In this summer edition of our quarterly case update, we offer a straightforward and concise overview of six public law and regulation cases from the second quarter of 2024, highlighting important points of principle 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. This edition contains some interesting cases on the application of policies:

Abandoning Windrush recommendations without consultation was unlawful

The Windrush Lessons Learned Review (the Review) was an independent assessment of the Windrush scandal to identify learnings.

R (Donald) v Secretary of State for the Home Department concerned the decision not to implement three recommendations from the Review:

  • Running a programme of reconciliation events for the Windrush community (R3).
  • Appointing a Migrants' Commissioner (R9)

  • Reviewing the Independent Chief Inspector of Borders and Immigration's role and remit (R10).

The claimant was a victim of the scandal. He challenged the decision on a number of grounds including breach of a substantive legitimate expectation that the recommendations would be implemented and a procedural legitimate expectation of consultation, indirect discrimination and breach of the public sector equality duty.

The substantive legitimate expectation argument was based on the Government's published response to the Review and an oral statement made by the Home Secretary to Parliament that she would accept the Review recommendations 'in full'.

The Speaker of the House of Commons challenged the admissibility of that statement. However, the Court considered that the case law expressed no view on using Parliamentary statements to establish a legitimate expectation and admitted it.

The Court rejected the substantive legitimate expectation argument, noting that the published response indicated that some recommendations would be subject to further deliberation. The language was carefully chosen, reflecting evolving policy areas, particularly amid diverging views about implementing certain recommendations.

Ultimately, it was for ministers to decide whether and how to implement recommendations concerning Government policy.

However, the Home Secretary did breach a procedural legitimate expectation in not consulting before making the decision. Whilst there was no explicit statement that consultation would occur, there were general indications that it would.

For example, engagement with external stakeholders was a 'consistent theme' in the published response.

The Court accepted the Home Secretary's argument that adequate consultation took place in relation to R3 but held that it had not for R9 and R10. In particular, external stakeholders (including the Review's author) were unaware that the Home Office was considering abandoning the recommendations and had no opportunity to comment on that proposal.

The Court considered that in all the circumstances it was 'conspicuously unfair' to make the decision without consultation.

The Court also held that the decision discriminated against Windrush victims. However, in relation to R3, it was a proportionate means of achieving a legitimate aim as some in the Windrush community were strongly opposed to reconciliation events. The Court considered that the matter was finely balanced and would have provoked controversy regardless of outcome.

Conversely, the discrimination in relation to R9 and R10 could not be justified because the Court could not 'safely infer' the Home Secretary's reasons for non-implementation from the available evidence.

The lack of reasons also meant that the Court could not conclude that the public sector equality duty had been discharged. The Home Secretary had not demonstrated 'due regard' to the likely benefits of implementing R9 and R10 and the adverse impacts of the decision.

Failure to follow policy in revoking a licence was procedurally unfair

In R (New Hope Care) v Secretary of State for the Home Department, the claimant company challenged the revocation of its sponsor licence, granted by the Secretary of State for the Home Department (the Home Office - HO) on 19 January 2023, which allowed it to sponsor workers not otherwise permitted to work in the UK due to their immigration status (the Licence).

On 14 August 2023, following a compliance visit on 7 August, the HO decided to suspend the Licence. The letter stated that 'full and detailed reasons' for the suspension would be provided following further investigation, and the claimant would have 20 working days to respond.

On 18 August, and without having sent full and detailed reasons for the suspension, the HO notified the claimant that as the claimant's authorising officer (AO) was absent at the compliance visit, a second visit would take place on 6 September, which the AO would need to attend.

The AO responded to explain that he could not attend this second visit, due to being detained abroad, and asked for it to be rearranged. This was agreed to by the HO.

However, without having engaged further, on 6 October 2023 the HO revoked the Licence citing alleged breaches of the requirements, including that workers' employment terms did not match sponsorship documentation.

