The Case of the Lost Policy – UK Constitutional Law Association9 min read
Earlier this year, in a Divisional Court judgment that garnered much attention from public lawyers, the Home Office conceded that its secret and blanket policy of seizing and downloading data from the mobile phones of all those arriving by small boats was unlawful: R (HM, MA and KH) v Secretary of State for the Home Department  EWHC 695 (Admin). Having initially denied the existence of the blanket policy as “based on anecdote and surmise” in pre-action correspondence, a position from which the government did not resile following the commencement of judicial review proceedings, the defendant belatedly accepted in advance of the hearing that such a policy did indeed operate between April and November 2020 (para 32). The defendant ultimately accepted that their position prior to this point was “inadvertently inconsistent with the duty of candour” and offered an “unreserved apology” (para 32).
This blog post does not address the detailed findings of unlawfulness (a summary of the case outcome can be found here). Rather, this post is concerned with the Divisional Court’s finding that there had been “serious problems” with the defendant’s approach to the duty of candour in the proceedings (para 40), and the court’s requirement that there be submissions on “the duty of candour question” at a further consequential hearing. That hearing has now taken place, and the corresponding judgment was made public three weeks ago.
In its Report in March 2021, the Independent Review of Administrative Law (IRAL) recommended that there “is a need to clarify the scope of the duty of candour” (para 4.130). This post draws attention to two features of the judgment in HM, MA, and KH that relate to two aspects of the duty’s application which are unclear. First, the judgment has implications for the question of when the duty of candour is engaged. Second, the judgment underlines that the defendant’s capacity to comply with the duty of candour is only as strong as the record-keeping practices that undergird the decision-making of the relevant public authority.
The duty of candour in judicial review
Judicial review proceedings take a particular approach to evidence: rather than forcing disclosure of evidence between parties, there is reliance upon the duty of candour. It requires all parties (claimants, defendant public authorities, and sometimes third parties) to be open and honest by disclosing the facts and information needed to fairly determine the issue. As this relates to defendant public authorities, there is a “very high duty on central government to assist the court with full and accurate explanations of all the facts relevant to the issue that the court must decide”: R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs (No.1)  EWCA Civ 1409 .
The type of disclosure required by parties to comply with the duty of candour will vary according to the context of the challenge. The duty will now commonly require the disclosure of “materials which are reasonably required for the court to arrive at an accurate decision”: Graham v Police Service Commission  UKPC 46 . In practice, public authority defendants regularly choose to disclose relevant documents, and indeed this is encouraged, both by the Treasury Solicitor Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings (TSOL Guidance) (para 1.2), and by the courts: R (NAPO) v Secretary of State for Justice  EWHC 4349 (Admin) .
The consequential judgment: the candour issue
In R (HM, MA, and KH) v Secretary of State for the Home Department  EWHC 2729 (Admin), the parties had agreed amongst themselves that the Home Office would pay some of the claimants’ costs on an indemnity basis given the department’s breach of the duty of candour. The Divisional Court praised this approach, terming it “wholly realistic and appropriate”, and confirmed that had it not been for this agreement, they would also have made a costs order on an indemnity basis because of the breach (para 5). As a result of the agreement reached between the parties, the consequential ruling was therefore “limited” (para 6). The Government Legal Department (GLD) investigated how the breach of candour came to be, and the court did not consider it appropriate to make findings of fact on the conduct of any individual involved with the case during judicial review proceedings. Rather, the court viewed the saga as a “failure of the Home Office collectively to comply with its duty of candour in this case”, and a “failure of governance which allowed an unlawful policy to operate for an unknown length prior to November 2020”, which saw officers responsible for the policy fail to provide clear and factual explanations of its operation to the relevant lawyers (para 10).
The judgment therefore provides a clear example of some of the means available to the courts to police and enforce consequences for failures to properly discharge the duty of candour (TSOL Guidance, para 1.6). In this instance, the court was willing to go as far as to enforce adverse costs consequences for lack of candour, though it ultimately did not have to step in to do so. Further, the court wielded its case management powers to ensure there was a thorough hearing of the “candour issue”. Given that the court did not pursue further professional sanctions, it seems that the rigmarole of the consequential hearing and judgment was considered punishment enough. This is perhaps evidenced by the court taking the unusual step of requiring its judgment order to be published on the Home Office website for 12 months, ensuring as many people as possible who may have been affected by the policy are made aware of its unlawfulness (para 52-58).
We now turn to two implications of this judgment for our understanding of the duty of candour.
When does the duty apply?
The Independent Review of Administrative Law (IRAL) Report – in its consideration of the duty of candour – noted that it was “incorrect to suggest that the duty of candour might only apply when permission for judicial review has been granted” (para 4.116). This mirrors both general practice and rules of procedure in the area. For example, a defendant who wishes to take part in the permission stage of judicial review proceedings must file an Acknowledgement of Service, and, according to Practice Direction 54A (para 6.2) this requires the provision of relevant facts and reasons regarding the decision or action being challenged in Summary Grounds of Defence. Elements of pre-action procedure therefore require engagement with the duty of candour in advance of court involvement with a claim. The TSOL Guidance takes a more expansive view, advising that the duty “applies as soon as the Department is aware that someone is likely to test a decision or action affecting them” (para 1.2). Such a position is somewhat at odds with the IRAL Report’s comment that “the duty of candour is owed to a court, so it is hard to see how the duty can arise before a court is engaged” (para 4.117). Nonetheless, there are practical reasons that underpin the Treasury Solicitor advice to public authority defendants to engage with the duty sooner.
