A v. SSHD: Supreme Court Decides The Standards For Judicial Review Of Public Policies

Published date01 September 2021
Law FirmRichmond Chambers Immigration Barristers
AuthorZoe Bantleman

On 30 July 2021, the Supreme Court, of the same constitution, handed down two important decisions: R (on the application of A) v Secretary of State for the Home Department [2021] UKSC 37 and R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38 (covered in detail in a blog post by my colleague, Alex Papasotiriou).

In both, it was affirmed that when judicially reviewing the content of a policy document or statement of practice the court must ask whether the policy authorises, positively approves, or encourages unlawful conduct by those to whom it is directed. This narrow standard for court intervention, derived from Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, was found to be supported by the role of policies in the law, and the view that a more demanding test would be contrary to the public interest. In ex parte A it was held that if there is no obligation in public law for an authority to promulgate a policy, and no requirement that it be a detailed and comprehensive statement of law, it cannot be struck down by a court for failing to meet that standard.

Facts

In 2010, the Secretary of State implemented the Child Sex Offender Disclosure Scheme for police responses to inquiring members of the public regarding the sex-offending conviction history of persons who have contact with children. In ex parte A, the appellant sought to judicially review the Guidance, setting out this scheme, which had been issued under the Secretary of State's common law powers.

Notably, A had previously successfully challenged the Guidance in 2012 in R (X) v Secretary of State for the Home Department [2012] EWHC 2954 (Admin); [2013] 1 WLR 2638, on the basis that the Guidance did not include a requirement for police to consider whether a person should be given an opportunity to make representations to ensure the decision maker has all the information needed to make a just and fair decision regarding disclosure.

A now sought to further challenge the revised Guidance on the basis that it did not detail the circumstances in which a police force, when approached for information, is obliged to seek representations prior to disclosure. This creates a risk that a decision-maker may not provide such an opportunity, when required to do so. The grounds before the Supreme Court were that 'the Guidance is unlawful because (i) it fails to recognise and reflect the importance of consulting with people who are at risk of suffering a violation of their article 8 rights by reason of...

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