In particular, the claimant challenged the revocation decision on the grounds that (i) it was irrational, (ii) the HO had misconstrued its own policy, and (iii) there was procedural unfairness.

The Court did not uphold the challenge on the first two grounds but allowed the claim on the third ground and held that the procedure followed by the HO was unfair for the following reasons:

  • The sponsorship scheme placed significant trust in licence-holders leading to the possibility of having relatively 'light triggers' for taking revocation action. However, this did not mean that the HO had 'more latitude' as to whether to follow the procedure set out in its published policy.

  • The HO did not explain the reasons for its concerns (even orally, during the visit) and did not give the claimant a fair opportunity to respond. Not only were these failures inconsistent with the published policy but they also amounted to a breach of the procedural legitimate expectation created by the suspension letter.

  • The HO did not provide any evidence as to why the published policy was not followed and accordingly the Court was unable to accept that not to do so was justified and proportionate. The Court noted that procedural fairness is 'at its most pressing' where serious concerns are raised about a person's conduct.

While the Court considered that some criticisms could be made of the AO for not keeping the HO better informed about his situation, including as to his plans abroad, it accepted that this did not mean the HO's decision was procedurally fair.

The Court disagreed that it was 'highly likely' the Licence would have been revoked if a fair procedure had been followed and accordingly quashed the revocation decision.

Another 'unlawful' net zero strategy from the Government

In Friends of the Earth & Others v Secretary of State for Energy Security and Net Zero, the High Court held that the Carbon Budget Delivery Plan (CBDP) – made and signed off by the Secretary of State pursuant to the Climate Change Act 2008 (the Act) and setting out the strategy for enabling the UK to achieve net zero by 2050 – was unlawful.

The CBDP essentially replaced the Government's original 'net zero strategy' which was ruled unlawful back in 2022.  

Under section 13(1) of the Act, the SoS is required to prepare proposals and policies that will enable the prescribed carbon budgets to be met (with a view to meeting the 2050 target and any other published targets). Section 13(3) states that the proposals and policies, taken as a whole, must contribute to sustainable development.

The CBDP was challenged on the grounds that the SoS had:

1.   Failed to take into account mandatory material considerations (in particular relating to policy delivery risks),

2.   Proceeded on an (incorrect) assumption that all the quantified proposals and policies would be delivered in full,

3.   Reached an irrational conclusion that the proposals and policies would enable the carbon budgets to be met,

4.   Applied the wrong legal test regarding sustainable development, and

5.   Failed to include required information in the CBDP.

The Court upheld the challenge on the first four grounds.

Having considered the first three grounds together, the Court held that the SoS was not provided with, and therefore failed to consider, the key materials on risks to the delivery of the individual policies and proposals and this led to the making of an irrational decision based on reasoning which was not justified by the evidence.

A key issue considered by the Court was the meaning and interpretation of the advice given to the SoS. The Court agreed with the claimants that a reasonable SoS would have understood the advice as meaning that the carbon budgets would only be met if all the individual policies were delivered in full and that he had proceeded on the assumption that all of the policies would be delivered in full. But that assumption was wrong and did not reflect the factual position.

The Court positively cited R (Wells) v Parole Board in which the High Court held that a decision may be irrational where there is an "unexplained evidential gap or leap in reasoning which fails to justify the conclusion reached by the public law decision-maker".

It also confirmed that such irrationality could be overridden if the SoS would have been highly likely to reach the same decision absent the assumption but that the 'very high threshold' (in section 31(2A) of the Senior Courts Act 1981) was not met in this case.

On ground four, the Court agreed that the SoS had applied the wrong legal test under section 13(3) – which required that CBDP policies 'must' contribute to sustainable development. However, the SoS' stated view was that the CBDP policies were 'likely' to so contribute. It concluded that on no reasonable view could 'likely' mean the same as 'must'.

