United Kingdom Supreme Court

1.                  This appeal is concerned with the standards to be applied by a court when it is asked to conduct a judicial review of the contents of a policy document or statement of practice issued by the Government. We will refer to these as “policies”.

2.                  It is a familiar feature of public law that Ministers and other public authorities often have wide discretionary powers to exercise. Usually these are conferred by statute, but in the case of Ministers they may derive from the common law or prerogative powers of the Crown, which fall to be exercised by them or on their advice. Where public authorities have wide discretionary powers, they may find it helpful to promulgate policy documents to give guidance about how they may use those powers in practice. Policies may promote a number of objectives. In particular, where a number of officials all have to exercise the same discretionary powers in a stream of individual cases which come before them, a policy may provide them with guidance so that they apply the powers in similar ways and the risk of arbitrary or capricious differences of outcomes is reduced. If placed in the public domain, policies can help individuals to understand how discretionary powers are likely to be exercised in their situations and can provide standards against which public authorities can be held to account. In all these ways, policies can be an important tool in promoting good administration.

4.                  In a parallel development, and perhaps reflecting the increased importance of policies, there has been an increase in judicial review of the contents of policies. The present appeal is concerned with the standards to be applied by the courts when called upon to review the contents of policies. The policy of which the appellant seeks judicial review is the Child Sex Offender Disclosure Scheme Guidance (“the Guidance”) issued by the Secretary of State in exercise of her common law powers.

5.                  The appellant is a convicted sex offender. In March 1992 he was convicted of two offences of indecent assault on a child aged under 14 and sentenced to two years’ imprisonment. On 26 April 1996 he was convicted of three offences of indecent assault on a child under 16 and sentenced to four and a half years’ imprisonment. As a result of his offending, his name is on the Sex Offenders Register and he is subject to the notification requirements under the Sexual Offences Act 2003 for an indefinite period. He has been convicted of no further offences. The appellant has suffered violence and harassment when people have become aware of his convictions. He maintains that the Guidance is unlawful in that it does not make sufficient provision for the police to consult him before making disclosure about his offences to a member of the public who makes inquiry about him in circumstances where the appellant is in contact with children.

7.                  The Child Sex Offender Disclosure Scheme (“the CSOD Scheme”) was set up by the Secretary of State in 2010 to assist in co-ordinating the approach of police forces when asked by members of the public for information about persons dealing with children, with a view to gaining information whether they have convictions for sex offences involving children. The scheme was developed from pilot arrangements tried out in several police areas. The CSOD Scheme is set out in the Guidance, which explains the approach police forces should adopt when faced with requests for such information. The Guidance was issued by the Secretary of State in exercise of her common law powers. It has no statutory force. Police forces are free to decide whether to participate in the CSOD Scheme or not. In 2011 South Yorkshire Police, the police force for the area where the appellant lives, adopted the CSOD Scheme for their area.

8.                  The CSOD Scheme sits alongside other procedures governing the management in the community of child sex offenders who have completed their sentences and been released. Those procedures are comprised in multi-agency public protection arrangements (“MAPPA”) put in place under sections 325 to 327 of the Criminal Justice Act 2003 (“the CJA 2003”) and pursuant to statutory guidance issued by the Secretary of State under section 325(8) of that Act (“the MAPPA guidance”). The MAPPA regime is designed to secure cooperation between responsible authorities, including the police, the probation service and the prison service, in the assessment and management of risks posed by violent and sexual offenders. Under section 325(8A), MAPPA authorities are required to have regard to the MAPPA guidance when exercising their functions.

9.                  In 2008, section 327A was inserted into the CJA 2003, imposing a legal duty on MAPPA authorities to consider the disclosure of information about child sex offenders to the public. It provides:

“(1)     The responsible authority for each area must, in the course of discharging its functions under arrangements established by it under section 325, consider whether to disclose information in its possession about the relevant previous convictions of any child sex offender managed by it to any particular member of the public.

(2)       In the case mentioned in subsection (3) there is a presumption that the responsible authority should disclose information in its possession about the relevant previous convictions of the offender to the particular member of the public.

(3)       The case is where the responsible authority for the area has reasonable cause to believe that -

(a)       a child sex offender managed by it poses a risk in that or any other area of causing serious harm to any particular child or children or to children of any particular description, and

(b)       the disclosure of information about the relevant previous convictions of the offender to the particular member of the public is necessary for the purpose of protecting the particular child or children, or the children of that description, from serious harm caused by the offender.

(4)       The presumption under subsection (2) arises whether or not the person to whom the information is disclosed requests the disclosure.

(5)       Where the responsible authority makes a disclosure under this section -

(a)       it may disclose such information about the relevant previous convictions of the offender as it considers appropriate to disclose to the member of the public concerned, and

(b)       it may impose conditions for preventing the member of the public concerned from disclosing the information to any other person.

(6)       Any disclosure under this section must be made as soon as is reasonably practicable having regard to all the circumstances.

(7)       The responsible authority for each area must compile and maintain a record about the decisions it makes in relation to the discharge of its functions under this section.

(8)       The record must include the following information -

(a)       the reasons for making a decision to disclose information under this section,

(b)       the reasons for making a decision not to disclose information under this section, and

(c)       the information which is disclosed under this section, any conditions imposed in relation to its further disclosure and the name and address of the person to whom it is disclosed.

(9)       Nothing in this section requires or authorises the making of a disclosure which contravenes the data protection legislation.

(10)     This section is not to be taken as affecting any power of any person to disclose any information about a child sex offender.”

