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13 SEP 2013

High Court seeks to narrow challenges to policy

A growth area of judicial review has been challenges to policies. This is different from a challenge to an individual decision made due to a policy, or the process of creating policy. It is about whether the substance and operation of a policy is inherently unlawful.

A review of the law relating to policy challenges was recently conducted by Cranston J in R (Tabbakh) v The Staffordshire and West Midlands Probation Trust [2013] EWHC 2492 (Admin). In that case, the policy under challenge was the policy relating to how additional licence conditions would be attached to a person's licence when released from prison.

Three bases on which government policy may be unlawful were identified:

First, a policy which leads to unlawful acts will itself be held to be unlawful (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112;

Second, if a policy creates a significant risk of Article 3 violations it will be unlawful (R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58); and

Third, where a policy creates a proven risk of injustice inherent in the system itself it will be unlawful (R (Refugee Legal Centre) v Secretary of State for the Home Department [2004] EWCA Civ 1481).

It is the third category that has seen the most development in recent years. In R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1925 (Admin), Silber J held that a policy of removing people from the UK without notice was unlawful because it created an ‘unacceptable risk' or ‘a serious possibility' that the right of access to justice would be curtailed. In Tabbakh, Cranston J said that this suggested that the third category had been widened and had lowered the threshold set in the Refugee Legal Centre case.

However, Cranston J said that this wider test should be avoided. In his view, the further decision of the Court of Appeal in the Medical Justice case did not support this approach, and that the correct approach was the higher test in the Refugee Legal Centre case, ie. that the risk must be proven and must arise from a risk inherent in the system.

Cranston J said that this return to a narrower approach was justified because there will be evidential problems in challenges to policy, and so the threshold should be higher. Furthermore, there are institutional and constitutional reasons for the courts to limit their interventions in policy challenges. Especially with social and economic policies, it has long being recognised that government is entitled to a wide margin of appreciation.

As a result, Cranston J appears to have held that R (Suppiah) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) and MK v Secretary of State for the Home Department [2012] EWHC 1896 (Admin) were wrongly decided to the extent that both drew on Silber J's judgment in Medical Justice.

Cranston J's judgment in Tabbakh may make it more difficult for charities and NGOs to bring strategic judicial review claims in the future. It is clear that bold challenges to social and economic policies without proper evidence are likely to fail. To that extent, the judgment will please those in government who perceive judicial review claims as an obstruction; however, the judgment may be of concern to those who use law as a campaigning tool.

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