Difficulties in challenging delay and candour again

Both R (FH) v Secretary of State for the Home Department and R (HR) v Secretary of State for the Home Department concerned significant delays in government decision-making in relation to vulnerable individuals.

Although it was concluded that she was a victim of trafficking, FH sought to challenge a delay of nearly four years in making that decision on the following grounds:

1.   It was unreasonable, discriminatory and breached the claimant's rights under the European Convention on Human Rights.

2.   There is unlawful systemic delay in the conclusive grounds decision-making process, noting the particular vulnerability of potential victims. 

3.   The SoS unlawfully failed to publish its criteria for prioritising cases for allocation to decision-makers.

FH contended that the SoS had failed to justify why he needed to await an asylum interview record and request a statement about her experiences before deciding – neither of which influenced the final decision.

The Court rejected all grounds and held that:

  • It is the SoS' responsibility to decide how to allocate resources and, although staff had decreased, the SoS had sought to productively deploy finite resources, 
  • Accepting certain cases will need to be prioritised, it is the Government's responsibility to balance complex competing public interests in doing so, and
  • It was open to the SoS to consider that the asylum interview might assist with the process and request further information.

Overall, the delay was 'highly regrettable' but 'not unreasonable or unlawful'.

R (HR) v Secretary of State for the Home Department was a challenge brought by three Afghan sisters against the SoS for not taking appropriate action to bring their family to the UK after they were separated at Kabul Airport in 2022.

While the claimants were evacuated successfully under 'Operation Pitting', their parents and brothers were not.

The claimants' solicitors requested Leave Outside the Rules (LOTR) for the other family members via email rather than the formal online application form.

Among other grounds, the claimants argued that the delay in processing the application, and in providing formal mechanisms to facilitate family reunion, was irrational, unfair and breached the claimants' right to family life under Article 8 ECHR.

The Court dismissed the claim, holding that the family could have formally applied for LOTR and any delay was the result of their refusal to do so.

In terms of putting in place formal mechanisms, it was not for the courts to dictate the timescales to which Government works or compel the prioritisation of certain matters.

In both cases, the claimants argued that the SoS had breached the duty of candour.

In FH, the SoS had failed to provide a list setting out the prioritisation of cases referred for decision until substantive disclosure following the grant of permission. The Court held that the failure to provide the list was a mistake which was corrected, with an apology, once discovered. The claimant's request that the Court require the individuals involved to formally apologise was refused – not least because the Court had no authority over civil servants.

In HR, the Court was less forgiving about the failure to disclose the content of a Ministerial submission, certain parts of which could have gone some way to answering a query raised by the claimants using a Part 18 request for information. The Court was clear that the substance of such submissions was disclosable, even in cases where the submission itself might fall outside the scope of the duty of candour.

Regulator's approach to enforcement reasonable and correct

In its ruling in R (River Action UK) v Environment Agency, the High Court dismissed a challenge brought by River Action UK on alleged failures of the Agency to take enforcement action to protect the River Wye from pollution.

River Action is an organisation that campaigns against river pollution caused by agricultural practices and sewerage discharges. The subject matter of the challenge related to the high levels of phosphorus in the River Wye – which is designated as a Site of Special Scientific Interest and a Special Area of Conservation – caused primarily by agricultural discharges into it. 

Among other things, the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (generally referred to as the 'Farming Rules') place an obligation on land managers to ensure that any application of organic manure or manufactured fertiliser to agricultural land does not lead to agricultural diffuse pollution through excessive use of the fertiliser or through such use in combination with poor weather conditions.

The Agency is tasked with the responsibility of enforcing the Farming Rules. It set out its approach to enforcement in its published policy in which it emphasised the need to act proportionately and noted that its first response would be to offer advice and guidance or issue a warning. The policy also referred to other available options and noted that prosecution would ordinarily be a last resort.

