The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The correct test for judicial review of a policy

5 August 2021

R (on the application of A) v Secretary of State for the Home Department [2021] UKSC 37

The Supreme Court heard a challenge to the Secretary of State’s Guidance to the Child Sex Offender Disclosure Scheme (“the Guidance”). The Guidance is designed to co-ordinate the approach taken by police forces when members of the public ask for information about individuals dealing with children.

The Appellant, a registered sex offender, previously succeeded in having the Guidance amended. The police are now required to consider whether an offender might like to make representations about a possible disclosure. In this challenge, the Appellant argued the amended Guidance did not go far enough. He submitted the Guidance was not sufficiently certain for the purposes of Article 8(2) ECHR because it does not specify every case in which representations should be sought from offenders.

The Supreme Court dismissed the appeal and made the following important points which are applicable to the judicial review of any policy:

1. The correct test to be applied is whether the policy actively authorises or approves unlawful conduct (i.e. the test in Gillick). It is not ordinarily enough that a policy is silent about unlawful conduct.

2. A policy might be unlawful because:

a. It gets the law wrong, thereby inducing its audience to break the law;

b. It omits to explain the law. This ground of challenge can only succeed where the authority is either obliged to provide an accurate account about the law or where it purports to do so;

3. The courts will intervene because authorities have a duty not to induct others to break the law. Wednesbury rationality is not the principles basis of intervention.

4. If the courts were to critique policies too harshly then authorities might be disincentivised from producing helpful Guidance.

5. Article 8(2) does not require policies to be completely free from doubt, as this is impossible.

This case has ramifications for a wide-range of policies, including those relating to police disclosure. Defendants can take heart from the robust test applied by the court to judicial reviews of policies. As the Supreme Court said, policy documents are not (normally) written like a legal textbook – and nor should they be.

Further reading

R (A) v SSHD

Gillick and West Norfolk and Wisbech Area Health Authority v DHSS

The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.

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