11.             As a result of these rulings, paragraph 2.2 of the Guidance was revised (in its current form, it is quoted below) and the Secretary of State inserted a new paragraph 5.5.4 into the scheme with effect from 5 March 2013. Paragraph 5.5.4 provides:

“If the application raises ‘concerns’, the police must consider if representations should be sought from the subject to ensure that the police have all necessary information to make a decision in relation to disclosure.”

Paragraph 5.5.3 of the Guidance states that an application will be one raising “concerns” where the subject has convictions for child sexual offences, other convictions relevant to safeguarding children (eg adult sexual offences or convictions involving violence, drugs or domestic abuse) or there is intelligence about the subject relevant to safeguarding children.

12.             According to the Guidance, as amended, the CSOD Scheme allows members of the public to make an application to the police about a person (the subject) who has contact with children for disclosure of information about previous convictions the subject may have and other material which might affect the safety of those children. The Guidance explains that a disclosure will only be made pursuant to the scheme if a specific child or specific children are at real risk of harm. The scheme makes provision for cooperation between police forces in relation to dealing with applications. Section 2 of the Guidance explains the aims of the CSOD Scheme. Paragraph 2.1 of the Guidance explains that the scheme does not provide for automatic disclosure of child sexual offender details to the general public, since that could encourage offenders to go missing for fear of reprisals and therefore put children at greater risk of harm. Paragraph 2.2 states:

“Under the [CSOD Scheme] anyone can make an application about a person (subject) who has some form of contact with a child or children. This could include any third party such as a grandparent, neighbour or friend. This is to ensure any safeguarding concerns are thoroughly investigated. A third party making an application would not necessarily receive disclosure as a more appropriate person to receive disclosure may be a parent, guardian or carer. In the event that the subject has convictions for sexual offences against children, poses a risk of causing harm to the child concerned and disclosure is necessary to protect the child, there is a presumption that this information will be disclosed. The basis on which disclosure decisions are made is described in detail in section 5 below (in particular, see the legal considerations in paragraphs 5.6.15 and 5.6.16). …”

13.             The Guidance reminds police decision-makers that all stages in the CSOD Scheme in respect of an application for disclosure of information should be followed. It sets out the information to be obtained from an applicant and what checks should be completed, suggests forms of wording for communications with an applicant and a subject. It makes recommendations regarding the knowledge and experience of staff undertaking the relevant stages of the decision-making process. In paragraph 2.6 the Guidance explains that the CSOD Scheme builds on existing procedures, in particular those set out in the statutory MAPPA guidance issued pursuant to section 325(8) of the CJA 2003 and the statutory duty contained in section 327A of that Act.

14.             Section 3 of the Guidance sets out the principles underlying the CSOD Scheme. Paragraph 3.3 states that no disclosures should be made to members of the public without following all the appropriate stages of the Guidance, unless there is an immediate risk of harm to a child. Paragraph 3.5 indicates that MAPPA and other safeguarding children procedures regarding making a disclosure remain unchanged and states, “disclosure must still be lawful. In particular the agencies must have the power to disclose the information (eg under the common law) and disclosure must comply with the Human Rights Act 1998 or Data Protection Act 1998.” The CSOD Scheme does not replace other arrangements, including those for Criminal Records Bureau (now the Disclosure and Barring Service) checks. Paragraph 3.8 emphasises the importance of engagement with registered sex offenders in a police force’s area to reassure them about the operation of the scheme to minimise the risk of them going underground and not complying with their supervision requirements. Section 4 of the Guidance sets out relevant definitions and explains how the CSOD Scheme works where multiple police forces are involved in considering an application (for example, where a subject is covered by MAPPA arrangements, it is stated that “the MAPPA area that owns the subject will have primacy”).

15.             Section 5 of the Guidance sets out the procedure to be followed when an application for disclosure is received:

(i)        Stage 1 is the initial contact by an applicant with the police. Guidance is given regarding the information to be sought at this stage and what an applicant should be told. Checks may be required to see if there is a need to take urgent action to safeguard a child.

(ii)       Stage 2 is a face to face meeting with the applicant to gather more information and to verify the applicant’s identity and good faith. Paragraph 5.2.9 of the Guidance provides:

“The applicant should be assured that the enquiry will be dealt with confidentially. There should however be a caveat placed on this, that confidentiality can only be guaranteed pending the outcome of the process. It should be explained that in the event of ‘concerns’ arising, the police must consider whether representations should be sought from the subject. Moreover, if a resultant disclosure is to be made to the applicant, the police must consider whether the subject of the disclosure should be informed that a disclosure has been made to that applicant.”

(iii)     Stage 3, entitled “Empowerment/Education”, involves providing information to the applicant about the operation of the CSOD Scheme and what steps they can take pending a decision on disclosure to safeguard the welfare of any relevant child.

(iv)      Stage 4 is a full risk assessment based on information provided by the applicant and derived from checks with a range of sources. Appendix D to the Guidance is a decision-making guide which police can follow. The Guidance recommends that the person who completes this stage has experience of managing sex offenders or child protection enquiries. As part of this stage, it is determined whether the application is one which raises “concerns” or not, and the decision-making process to be followed is adapted accordingly.

(v)       At stage 5 the police consider whether the application is to be categorised as one which raises “concerns” or not. It is at this stage that the police must consider if representations should be sought from the subject in accordance with paragraph 5.5.4, quoted above, before a decision is made regarding disclosure.

