Public Law Case Update ' Q4 2022

• Law Firm: Gowling WLG
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Government Contracts, Procurement & PPP, Trials & Appeals & Compensation
• Author: Mr Kieran Laird, Emma Kensett and Lara Epsley
• Published date: 08 March 2023

After a bit of a break, we are happy to say that our public law case update is making a welcome return. In this edition we offer a straightforward and concise overview of six public law and regulation cases within the last quarter of 2022 which highlight important points of relevant principles and procedure.

Our team of public law and regulation specialists examine the following cases and identify the key points which can be taken from them.

• When is a policy not enforceable?-R (Good Law Project) v The Prime Minister & Ors
• Deference and fairness in relation to the Government's policy on Rwanda - AAA and Ors v Secretary of State for the Home Department
• Delegation and unfairness where there is junior input into decision-making - Smith v Secretary of State for Levelling Up Housing and Communities & Anor
• Public body contracts and amenability to judicial review - R (Sashi Shashikanth) v NHS Litigation Authority, NHS Commissioning Board (aka NHS England)
• Stop-gap solutions by regulators - R (SSE Generation Ltd) v the Competition and Markets Authority
• A tougher approach to issuing judicial review claims in the closest court - R (Airedale Chemical Company Ltd) v HM Commissioners for Revenue and Customs

When is a policy not enforceable?

R (Good Law Project) v The Prime Minister & Ors is a Court of Appeal decision relating to the duty in the Public Records Act 1958 (the PRA) to make arrangements for the selection and safe keeping of those records that ought to be permanently preserved.

Among other things, the case concerned eight policies which forbade the use of private emails or electronic communication (such as WhatsApp) by ministers and officials, some of which were made under the PRA. When such methods are used under the policies, public records containing substantive discussions of government business should be transferred onto and retained on an official government system.

The interesting question in the case was whether those policies were enforceable by the appellant on judicial review. At first instance, the Divisional Court held that they were not and the Court of Appeal agreed.

The appellant argued that the Government was required to comply with these policies unless there was a good reason not to. The respondent countered that in order to be justiciable in public law, a decision must affect the rights of some person or body of persons and, since these policies were not public-facing, they were not enforceable.

The Court of Appeal accepted that decisions could be amenable to judicial review, even where they do not affect the rights of an individual. However, it noted that there are many types of policies and that policies are different from law and that whether or not a policy directly affects the public will be a relevant factor in deciding whether there is a duty to comply with it.

The court agreed with the Divisional Court that the policies in question were not enforceable essentially for the reasons given below:

• Firstly, the policies governed the internal administration of government departments, not the exercise of public power, and did not affect the rights of individuals.
• Secondly, it is a fundamental principle of public law that guidance does not need to be slavishly followed, and here the eight policies could not be read as a coherent whole. To follow one might mean contravening another.
• Thirdly, Parliament will normally specify the degree to which it wishes a policy made under statute to be followed. However, here Parliament had mandated compliance with policies produced under the PRA.
• Finally, there are other mechanisms to ensure appropriate accountability in this context. These include the Information Commissioner's Office, the Parliamentary Commissioner, internal disciplinary proceedings and ministers' accountability to Parliament.

The Court of Appeal stated that the types of policies that are likely to be enforceable are those that are the 'epitome of government policy', whereas the policies in this case were merely internal guidance or administrative arrangements.

Finally, it is noteworthy that the court admonished the Good Law Project on not being clear as to the relief it sought. It stated that if a claimant is unable or unwilling to particularise the relief it seeks, this may indicate that the claim should not be pursued.

Deference and fairness in relation to the Government's policy on Rwanda

AAA and Ors v Secretary of State for the Home Department concerned the Government's policy that...