• There is no general duty on a public authority to issue a policy, nor to make a policy that it does issue a complete statement of the law so as to remove any risk that those applying it will err; a policy is not unlawful merely because it creates a risk that unlawful decisions will be made in some cases.

The judgments

Key reasoning

• A policy is guidance given to decision-makers; it does not displace their obligation to act lawfully in each individual case, so the law that governs each decision, including the common law duty of fairness, continues to apply whether or not the policy mentions it.
• The court in reviewing a policy is asking whether the policy itself is unlawful, which depends on what it says, read objectively, not on how it might be misapplied; a challenge to a misapplication is a challenge to the individual decision.
• Requiring policies to be comprehensive statements of the law would be impractical, would discourage authorities from issuing helpful guidance, and has no basis in principle.
• The guidance here left the police to decide whether fairness required consultation in the particular case and did not tell them to dispense with consultation where fairness required it, so it did not sanction unlawful conduct.
• Cases concerned with systems that are inherently unfair, such as an appeals system whose structure prevents fair hearings, are different: there the unlawfulness lies in the system itself, not in a policy failing to address a risk of error.

Where it fits in the module

On challenging policies, R (A) defines the threshold for attacking a policy as such, as opposed to a decision taken under it. It should be read with Mandalia v Secretary of State for the Home Department [2015] UKSC 59 and R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 on the duty to follow published policy, and with later cases applying the Gillick test, to understand the overall structure of judicial review of policy-making and departures from policy.

Criticisms

• The narrow test may leave vulnerable individuals without an effective remedy where a policy predictably produces unfair decisions that are difficult to challenge one by one.
• Distinguishing systemically unfair systems from policies that merely risk unlawful decisions may prove unstable, since many policies operate in practice as the system within which decisions are made.
• The approach places weight on the formal content of guidance rather than on its practical effect on officials, who may treat silence in guidance as permission.