(vi)      At stage 6 the police consider, in a case which raises “concerns”, whether any disclosure should be made. Guidance regarding communication to the applicant is given both for cases which raise “concerns” and for cases which do not. Paragraph 5.6.13 explains that the decision whether to make a disclosure should be a multi-agency one, to be taken pursuant to MAPPA procedures for a subject covered by the MAPPA regime. A decision-making form is provided at Appendix D to guide police officers. Paragraph 5.6.14 states that decision-makers for the police “must ensure that the three stage test set out below (5.6.15) is satisfied before a decision to disclose any information is made.” Paragraph 5.6.15 sets out the three stage test as follows:

“There is a general presumption that details about a person’s previous convictions are confidential. The police will only be disclosing convictions or indeed intelligence lawfully under the [CSOD Scheme] if:

(i)        they have the power to disclose the information. If they are relying on their common law powers, the police must be able to show that it is reasonable to conclude that such disclosure is necessary to protect the public from crime. In the context of this scheme, the police would have to conclude that disclosure to the applicant is necessary to protect a child from being the victim of a crime (most probably, sexual abuse committed by the subject of the request);

(ii)       that there is a pressing need for such disclosure; and

(iii)     interfering with the rights of the subject (under article 8 of the European Convention [on] Human Rights) to have information about his/her previous convictions kept confidential, is necessary and proportionate for the prevention of crime (or in the interests of public safety or for the protection of morals or the rights and freedoms of others). This involves considering the consequences for the subject if his/her details are disclosed against the nature and extent of the risks that subject poses to the child or children. The police should also consider the risk of driving the subject to become non-compliant where he/she may pose a greater risk to other children. This stage of the test also involves considering whether further information should be sought from the subject (see paragraph 5.5.4) and the extent of the information which needs to be disclosed eg the police may not need to tell the parent the precise details of the offence for that parent to be able to take steps to protect the child.”

Paragraph 5.6.16 explains that information about a person’s previous convictions is sensitive personal data for the purposes of the Data Protection Act 1998 and that the police must therefore also be satisfied that disclosure is in accordance with the data protection principles in that Act. Paragraph 5.6.19 states that before disclosure is made consideration should be given to whether it is necessary to inform the subject that it is taking place. Paragraphs 5.6.24 and 5.6.25 make provision for the applicant to be asked to sign a confidentiality undertaking not to make further onward disclosure of information disclosed to them and, if the applicant refuses, for the police to reconsider whether to make disclosure. Paragraph 5.6.27 provides for the possibility of self-disclosure by the subject, if that is appropriate.

16.             The decision-making form appended to the Guidance, as relevant for a case which raises “concerns”, includes a section for consideration to be given to engaging the MAPPA process. It also includes a section for setting out the decision, which requires two boxes to be ticked to indicate the police staff member is satisfied that any disclosure is made pursuant to legal authority (“Common law power to disclose information about a person’s convictions where there is a need for such disclosure to protect the public from crime” and “Disclosure would not be in breach of the Human Rights Act 1998, Data Protection Act 1998 or a breach of confidence”). This section also requires an explanation to be entered for “Justification for disclosure”. This should involve consideration of what will be disclosed, to whom it will be disclosed and whether the subject is going to be informed of the disclosure, and a prompt that “[a]ll of the above must clearly state how they are lawful, necessary and proportionate”.

17.             Under the MAPPA guidance, as part of the process of managing the risk posed by an offender the relevant responsible authority must consider whether information about the offender should be disclosed to a third party. The guidance requires that “[a]ll disclosures of information about MAPPA offenders to third parties comply with the law, are necessary and are proportionate”. Paragraph 10.12 states that “[t]he likelihood and degree of harm that might arise as a result of the disclosure, including the potential impact on the offender, must be assessed. Information should be disclosed only where this is a necessary and proportionate step to protect the public …”. Paragraph 10.20 states, “[c]onsideration must be given to seeking representations from the offender before a decision is made to disclose, in order to ensure that all of the information necessary to make a properly informed decision is available. Seeking their representations should be the norm, but there might be occasions when it is not possible or safe to do so …”.

18.             The police have a general power to hold and disclose information for the purposes of performing their functions to uphold the law and protect the public. The exercise of that power is subject to various legal obligations. Those relied on in the present case are obligations arising under the common law and pursuant to the HRA.

21.             The argument in the Court of Appeal was directed to different issues, not canvassed in the Divisional Court. The appellants’ case, relying in particular on Doody, was that the disclosure by the police was unlawful because they had been treated in a procedurally unfair manner because they had not been given an opportunity to comment on material relevant to the risk they posed to the public before the decision to disclose was taken (pp 426-427). The submissions advanced by the Secretary of State were to the effect that there are cases where the duty to act fairly may make it necessary, “so as to ensure as far as possible that the police are acting on accurate information and so as to ensure the necessary degree of fairness, to afford individuals in the position of the applicants some opportunity to comment” (p 427); but this would depend on all the circumstances and there might be a range of factors which meant that the police could proceed to make a decision without doing so. The Court of Appeal endorsed this general approach, observing that “[e]ach case must be judged on its own facts” and noting that “the subject of the possible disclosure will often be in the best position to provide information which will be valuable when assessing the risk” he poses (p 428). In that case, the appellants should have been given an opportunity to comment before the police disclosed their previous convictions; no reasons had been put forward to explain why this could not have been done.

22.             Under section 6(1) of the HRA, the police, as a public authority, are obliged to act in a way which is compatible with the Convention rights of individuals as derived from the ECHR and set out in Schedule 1 to the HRA. Article 8 is relevant in this context. It provides:

“(1)     Everyone has the right to respect for his private and family life, his home and his correspondence.

(2)       There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Any interference with the right in article 8(1) must be proportionate. To respect the subject’s rights and to ensure proportionality, the police may come under an obligation pursuant to article 8 to give the subject an opportunity to make representations before a disclosure is made to a member of the public which is essentially the same as arises at common law. Again, all this is common ground and for the purposes of this judgment it is not necessary to review the relevant authorities in detail save to deal with a submission of Mr Southey QC for the appellant based on the “in accordance with the law” rubric in article 8(2).

