What's going on behind the scenes? High Court examines use of secret policies by public bodies

In XY v Secretary of State for the Home Department [2024] EWHC 81 (Admin), the High Court held that the Government had been implementing an unlawful, secret policy of withholding certain decisions. In doing so, the Court commented on various well-established common law principles which are relevant to the use of secret policies by public bodies, and the duty of candour.

Key points

• A public body must not operate an unpublished policy which is inconsistent with its published policy.
• A public body may depart from its published policy where there are good reasons. However, the public body must inform the person affected by its decision of the departure in their case.
• The duty of candour requires parties to judicial review proceedings to lay their cards face up on the table. The Government's approach in the present case was "about as far from [this] requirement… as could be imagined."

Background

The claimant is an Albanian national and a confirmed victim of modern slavery. Under the Home Office's own published policy, as interpreted in rulings of the High Court and Court of Appeal in R (KTT) v SSHD (High Court [2022] 1 WLR 1312; Court of Appeal [2023] QB 351), the claimant was eligible for modern slavery leave to remain in the United Kingdom.

Following the rulings in KTT and in the light of a continued delay by the Home Office in determining the claimant's application for modern slavery leave, in December 2022, the claimant lodged an application for judicial review challenging the ongoing refusal to make a decision.

Documents disclosed by the Home Office showed that shortly after the High Court ruling in KTT officials were instructed not to issue decisions concerning modern slavery leave, whilst the Home Office considered the ruling's implications and sought to appeal it. The Home Office continued to withhold modern slavery leave decisions throughout the period of its unsuccessful appeal to the Court of Appeal and its application for permission to appeal to the Supreme Court, which was ultimately refused in October 2022.

Meanwhile, the Home Office's position per its published policy as interpreted in KTT was that individuals falling within the scope of KTT could be granted modern slavery leave. Documents disclosed by the Home Office showed that it was concerned about the potential political and reputational impact of changing the published policy in a way which was not compliant with the court's decision in KTT. To implement that judgment however, would have “significant operational implications".

Where an individual brought judicial review proceedings to challenge the delay in determining their application, the Home Office's practice was to try to settle the claim by granting leave, rather than explain that decisions were being held back.

The Home Office updated its published guidance to implement KTT on 16 March 2023. By that time, it had already granted the claimant leave in response to the present proceedings.

Judgment

Secret policies

The Court held that the Home Office had been operating an unlawful, secret policy which was inconsistent with its published policy as interpreted in KTT. This was in breach of certain well-established common law principles, based on the constitutional principle of the rule of law, to which public bodies are subject:

• The Lumba principle (R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 24) that a public body's unpublished policy must not be inconsistent with its published policy.
• Public bodies may depart from a published policy where there are good reasons. However, a person affected by the public body's decision is entitled to be informed by the public body that it has departed from the policy in their case.
• A person subject to an adverse decision is entitled to be informed of it before the decision can have legal effect, giving the person the opportunity to challenge it if they so wish (R (Anufrijeva) v Secretary of State for the Home Department and another [2004] 1 AC 604).

The Court noted that it had been open to the Home Office to amend its published policy to explain that until all appeal routes had been exhaused in KTT, it would not be making decisions. However, the Home Office had not done so because of political and reputational concerns. The practice of offering discretionary leave to individuals who brought judicial review proceedings strongly supported the claimant's contention that the Home Office wanted to keep its unpublished policy secret.

The Court emphasised that political and reputational concerns did not dilute the important common law principles referred to above, to which the Home Office was subject: "They may explain the defendant's actions but they can in no way excuse breaking the law."

The Home Office had sought to argue that the principle that a person subject to an adverse decision is entitled to be informed of it did not apply in this case, because it was open to the claimant and other individuals to challenge by way of judicial review the delay in dealing with their case. This was emphatically rejected by Lane J: "Where, in contrast to a decision-maker's publicly articulated stance, she has instructed officials not to make decisions, or to make them and withhold them, it is no answer at all to expect the individuals concerned to suffer the trouble and expense of having to bring legal proceedings in order to discover why the decisions are not being made or communicated."

The Court further held that the application of the secret policy to the claimant had violated various ECHR rights, including because the Government's actions were not "in accordance with the law".

Duty of candour

The Court noted that the duty of candour requires parties to judicial review proceedings to lay their cards face up on the table and that the Home Office's approach in this case had been "about as far from [this] requirement… as could be imagined". The Home Office had failed to disclose the existence of the secret policy in pre-action correspondence, and its first defence contained only a limited admission that it had paused implementation of its published policy, with no details or accompanying disclosure, and denying operating under an unlawful secret policy. The claimant's solicitors had had to resort to various other tactics in order to "laboriously…drag out" information from the Home Office. Documents were also disclosed by the Home Office in heavily redacted form, and the Court criticised the approach taken to redactions for privilege and irrelevance, the latter of which should not generally be a basis for redactions other than in limited specific circumstances. The Home Office's approach "at almost every stage, involved revealing as little as possible, and only then in response to specific requests from the other party."

Comment

For commercial organisations dealing with public bodies, whether that be Government or regulators, it is worth probing to find out whether there are particular policies or practices being employed within a public body without appropriate transparency, for example if there has been a lengthy period of unexplained delay. It is also worth pressing public bodies on their duty of candour, as this has been a topic subject to a number of decisions from the courts recently in which the courts have criticised  lack of transparency and unjustified redaction of documents from public bodies.

Public bodies should keep under review whether the policies and practices that they adopt internally are in keeping with their published policies and, where they are not, consider updating their published policies to ensure that they accurately reflect the position. Where a public body departs from its published policy in a particular case, it should ensure that it has good reasons for doing so and that the fact of the departure and the reasons for it are communicated to the individual(s) adversely affected by the decision.