First, the Pre-Action Protocol (PAP) process requires defendants to share “relevant information and documents” (PAP for Judicial Review , para 3(a)). Second, there will be many instances where a prospective claimant will not be able to sufficiently explain a public authority’s actions or policies, and why they are potentially unlawful, without further information from the public authority defendant. At what point the public authority engages properly with the duty therefore impacts the extent to which the parties to an application for judicial review are put on an equal footing (as required by the Overriding Objective of the Civil Procedure Rules (CPR, Part 1.2)), in an environment in which it is accepted that “the vast majority of the cards will start in the authority’s hands”: R v Lancashire County Council ex p. Huddleston  2 All ER 941, 945.
It is perhaps these practical reasons that led the Divisional Court in this consequential judgment in HM, MA, and KH to specifically endorse the TSOL Guidance approach, highlighting that they:
… proceed on the basis that that guidance accurately reflects the law. It is an obligation which the executive has assumed on the advice of the Treasury Solicitor, as it was, and the court operates on the basis that that is what is expected of Government defendants when dealing with judicial review proceedings.
R (HM, MA, and KH) v Secretary of State for the Home Department  EWHC 2729 (Admin) 
The breach of candour that gave rise to the need for this consequential judgment clearly demonstrates the ramifications of not engaging the duty early enough: it creates opportunities for misapprehensions about policy operations to take root at the heart of legal teams.
The judgment took great care to place the governance failures at the heart of these claims in context. It underlined the highly pressurised working conditions in which all were operating in responding to a complex administrative challenge under intense media and political scrutiny, against the backdrop of a complex statutory framework. Indeed, correspondence cited during the judicial review hearing referred to “daily contact from HO Ministers checking our progress”:  EWHC 695 (Admin) . It was not lost on the court that many of the events under issue took place during a global pandemic; remote working conditions were therefore likely to have exacerbated failures in communication:  EWHC 2729 (Admin) . As Wheeler notes, a possible lesson here is that “political pressure exerted on hard-pressed officials can be counter-productive”.
That context did not prevent the consequential judgment from drawing out how the failures came to occur. It is apparent that the policies in question were applied “ad hoc”, lacked clarity, and were not clearly recorded. It was therefore “more difficult than it should have been to communicate accurately and quickly what exactly those policies were” (para 13).
There is a clear link between a defendant public authority’s capacity to comply with the duty of candour, and the quality of the paper trail underpinning a policy or decision-making process under scrutiny. The duty requires the parties to disclose relevant facts and information needed for the court to fairly determine an issue before it, and it follows that the extent to which a defendant can provide a full and accurate account of the relevant decision or policy under scrutiny will turn on the availability of information tracing the details of its origin, reasoning, and application. Such a connection has been highlighted by public law practitioners before; as the Constitutional and Administrative Law Bar Association’s (ALBA) submission to IRAL’s questions on the duty of candour notes, “the solution lies not in reducing the duty of candour… but improving record-keeping” (para 95).
Record-keeping challenges will only have grown during the pandemic. In remote working conditions, where policy decisions might have been discussed, designed, or refined over private messaging platforms, what processes do public authorities have in place to ensure a paper trail is recorded? The answer to this question has implications both for a defendant public authority’s capacity to meet its duty of candour, and for its duty to preserve the public record. There is evidence that record retention guidance can vary considerably between departments (see here). This episode provides a strong example of the pitfalls of an inconsistently implemented record-keeping policy.
This case – and the operation of the duty of candour more generally – raises wider questions regarding good government decision-making practices and the changing dynamics of public law litigation. In a fast-paced policy environment and in an era of increased remote working, what level of record keeping should we expect from officials? At a time when requests for greater policy transparency are frequent in public law litigation – and the courts recently had cause to remind us that a judicial review exercise is “not a public inquiry” – just how much disclosure is enough? The duty of candour, and how it operates, is a site of wider and more fundamental contestation over questions of government transparency, maintenance of the public record, and the outer reaches of the judicial review jurisdiction itself.
The authors would like to thank Tom Hickman KC, Alison Young, and Mike Gordon for their comments and suggestions.
Dr Elizabeth A. O’Loughlin is an Assistant Professor in Public Law and Human Rights at Durham Law School. She is currently Principal Investigator on an empirical project entitled “Transparency and Judicial Review: A Study of the Duty of Candour”. The project has been funded by the Nuffield Foundation, but the views expressed are those of the authors and not necessarily the Foundation. Visit www.nuffieldfoundation.org.
Gabriel Tan is a Public Law caseworker at Wilson Solicitors LLP and author of the Administrative Court Blog (@finishedloading).
Cassandra Somers-Joce is a Visiting Lecturer at King’s College London and a current MPhil (Law) candidate at the University of Oxford.
(Suggested citation: E. A. O’Loughlin, G. Tan and C. Somers-Joce, ‘The Duty of Candour in Judicial Review: The Case of the Lost Policy’, U.K. Const. L. Blog (7th December 2022) (available at https://ukconstitutionallaw.org/))