The present proceedings

23.             The present proceedings involve a new challenge by the appellant to the Guidance. He maintains that paragraph 5.5.4 (see para 11 above) does not go far enough in giving guidance regarding the circumstances in which a police force, approached by a member of the public for information about a person about whom there are concerns in the relevant sense, is obliged in law to seek representations from the subject of the request before making disclosure of information about him. Mr Southey submits that the Guidance is unlawful because it gives rise to an unacceptable risk of unfairness and breach of article 8; does not meet the standards of clarity, predictability and accessibility inherent in the “in accordance with the law” rubric in article 8(2); and fails to provide for a subject to be able to apply to be exempted from the CSOD Scheme.

24.             The appellant is subject to the MAPPA regime, so any decision regarding disclosure of information in relation to him will be taken by the relevant MAPPA authorities, having regard to the MAPPA guidance as they are required to do under section 325(8A). The appellant accepts that the MAPPA guidance is lawful. In particular, he accepts that the statement it contains at paragraph 10.20 (see para 17 above) regarding seeking representations from the subject of a disclosure request is correct. If followed, the appellant accepts that any disclosure request relating to him should be handled lawfully.

25.             The appellant’s latest challenge to the Guidance setting out the CSOD Scheme might, therefore, have been dismissed as academic. However, there are some individuals with previous convictions for relevant offences who fall outside the MAPPA regime but are covered by the CSOD Scheme. The courts below treated this case as a suitable vehicle for the review of the Guidance and addressed the appellant’s challenge to it on its merits. We do the same.

28.             The appellant now appeals to this court with permission to rely on two grounds, namely 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 disclosure and (ii) this means that there is a significant and/or unacceptable risk of a breach of article 8 and/or the common law. Both sides made detailed submissions about the legal test to be applied on judicial review of a statement of policy such as that set out in the Guidance.

Discussion

The test for judicial review of a policy at common law: the Gillick principle

29.             Mr Southey submits that the Guidance is not sufficiently specific in the directions it gives regarding when the subject of a disclosure request should be given an opportunity to make representations before a decision is made to give disclosure. He says that this creates a risk that a decision-maker may not provide such an opportunity when required in law to do so. This is unacceptable and means that the Guidance is unlawful. Also, by reason of its general lack of specificity, Mr Southey says that some statements in the Guidance could be regarded as positively misleading.

31.             Lord Fraser set out a series of conditions to be met for a doctor’s decision to give contraceptive advice and treatment to a girl under 16 without informing her parents to be lawful. He emphasised that this meant that doctors did not have a licence to disregard the wishes of parents “whenever they find it convenient to do so” (p 174B-E). He observed that, as had been common ground in the Court of Appeal, whether a doctor who followed the guidelines in the policy would commit an offence contrary to section 28 of the Sexual Offences Act 1956 by aiding and abetting the commission of unlawful sexual intercourse would depend on the circumstances of the case and in particular on the doctor’s intentions, it being unlikely that an offence would be committed if he honestly intended to act in the best interests of the girl (pp 174H-175A).

32.             The guidelines were at a much higher level of generality than the law as stated by Lord Fraser. They referred only to the possibility that a doctor might in exceptional circumstances, according to his clinical judgment, give advice and treatment to a girl under 16 without the knowledge or consent of her parents. They did not set out guidance regarding the conditions to be satisfied, as explained by Lord Fraser. Accordingly, he was addressing the lawfulness of the policy in circumstances where it did not set out an exhaustive or detailed statement of the law (like a textbook or a judgment). It did not provide guidance which, if followed, would compel a doctor to act lawfully in every case and hence eliminate any risk that he might act unlawfully.

35.             Like Lord Fraser, Lord Scarman gave a far more detailed statement of the legal position (pp 188H-189E) than that set out in the guidance. Despite the absence of detail in the guidance, he held it to be lawful. This was on the basis that “the department’s guidance can be followed without involving the doctor in any infringement of parental right” (p 190B, emphasis added). The guidance did not lead doctors away from due compliance with their legal obligations, and this was sufficient for it to be lawful. The legal test applied was not that the guidance, if followed, must inevitably produce conduct on the part of doctors which would be lawful.

36.             Also in the majority, Lord Bridge was troubled by the basis on which judicial review could be sought of the guidance. He pointed out that it had no statutory force, was purely advisory in character and doctors were, as a matter of law, in no way bound by it; he therefore did not agree that the Wednesbury test provided an appropriate framework for the court in this context (pp 192B-193A). Instead, he explained the court’s power of review in this way: “if a government department, in a field of administration in which it exercises responsibility, promulgates in a public document, albeit non-statutory in form, advice which is erroneous in law, then the court … has jurisdiction to correct the error of law by an appropriate declaration” (p 193G). What would make the advice in the guidance erroneous in law? The claimant would have had to show that the law absolutely prohibited the prescription of contraception for a girl under 16 without parental consent or the order of the court (p 194D), which she could not do. The claimant had to be able to show that the guidance would, according to its terms, positively lead doctors to commit unlawful acts. The fact that the guidance did not give a full account of the legal conditions under which they could lawfully prescribe contraception to girls under 16 did not show that it was erroneous in the requisite sense.