The Agency's policy and approach conformed with statutory guidance, to which the Agency is required to have regard, issued by the Secretary of State for the Environment with respect to the exercise of the Agency's functions under the Farming Rules.

River Action pursued its claim on the grounds that (i) the Agency's approach to enforcement was unlawful as it failed to set clear compliance requirements and allowed breaches to continue without limit of time, and (ii) it failed to have regard to the requirements of the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations) in undertaking its enforcement activity.

The High Court dismissed the claim on all of the grounds. In doing so it concluded that the Agency was correct in its interpretation of the Farming Rules and its approach to enforcement, and it rejected that there had been a breach of the Habitats Regulations.

With regard to enforcement responsibilities and approach, the Court emphasised that a regulator cannot decide to refuse to enforce the law for which it has enforcement responsibility but that it does have a discretion in terms of determining on how best to ensure compliance with the law, meaning that there might be a range of different acceptable reasonable ways in which compliance can ultimately be secured. 

The Court also confirmed that in considering the regulator's approach as to the exercise of this discretion, particularly when such power is given by Parliament, the Court will afford it a 'broad margin of judgment' and that the exercise of the discretionary power required consideration of the facts of each case, rather than a blind following of policy without consideration of material that might justify an exception.

The meaning of seriousness and the circumventing of Parliament

R (National Council for Civil Liberties) v Secretary of State for the Home Department was a challenge to the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (the Regulations).

The Public Order Act 1986 (the 1986 Act) gave police the power to intervene in a public protest to prevent 'serious disruption to the life of the community'.

The Police, Crime, Sentencing and Courts Act 2022 gave the SoS a 'Henry VIII' power to amend the definition of 'serious disruption' in the 1986 Act through secondary legislation.

In 2023, the Government sought to use primary legislation to change the definition of serious disruption in the 1986 Act to 'a hindrance that is more than minor'. However, that change was dropped following opposition from the House of Lords.

Instead, the Government exercised the Henry VIII power to lay the Regulations before Parliament under the draft affirmative resolution procedure (which requires explicit approval from both Chambers before becoming law). The Regulations largely mirrored the rejected definition in the 2023 Bill.

The claimant challenged the Regulations, including on the basis that (i) they were ultra vires of the 1986 Act, (ii) they subverted Parliamentary sovereignty, and (iii) the consultation before their adoption was procedurally unfair.

First, the Divisional Court considered whether the phrase 'serious disruption' could legally encompass the threshold of 'more than minor' disruption introduced by the SoS.

The Court considered the natural meaning of 'serious', the principle that Parliament would not legislate to outlaw minimal disruption, the broader context and case law on the use of 'serious' in other legislation. It also reviewed the principles of construction for Henry VIII powers and the considerations of legal certainty.

The Court concluded that 'serious' was intended to set a relatively high bar for police intervention, and 'more than minor' did not fall within the scope of its meaning. The Regulations were therefore ultra vires.

The claimant's second ground argued that using secondary legislation to introduce measures previously rejected in primary legislation undermined Parliamentary sovereignty and the separation of powers.

The Court found that in the 1986 Act, Parliament had granted a power allowing the SoS to amend definitions. The Regulations did not constitute an improper use of that power and had been approved following the required Parliamentary procedure. This ground was therefore rejected.

On the third ground, the Court rejected the argument that, in inviting comments on the proposed amendments from selected stakeholders, the SoS had not undertaken a consultation exercise to which the usual requirements applied. Those involved included law enforcement agencies but not the wider public or any organisation opposed to the changes.

The Court held that in a voluntary consultation exercise, the question of whom to consult is one of fairness rather than rationality. It noted that lowering the threshold for police intervention altered the balance between the right to protest and public order. Such changes required thorough scrutiny and debate and additional consultees (such as representative groups like the claimant) were readily identifiable. The narrowness of the stakeholder group consulted therefore rendered the exercise unfair.

For more information and guidance, contact our Public Law & Regulation team.