R (C (A Minor)) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Date | 2009 |
| Year | 2009 |
| Court | Court of Appeal (Civil Division) |
Children - Young offender - Secure training centre - Rules permitting physical restraint of secure training centre trainees for purpose of good order and discipline - Whether inhuman and degrading treatment - Whether infringing Convention right to respect for private life -
Secure training centres were established by the Criminal Justice and Public Order Act 1994 for the purpose of detaining young persons between the ages of 12 and 17 who had been sentenced to or remanded in custody. Rule 38(1) of the Secure Training Centre Rules 1998 provided that no one detained in a secure training centre should be physically restrained save where necessary for the purpose of preventing him from escaping from custody, injuring himself or others, or damaging property. In June 2007 the Secretary of State for the Home Department laid before Parliament the Secure Training Centre (Amendment) Rules 2007, rule 2 of which amended rule 38(1) of the 1998 Rules by providing that a trainee could also be physically restrained for the purpose of ensuring good order and discipline. The Rules were debated in the House of Lords which did not resolve to annul them and they took effect by virtue of the negative resolution procedure. The claimant, who at the time was a trainee at a secure training centre, sought judicial review by way of an order to quash the 2007 Rules on the grounds that the Secretary of State had unreasonably failed to consult with the Children’s Commissioner for England and had failed to carry out a race equality impact assessment, as required by section 71(1) of the Race Relations Act 1976, as substituted, before laying them before Parliament, and that those Rules infringed articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Divisional Court of the Queen’s Bench Division held that the 2007 Rules were unlawful on the procedural grounds but not on the grounds of breach of Convention Rights. The court in the exercise of its discretion determined that it would not be appropriate to quash the 2007 Rules in the light of the facts that Parliament had been aware of the lack of consultation and that a wide-ranging review of the use of physical restraint in secure training centres that had been commissioned by the Secretary of State was due to report in two months’ time.
On the claimant’s appeal—
Held, allowing the appeal, (1) that, although the court had discretion on a claim for judicial review to withhold relief if there were pressing reasons for not disturbing the status quo, delegated legislation which was held to be ultra vires had no specially protected position in that respect and there was no principle that it would only be quashed in special circumstances; that, rather, it was more important to correct unlawful legislation, which until quashed was universally binding, than it was to correct a single decision which affected only a limited range of people; that neither Parliament’s failure to disapprove the 2007 Rules nor the fact that the wide-ranging review was due to report could remedy the Secretary of State’s failure to perform the legal obligations which he had been required to fulfil before laying the 2007 Rules before Parliament; that, therefore, the Divisional Court should have quashed the 2007 Rules; that although a race equality impact assessment had since been carried out and the wide-ranging review had since reported, the failure to produce a race equality impact assessment before laying the 2007 Rules before Parliament was a defect of very great substantial importance which should be marked by an appropriate order; and that, accordingly, the rule of law and the proper administration of race relations law required that the 2007 Rules be quashed (post, paras 41, 45–48, 50, 54–55, 83, 84, 85, 86, 87).
(2) That, in permitting the physical restraint of trainees for the purpose of ensuring good order and discipline, the amendments effected by the 2007 Rules by their very nature engaged article 3 of the Convention; that, since the Secretary of State could not establish that such restraint was necessary for that purpose, the 2007 Rules breached the right not to be subjected to inhuman or degrading treatment guaranteed by article 3, and the right to respect for private life guaranteed by article 8; and that, accordingly, the Rules should be quashed on those grounds as well (post, paras 64, 68, 78–79, 80, 82–83, 84, 85, 87).
Per Keene LJ. A finding that delegated legislation is ultra vires should normally lead to the legislation being quashed. Only in unusual circumstances would a court exercise its discretion to allow such legislation to remain in force (post, para 85).
The following cases are referred to in the judgment of Buxton LJ:
Associated Provincial Picture Houses Ltd v Wednesbury Corpn [
Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [
R v Secretary of State for Health, Ex p United States Tobacco International Inc [
R v Secretary of State for Social Services, Ex p Association of Metropolitan Authorities [
R (BAPIO Action Ltd) v Secretary of State for the Home Department
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)
R (Elias) v Secretary of State for Defence
R (Munjaz) v Mersey Care NHS Trust
R (R) v Durham Constabulary
R (Williamson) v Secretary of State for Education and Employment
Selmouni v France (
Steel v United Kingdom (
The following additional cases were cited in argument:
A v United Kingdom (
Al-Adsani v United Kingdom (
Anisminic Ltd v Foreign Compensation Commission [
Attorney General v Guardian Newspapers Ltd [
Bensaid v United Kingdom (
Boddington v British Transport Police [
Bugg v Director of Public Prosecutions [
Caloc v France (
Corsacov v Moldova (Application No 18944/02) (unreported) given 4 April 2006,
Costello-Roberts v United Kingdom (
Crédit Suisse v Allerdale Borough Council [
Fogarty v United Kingdom (
Handyside v United Kingdom (
Hashman and Harrup v United Kingdom (
Howker v Secretary of State for Work and Pensions
Kucheruk v Ukraine (Application No 2570/04) (unreported) given 6 September 2007,
McFeeley v United Kingdom (
Malone v United Kingdom (
Matko v Slovenia (
Olsson v Sweden (
R v Board of Visitors of Highpoint Prison, Ex p McConkey
R v Deputy Governor of Parkhurst Prison, Ex p Hague [
R v Hull University Visitor, Ex p Page [
R v Secretary of State for Foreign and Commonwealth Affairs, Ex p World Development Movement Ltd [
R v Wicks [
R (Gillan) v Comr of Police of the Metropolis
R (Howard League for Penal Reform) v Secretary of State for the Home Department
R (Laporte) v Chief Constable of Gloucestershire Constabulary
Raninen v Finland (
Ribitsch v Austria (
Silver v United Kingdom (
Smith v East Elloe Rural District Council [
Sunday Times v United Kingdom (
Tomasi v France (
Vasilev v Bulgaria (Application No 48130/99) (unreported) given 12 April 2007,
Vogt v Germany (
Z v United Kingdom (
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