37.             Lord Brandon believed that the provision of contraception to girls under 16 could never be lawful (p 199B). He did not address the legal test to be applied, since on any view the department’s guidance encouraged doctors to provide contraception to girls under 16 in some cases and would therefore be unlawful according to the approach adopted by the majority. Lord Templeman’s view was that a girl under 16 is not competent to agree to medical examination and treatment (p 204A-B, p 205B). He considered that the guidance was unlawful in stating that it was a matter for the clinical judgment of the doctor to prescribe contraception without the knowledge or consent of a parent, whereas that would constitute an unlawful interference with the rights of the parent (p 205E-F). As to the basis for intervention by a court, Lord Templeman took the same view as Lord Bridge. The guidance was defective because it contained an error of law. It was not a question whether the department was exercising a discretion in a reasonable way, “but whether by mistake of law the [department], a public authority, purports by the memorandum to authorise or approve an unlawful interference with parental rights” (p 206E-F). In substance, this approach is the same as that adopted by the majority.

38.             In our view, Gillick sets out the test to be applied. It is best encapsulated in the formulation by Lord Scarman at p 182F (reading the word “permits” in the proper way as “sanction” or “positively approve”) and by adapting Lord Templeman’s words: does the policy in question authorise or approve unlawful conduct by those to whom it is directed? So far as the basis for intervention by a court is concerned, we respectfully consider that Lord Bridge and Lord Templeman were correct in their analysis that it is not a matter of rationality, but rather that the court will intervene when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others. In that sort of case, it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way. In this limited but important sense, public authorities have a general duty not to induce violations of the law by others.

39.             The approach to be derived from Gillick is further supported by consideration of the role which policies are intended to play in the law. They constitute guidance issued as a matter of discretion by a public authority to assist in the performance of public duties. They are issued to promote practical objectives thought appropriate by the public authority. They come in many forms and may be more or less detailed and directive depending on what a public authority is seeking to achieve by issuing one. There is often no obligation in public law for an authority to promulgate any policy and there is no obligation, when it does promulgate a policy, for it to take the form of a detailed and comprehensive statement of the law in a particular area, equivalent to a textbook or the judgment of a court. Since there is no such obligation, there is no basis on which a court can strike down a policy which fails to meet that standard. The principled basis for intervention by a court is much narrower, as we have set out above.

40.             There are further reasons which indicate that this is the appropriate standard. If the test were more demanding there would be a practical disincentive for public authorities to issue policy statements for fear that they might be drawn into litigation on the basis that they were not sufficiently detailed or comprehensive. This would be contrary to the public interest, since policies often serve useful functions in promoting good administration. Or public authorities might find themselves having to invest large sums on legal advice to produce textbook standard statements of the law which are not in fact required to achieve the practical objectives the authority might have in view. Also, if the test were of the nature for which Mr Southey contends, the courts would be drawn into reviewing and criticising the drafting of policies to an excessive degree. In effect they would have a revising role thrust upon them requiring them to produce elaborate statements of the law to deal with hypothetical cases which might arise within the scope of a policy. Such a role for the courts cannot be justified. Their resources ought not to be taken up on such an exercise and it would be contrary to the strong imperative that courts decide actual cases rather than address academic questions of law.

41.             The test set out in Gillick is straightforward to apply. It calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. If the policy directs them to act in a way which contradicts the law it is unlawful. The courts are well placed to make a comparison of normative statements in the law and in the policy, as objectively construed. The test does not depend on a statistical analysis of the extent to which relevant actors might or might not fail to comply with their legal obligations: see also our judgment in BF (Eritrea).

42.             Assessed by reference to the test in Gillick, the Guidance (in the version in issue in these proceedings) is clearly lawful. It informs police decision-makers that before making a disclosure they should consider whether to seek representations from the subject. That is in accordance with, and in no way contradicts, their legal obligations under the common law and article 8 of the ECHR. The Guidance is not defective, still less unlawful, because it does not spell out in fine detail how decision-makers should assess whether to seek representations in a particular case. As in Gillick, so also in this case it was not incumbent on the Secretary of State in issuing the Guidance to eliminate every legal uncertainty which might arise in relation to decisions falling within its scope. In fact, the Guidance, including the form appended to it for recording decisions, specifically reminds decision-makers that they should satisfy themselves that a disclosure decision will satisfy the common law requirement of fairness and the requirements of article 8. Contrary to Mr Southey’s contention, when reading the Guidance as a whole no part of it can fairly be construed as giving a misleading direction.

43.             There will be cases where the application of the Gillick test for lawfulness of a policy may be less clear than it is here. The first claim brought by the appellant to challenge the Guidance is an example. In its original form, the Guidance did not tell decision-makers to consider seeking representations from a subject before a disclosure to the public, but nor did it tell them not to. However, reading the Guidance as a whole, it was clearly intended to set out for decision-makers a reasonably complete decision-making procedure to be followed, so in our view the Divisional Court was right to hold that, read objectively, it misdirected decision-makers as to how they should proceed, by implicitly indicating that they did not have to invite representations whereas in many cases they had a legal obligation to do so.

