Public Law Case Update ' Q3 2023

• Published date: 20 November 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Retirement, Superannuation & Pensions, Trials & Appeals & Compensation
• Law Firm: Gowling WLG
• Author: Mr Kieran Laird, Emma Kensett and Lara Epsley

In this November 2023 edition of our quarterly case update, we offer a straightforward and concise overview of six public law and regulation cases from the third quarter of 2023 - all of which highlight important points of principle and procedure.

Gowling WLG's team of public law and regulation specialists examine the following cases and identify the key points that can be taken from them. In particular, this quarter featured a number of interesting cases on policies, which can be found at the beginning of our list:

• Public sector equality duty does not have extraterritorial effect - R (Marouf) v Secretary of State for the Home Department
• An insufficient voluntary consultation or an appeal for information? - R (Secretary of State for Work and Pensions) v Eveleigh
• Ambitious statutory duty? Helpful guidance on identifying whether a duty is a 'target duty' or an 'achievement duty' - R (AA) v National Health Service Commissioning Board
• Stale consultation - R (Associated Society of Locomotive Engineers and Firemen & Anr) v Secretary of State for Business and Trade
• Apparent bias where a decision-maker has an ongoing relationship with a party - Suleman v General Optical Council
• Ten principles on the duty of candour - R (Police Superintendents' Association) v The Police Raemuneration Review Body and Anr

Public sector equality duty does not have extraterritorial effect

In R (Marouf) v Secretary of State for the Home Department, the Supreme Court confirmed the public sector equality duty (PSED) at section 149 of the Equality Act 2010 (EA 2010) does not have extraterritorial effect. This means that those with no connection to the UK cannot challenge a decision by alleging a breach of the PSED by a UK public body.

The appellant was a Palestinian refugee, living in Lebanon. She wished to come to the UK under the Vulnerable Persons Resettlement Scheme (the Scheme), which provides emergency sanctuary for vulnerable displaced refugees.

The Scheme is implemented by the Secretary of State (SoS) who relies on the UN High Commissioner for Refugees (UNHCR) to identify and recommend refugees for resettlement in the UK. Palestinian refugees are outside of the remit of the UNHCR because they are covered by another UN organisation (United Nations Relief and Works Agency (UNRWA)), which has no mandate to resettle refugees in a third country. Therefore Palestinian refugees cannot participate in the Scheme.

The main ground was that the SoS failed to comply with the PSED, particularly s149(a) requiring due regard to the need to advance equality of opportunity for those sharing a relevant protected characteristic (i.e. Palestinian refugees), as compared with those not sharing it (i.e. other refugees).

At first instance, the Court was bound by previous authorities to find extraterritorial effect. The Court of Appeal allowed the SoS' appeal and granted permission to appeal to the Supreme Court.

The appellant argued that all of s149 had extraterritorial effect, or alternatively, that it had extraterritorial effect co-extensively with the limited extraterritorial effect of s29 EA 2010, identified by the Court of Appeal. Although that claim has since been dismissed on the facts by that Court.

The Supreme Court noted the well-established presumption against the extraterritorial effect of legislation, unless a contrary intention appears. It rejected the argument that the presumption had been softened and would only arise in certain cases, e.g. to protect comity between nations.

In response to criticisms that extraterritoriality would place an impracticable burden on decision-makers, the appellant argued that for s149 the effect would be limited in many cases as nothing could realistically be done in pursuance of the PSED. The Court rejected this on the basis that if little useful purpose was served in most cases, it was less (not more) likely that Parliament intended extraterritorial effect.

The Supreme Court held that the reasoning in previous authorities was flawed. Nothing in the legislation rebutted the presumption. Indeed, the difficulty in considering the goals in s149 in respect of persons overseas (e.g. to 'eliminate unlawful discrimination...') suggested otherwise.

However, in certain overseas cases factors mirroring those in s149 might be 'so germane' to the decision that the public body must take account of them under ordinary judicial review principles.

In respect of the alternative argument, the Court held that the PSED is primarily directed at policy decisions, rather than the application of policy to individual cases. Decisions applying the Scheme (but not this decision) fell within the territorial extension at...