The Practitioner
R (on the application of C) v Secretary of State for Justice [2008] EWCA 171 (Admin), [2008] All ER (D) 111 (Feb) concerned the lawfulness of amendments made by the secretary of state for justice to the Secure Training Centre Rules 1998 (SI 1998/472). On 13 June 2007 the secretary of state, acting under powers conferred by s 47 of the Prison Act 1952 (PA 1952) and s 7 of the Criminal Justice and Public Order Act 1994, (CJPOA 1994) laid before Parliament the Secure Training Centre (Amendment) Rules 2007 (SI 2007/1709) (the Amendment Rules) which came into force on 6 July 2007. They effected amendments to rr 36 and 38 with the result that removal from association and physical restraint were rendered permissible “for the purposes of ensuring good order and discipline”, in addition to the purposes prescribed by the 1998 rules. The amendments effectively therefore allowed for a wider use of physical force to restrain minors in secure training centres.
The claimant (C) sought to challenge the lawfulness of these amendments on the grounds that:
- (i) they were vitiated by a failure to consult (with the Children's Commissioner (CC) at least); and
- (ii) the secretary of state had erred in failing to carry out a race equality impact assessment and his failure to do so amounted to a breach of the Race Relations Act 1976, s 71(1).
Human rights arguments were advanced by reference to Arts 3, 8 and 14 of the European Convention on Human Rights (the Convention).
The evidence established that, before laying the Amendment Rules before Parliament, the secretary of state had engaged in very limited consultation, involving only the Youth Justice Board (YJB) and the Directors of the Secure Training Centres (STC). The case for C was that there was a wider duty to consult by reference to statute, and/or at common law. It was said that there ought to have been consultation with the CC, Local Safeguarding Children Boards (LSCBs), Physical Control in Care (PCC), Review Panels and various NGOs which had recorded their interests.
The court rejected the submission that there was a statutory duty to consult under either PA 1952 or CJPOA 1994 for the following reasons (at para 24):
- (i) an express duty to consult could have been written into CJPOA 1994 or into the Children Act 1989. It had not. Instead, it provided the CC with powers to promote, advise and encourage and, to assist him in those tasks, it imposed an obligation on others, including the secretary of state, to provide him with appropriate information. It stopped short of providing an express right to be consulted. R (on the application of BAPIO Action Ltd) v Secretary of State for the Home Department (2007) EWCA Civ 1139, [2007] All ER (D) 172 (Nov) applied;
- (ii) the earlier legislation which self-evidently imposed no duty to consult could not take on a different meaning as a result of later legislation which neither amended nor referred to it; and
- (iii) again drawing on the BAPIO case, a statutory duty to consult could only arise in defined circumstances which could be easily understood by those upon whom the duty was imposed.
However, the court held that, in the circumstances of the case, the secretary of state's failure to consult with the CC was Wednesbury unreasonable, although his failure to consult with other parties was not. The amendments were “unhesitatingly characterised” as a significant change of policy (at para 35). For that reason, so far as consultation with the CC was concerned, the Wednesbury challenge succeeded. There was not, however, any sustainable argument in respect of legitimate expectation (at para 28).
It was common ground between the parties that, when policy changed or changed significantly, it was incumbent upon the secretary of state to ensure that the potential discriminating impact was assessed and considered. It was also common ground that there had been no such assessment or consideration in advance of the Amendment Rules.
The case for the secretary of state was that none was required because there was no change, a fortiori no significant change, in policy. That submission had already been rejected (at para 35). There was plainly was a significant change of policy and therefore the failure to carry out a race equality impact assessment in advance of such change involved a breach of duty on the part of the secretary of state.
It was submitted for C that the Amendment Rules were offensive to Arts 3 and 8 of the Convention, and, by virtue of the distinction thus created between the practice in STCs and that in Local Authority Secure Children's Homes, also to Art 14. The court held that there was no separate ground for challenge to the Amendment Rules by reference to the convention. The Amendment Rules, with the significant overlay of the Code of Practice, were not of themselves offensive to Arts 3 and/or 8. Whether conduct and/or treatment complained of in a future case would be contrary to Arts 3 and/or 8 would depend on the circumstances of the case (at para 45). Having found that Arts 3 and 8 were not engaged, Art 14 did not arise, as it had no independent existence (see Stec v UK [2005] 41 EHRR SE295).
It was not considered appropriate to quash the Amendment Rules because C was no longer at risk of action against him and the whole issue was receiving active consideration by the secretary of state in good faith within a reasonable timescale. That reconsideration would enable the legal deficits to be remedied. Moreover, the secretary of state had, since the hearing, taken steps to suspend two of the restraint techniques which were the subject of recommendations by the coroner in the inquest into the death of Gareth Myatt (see The Guardian, 20 December 2007, p 7).