44.             The decision of the Court of Appeal in Bayer is instructive. In that case, with a view to limiting the cost of medical care, the defendant clinical commissioning groups adopted a policy on the choices regarding treatments to be offered to patients by NHS trusts for a particular eye complaint. The policy was to use so far as possible one product (Avastin) in preference to two others, on grounds of cost. However, in order to be used for this purpose Avastin had to be broken up to produce multiple doses, and in that form it was an unlicensed medicine. The claimants, who marketed the other two products, claimed that the policy was unlawful and in breach of EU law regulating the marketing of medicines. The claim was dismissed at first instance and on appeal. The Court of Appeal held that it was legally open to NHS trusts to use Avastin in its unlicensed form to treat patients with the complaint provided certain conditions were satisfied to ensure compliance with EU law and (applying the test in Gillick) held that the policy was lawful, since it was realistically capable of implementation by NHS trusts in a way which did not lead to, permit or encourage unlawful acts. The policy did not explain the conditions to ensure that the use of Avastin would be lawful, but this lacuna did not make it unlawful. Underhill LJ gave the main judgment, with which Floyd and Rose LJJ agreed. He observed (paras 198 and 202) that the lawfulness of the policy should be based on an objective construction of it and rejected the claimants’ case that it was unlawful because the policy left open the possibility of trusts seeking to implement it by unlawful methods of using Avastin, even though they could implement it using lawful methods (paras 199-200 and 205-206). We have set out above his interpretation of the word “permit” in this context, with which we agree. In our view, Underhill LJ’s assessment in relation to the policy at issue in Bayer was correct. At para 202 he made the pertinent observation that the claimants’ case could only get anywhere if the commissioning groups “were under a duty to advise trusts as to what routes were lawful, because their silence on the issue would then be a breach of that duty”, but “no basis for the existence of any such duty was identified”. Similarly, in the present case, the Secretary of State was not under a duty to issue guidance which provided a comprehensive account of how the police should comply with the legal duties to which they were subject.

45.             Rose LJ added helpful comments (para 214), with which Underhill and Floyd LJJ agreed:

46.             In broad terms, there are three types of case where a policy may be found to be unlawful by reason of what it says or omits to say about the law when giving guidance for others: (i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way (ie the type of case under consideration in Gillick); (ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and (iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position. In a case of the type described by Rose LJ, where a Secretary of State issues guidance to his or her own staff explaining the legal framework in which they perform their functions, the context is likely to be such as to bring it within category (iii). The audience for the policy would be expected to take direction about the performance of their functions on behalf of their department from the Secretary of State at the head of the department, rather than seeking independent advice of their own. So, read objectively, and depending on the content and form of the policy, it may more readily be interpreted as a comprehensive statement of the relevant legal position and its lawfulness will be assessed on that basis. In the present case, however, the police are independent of the Secretary of State and are well aware (and are reminded by the Guidance) that they have legal duties with which they must comply before making a disclosure and about which, if necessary, they should take legal advice.

48.             Letts concerned the suicide of a psychiatric patient and policy guidance regarding the circumstances in which article 2 of the ECHR (right to life) may require the grant of legal aid for the family of the deceased at an inquest. The guidance was held to be misleading as to the law, and hence unlawful, in that while mentioning some cases where there might be such an obligation it omitted to identify a further category of case where such an obligation might exist. Green J held (para 100) that the guidance should have acknowledged the full range of categories of case in which legal aid might be required, but also stated that it was not necessary for the policy to fix the exact parameters within which legal aid should be provided. The test which he applied was based on Gillick but was subject to a gloss which was derived from the summary description of that case by Richards LJ in Tabbakh which was accepted as correct by both parties (paras 114-118). Green J stated the test in this way (para 118): “[w]ould the guidance if followed (i) lead to unlawful acts, (ii) permit unlawful acts or (iii) encourage such unlawful acts?” This is a somewhat looser formulation than in Gillick itself and is capable of being misconstrued, particularly if one asks in an open-ended way whether following a policy would “lead to” unlawful acts. It then might be said that there is a general duty on the policy-maker to formulate a policy in a way which eliminates uncertainty and so could not lead a person following it to act unlawfully. Unsurprisingly, Mr Southey submitted that we should endorse Green J’s formulation, read in this expansive way. We do not agree. In our view, the relevant test is found in Gillick, without the gloss which it has been given in subsequent cases. It should be noted that the observations of Underhill LJ in Bayer (para 44 above) about the restrictive meaning of the word “permits” were made with reference to the formulation in Letts, but as we have seen this is the language used by Lord Scarman in Gillick itself and Underhill LJ’s interpretation of that word is justified by the way in which it was used in that case.

Article 8: “in accordance with the law”

49.             Mr Southey submitted that the Guidance is unlawful because it fails to comply with standards of certainty, predictability in application and accessibility which are implicit in the concept of “law” as that concept is used in the ECHR and, in particular, in article 8(2). That is because it does not specify for every case whether representations should be sought from a subject but is flexible to allow for adaptation depending on the facts of particular cases. In our judgment, this submission is unsustainable for two reasons.

50.             First, the Guidance does not purport to replace the underlying law which governs the circumstances in which a disclosure to the public may be made, that is to say (so far as is relevant for present purposes) the common law duty of fairness and the requirements inherent in article 8 itself (as applied by virtue of section 6(1) of the HRA). That includes the requirement of proportionality and the right, where appropriate, to participate in a decision-making process. These requirements are explained fully in the case law of the European Court of Human Rights (“the Strasbourg Court”) and the domestic courts. Mr Southey did not suggest that these legal regimes are defective by reference to the requirements of the concept of “law” in the ECHR. Clearly they are not. A police force which seeks to comply with its legal duties under these regimes, as the Guidance encourages it to do, will act “in accordance with the law” for the purposes of article 8(2).

54.             The analysis we have set out above is sufficient to provide the answer in the present case. The Guidance in its current form is not within any of the three categories we have described and is therefore not unlawful. The analysis also enables us to put to one side a series of other principles which in this case, in BF (Eritrea) and in other cases have been relied upon by claimants seeking to challenge the lawfulness of policies.

(i)        Tabbakh and the Refugee Legal Centre case: procedural unfairness

55.             The Court of Appeal based its decision on Tabbakh and did not refer to Gillick. Tabbakh was concerned with the lawfulness of a policy (in fact, a group of policies) governing the way in which decisions were taken regarding the imposition of special (or non-standard) conditions on a prisoner released on licence. The claimant maintained that the policy created an unacceptable risk of illegality and was for that reason unlawful. The main issue affecting the claimant, who had psychiatric problems, was that the MAPPA panel which had oversight of his case recommended that he should be required to wear an electronic tag. He maintained that had a detrimental effect on his mental health. The prison official responsible for him imposed the condition pursuant to the recommendation. His complaint about the policy was that it contained no provision for him to be given an opportunity to make representations about such licence conditions before a decision was made. Cranston J and the Court of Appeal held that article 8 had the effect that the claimant was entitled to make representations before a decision was made. On the facts, he had been given a sufficient opportunity to do this through engagement with the offender manager responsible for his case. In that way his concerns were provided to the MAPPA panel and the prison official who had to decide on the licence conditions to be imposed. However, the courts also considered his challenge to the lawfulness of the policy, notwithstanding that it was academic.

57.             Refugee Legal Centre is the foundation for this approach to review of a policy. The claimant organisation brought a challenge to a fast-track scheme for decision-making and appeals in relation to asylum claims by immigrants who fell within specified categories. The scheme was composed of policy guidance to officials and procedure rules which governed the timetable in relation to appeals for cases within the scheme. At the first stage, officials were required to conduct interviews and arrive at decisions within three days. The scheme had a degree of flexibility built into it to allow for more complex cases to be removed from it and diverted into normal, slower decision-making procedures. It was accepted that in straightforward cases the scheme was capable of operating fairly (para 6). The Court of Appeal held that the relevant question was that proposed by the defendant Secretary of State: “does the system provide a fair opportunity to asylum seekers to put their case?” and said that there would be “something justifiably wrong with a system which places asylum seekers at the point of entry [into the system] at unacceptable risk of being processed unfairly” (para 6). No reference was made to Gillick. The court upheld the decision at first instance rejecting the challenge.

58.             At para 7 the Court of Appeal said:

59.             It was common ground that officials making decisions had a duty to act fairly and that complex cases could not be dealt with fairly within the three-day window. The court did not accept the Secretary of State’s submission that the availability of an appeal against the decision of an official was sufficient to make the system fair overall, since applicants for asylum were entitled to be treated fairly at the first stage as well and, further, there would be cases where prejudice arising from unfairness due to pressure of time at the first stage would not be picked up and rectified on an appeal (para 15). The argument therefore focused on whether the scheme could operate fairly at the first stage, and in particular whether there was sufficient flexibility at that stage for more complex cases to be taken out of the scheme.

60.             As to that, at paras 16-19 the court expressed concern about the fact that no test or standard for the adaptation of the three-day timetable to individual needs had been formulated by the Home Office in its policy and that the Home Office evidence (summarised at para 12) was that officials were encouraged to adopt as flexible an approach as possible “without compromising the integrity of the process”. There was a danger that this approach would mean that officials did not in fact operate flexibly, as in law they should do, to remove individual cases from the scheme. The court was not persuaded by an assertion by counsel for the Secretary of State, without evidence to support it, that a general principle of flexibility was deeply ingrained among the relevant officials; in the court’s view it would be better for relevant factors to be set out in writing in the policy itself (para 19).

61.             However, the court was not prepared to find the scheme unlawful on this basis. At paras 20-25 it endorsed the finding of the judge that the system itself was not inherently unfair and therefore unlawful. As it said (para 23), “provided that [the scheme] is operated in a way that recognises the variety of circumstances in which fairness will require an enlargement of the standard timetable - that is to say lawfully operated - the … system itself is not inherently unfair”; the position would be made clearer if the Home Office adopted a written flexibility policy which explained that the three-day timetable was “in truth a guide and not a straitjacket”.

63.             We agree that this is a fundamental distinction for the purposes of analysis. If it is established that there has in fact been a breach of the duty of fairness in an individual’s case, he is of course entitled to redress for the wrong done to him. It does not matter whether the unfairness was produced by application of a policy or occurred for other reasons. But 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.

64.             In our view, reading the Refugee Legal Centre case in this way in line with Gillick removes the risk of misunderstanding it as stating an unprincipled and vague test. If one simply asks whether a policy creates an unacceptable risk that an individual will be treated unfairly (which is to say, unlawfully), there is a danger that this could be taken as a freestanding principle distinct from that in Gillick, as seems to have been envisaged in Tabbakh.

65.             First, it is unclear what the relationship of such a principle is with the authoritative guidance given in Gillick. If the principle were that a policy is unlawful if it creates an unacceptable risk that an individual will be treated unlawfully, that is a substantially wider principle than that stated in Gillick and inconsistent with it. There is no sound conceptual basis for separating out unlawfulness due to unfairness from unlawfulness for any other reason. Secondly, a test whether a policy creates an “unacceptable risk” that an individual will be treated unfairly or unlawfully provides no criterion of what makes a risk count as unacceptable. The distinction drawn in Tabbakh between whether a policy is inherently unfair or it just leaves a risk of unfairness arising in the ordinary course of individual decision-making is similarly unclear. A determinate criterion is required to distinguish the two cases in a principled way. Gillick supplies it. Thirdly, a test for the lawfulness of a policy based on “unacceptable risk” or the like would be a new departure in public law and cannot be regarded as an incremental extension from existing principle. On the contrary, as we have explained, in our opinion it would subvert existing principle. By contrast, if the test of inherent unfairness is applied by reference to the principle in Gillick, the law supplies a reasonably clear criterion of unlawfulness which has a sound foundation in principle. Fourthly, without such a foundation, the assertion of such a power of review by the courts, in relation to functions (the operation of administrative systems and the statement of applicable policy) which are properly the province of the executive government would represent an unwarranted intrusion by the courts into that province. Anchoring the lawfulness of policy to the principles articulated in Gillick avoids that outcome. Fifthly, if one moves away from that principled foundation, there is a risk that a court will be asked to conduct some sort of statistical exercise to see whether there is an unacceptable risk of unfairness, as was urged upon the court in the BF (Eritrea) appeal: see our judgment in BF (Eritrea) at paras 35 and 41. But a court is not well equipped to undertake such an analysis based upon experience. In principle, the test for the lawfulness of a policy should be capable of application at the time the policy is promulgated, which will be before any practical experience of how it works from which statistics could be produced. The test for the lawfulness of a policy is not a statistical test but should depend, as the Gillick test does, on a comparison of the law and of what is stated to be the behaviour required if the policy is followed. Both aspects of this test are matters on which the court is competent and has the authority to pronounce.

68.             In our view, this statement is consistent with the approach derived from Gillick which we would apply in the present case. Notably, as Lord Dyson said at point (v), the core question was whether a system which, according to the statutory power under which it was promulgated, had to be capable of allowing every case which the Secretary of State introduced into it to be determined fairly had “the capacity to react appropriately to ensure fairness”. The procedural rules did not meet that standard. In other words, a significant number of cases introduced into the system would be decided unfairly and hence unlawfully if the procedure rules were applied to them. This is in line with the principle articulated in Gillick to identify whether a policy is unlawful.

71.             Although the same test was applied to all aspects of the claim, the issue in relation to the application form might have been argued on the basis that an administrative practice (adoption of an overly complex form) had created an impediment to gaining access to legal aid and hence to court in cases where there was a right to have publicly funded assistance. That, in substance, was the effect of asking whether the form was inherently unfair in impeding access to legal aid. We address this issue in the context of our discussion of UNISON below.

75.             Mr Southey sought to rely on the Divisional Court’s formulation in this case in support of his contention that the Secretary of State had an obligation to draft the Guidance to eliminate, or at any rate reduce, any uncertainty regarding when a subject should be given the opportunity to make representations before a disclosure is made. He submits that the test to be applied in assessing the legality of a policy is whether it creates a real risk of unfairness in a more than minimal number of cases. However, to the extent that the Divisional Court’s formulation departs from the more rigorous test of unlawfulness to be derived from Gillick, it is incorrect and should not be followed. The same is true in respect of the guidance given by the Court of Appeal in BF (Eritrea). As we explain in our judgment in that case, we respectfully consider that the Court of Appeal erred in its reasoning and in its conclusion.

(ii)       The Bibi case: testing legislation and policy against Convention rights

76.             Mr Southey also sought to rely on Bibi. However, in our view, it does not support his submissions. On the contrary, this court applied what is in effect the same, narrower approach as was adopted in Gillick.

77.             Bibi was concerned with a challenge to the lawfulness of an immigration rule promulgated by the Secretary of State which required a foreign spouse or partner of a British citizen to produce prior to entry a certificate of knowledge of English to a prescribed standard, subject to certain exemptions based on age, physical or mental condition and exceptional circumstances. The claimants were British citizens whose husbands were foreign nationals residing in Pakistan and Yemen, respectively. The husbands did not have access to English tuition at affordable cost. The Secretary of State also published a policy which stated that use of the “exceptional circumstances” exemption would be rare and would not include failure to obtain tuition or take the test owing to financial hardship. The claimants’ challenge to the rule included the ground that the requirement interfered with their right to respect for family life under article 8 of the ECHR. The challenge was dismissed. This court held that in order to be compatible with article 8, the interference with family life produced by the rule and policy had to be proportionate to a legitimate objective. As regards the rule, it was accepted that it might be applied in a way that was incompatible with the article 8 rights of a British partner in an individual case, but in order to strike it down as unlawful it was held that it was necessary to show that it would be incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases: paras 2 and 60 (Baroness Hale of Richmond, with whom Lord Wilson of Culworth agreed), para 69 (Lord Hodge, with whom Lord Hughes agreed) and para 100 (Lord Neuberger of Abbotsbury). On the other hand, the court was of the view that the policy was unlawful and required amendment, because if it were followed it would inevitably result in some decisions which were unlawful in that they involved a disproportionate interference with article 8 rights: paras 53-55 (Baroness Hale), paras 73-74 (Lord Hodge) and paras 101-102 (Lord Neuberger). The test of lawfulness applied in relation to the policy, therefore, was the same as in Gillick.

81.             This is also, in effect, the question which the court asked itself in Director of Legal Aid Casework in relation to the application form, when it assessed whether the form created an unacceptable risk of unfairness in the form of preventing access to legal aid (and hence preventing access to the courts) in cases where there was an obligation to provide legal aid. With the benefit of the statement of the relevant principle in UNISON, no doubt the issue would now be formulated with more precision.

84.             We have reviewed the lawfulness of the Guidance by reference to a number of distinct principles:

(1)              According to the principle in Gillick a policy will be unlawful if it misdirects officials as to their legal obligations; but the Guidance does not do so (paras 29-48);

(2)              The Guidance is not unlawful as a result of any failure to comply with the test derived from the “in accordance with the law” rubric in article 8 of the ECHR (paras 49-53);

(3)              The Guidance is not unlawful by reference to the test of inherent unfairness discussed in Tabbakh and Refugee Legal Centre, which is to be analysed as an aspect of the Gillick principle (paras 55-75);

(4)              The Guidance is not unlawful by reference to an obligation to avoid a real risk of treatment contrary to article 3 of the ECHR as discussed in the Munjaz case (para 79 above); and

(5)              The Guidance does not create a risk of impeding access to justice and so is not unlawful by reference to the principle discussed in UNISON (paras 80-83).

85.             For the reasons we have given, which are somewhat different from those given in the Court of Appeal, we would dismiss this appeal.