The King (on the application of the Good Law Project) v The Prime Minister
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lord Justice Dingemans,Lady Justice Elisabeth Laing |
| Judgment Date | 01 December 2022 |
| Neutral Citation | [2022] EWCA Civ 1580 |
| Docket Number | Appeal No: CA/2022/001011 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1580
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lord Justice Dingemans
and
Lady Justice Elisabeth Laing
Appeal No: CA/2022/001011
Case No: CO/2912/2021
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION (DIVISIONAL COURT)
Lord Justice Singh and Mr Justice Jeremy Johnson
Royal Courts of Justice, Strand
London WC2A 2LL
Phillippa Kaufmann KC, Joseph Barrett, Rupert Paines, and Raphael Hogarth (instructed by Rook Irwin Sweeney LLP) for the Claimant/Appellant (Good Law Project)
Sir James Eadie KC, Christopher Knight and Ruth Kennedy (instructed by Government Legal Department) for the Defendants/Respondents (the Ministers)
Hearing dates: 8–9 November 2022
This judgment was handed down remotely at 10:30am on 1 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Sir Geoffrey Vos, Master of the Rolls, Lord Justice Dingemans and
Introduction
This case concerns both the duties owed in relation to public records under the Public Records Act 1958 (the PRA), and certain policies issued by Government departments in relation to the use and preservation of electronic communications. Section 3(1) of the PRA (section 3(1)) establishes a duty on “every person responsible for public records … to make arrangements for the selection of those records which ought to be permanently preserved and for their safe-keeping”.
The Good Law Project directed the court's attention to 13 guidance notes and policies (the policies) issued (but many of which were not made public) by Government departments and by the Keeper of the National Archives (the Keeper) acting under section 3(2) of the PRA (section 3(2)). It contended that most of those policies (with the exception of what came to be referred to as the Dunn note) lawfully mandated ministers and officials to use neither private emails nor private electronic communications devices and methods in undertaking Government business. It was submitted that there was uncontested evidence before the court that Ministers and officials had violated: (i) the clear injunction in the policies against the use of private emails and communications, and (ii) the policy that if, exceptionally, such communications occurred, public records containing substantive discussions in the course of conducting Government business should be transferred to, and retained on, an official Government system. The Good Law Project sought declaratory relief without specifying the terms of that relief until the second day of the hearing before us. It then made clear that it sought a declaration that eight of the policies (the eight policies) “were enforceable as a matter of public law, in that a public body subject to one or more of those policies [was] required to comply with them absent good reason not to do so”. It also sought specific declarations of unlawfulness as to 27 enumerated breaches of those policies by ministers and officials.
The issues on this appeal are: (i) whether or not the duty under section 3(1) extended to the preservation of records before they are selected, (ii) whether there was a duty to comply with the eight policies as to the use and preservation of electronic communications enforceable against the Ministers by the Good Law Project on an application for judicial review (a duty to comply with the policies), (iii) whether a note dated 23 July 2021 issued to ministers of the Department of Health and Social Care (DHSC) by its second permanent secretary Shona Dunn (the Dunn note), was unlawful, (iv) whether the Good Law Project had standing to bring this claim, and (v) whether any, and if so what, relief should be granted on this appeal.
The Divisional Court ( [2022] EWHC 960 (Admin), [2022] 1 WLR 3748) decided, in broad outline, that: (i) the duty under section 3(1) did not extend to making arrangements for the preservation of records before they were selected, (ii) the policies issued as to the use and preservation of electronic communications were not enforceable in law, (iii) the Dunn note, insofar as it can be said to have been specifically dealt with at all by the Divisional Court (and we were told that the Dunn note was not the focus of the submissions below), was not unlawful, (iv) it did not need to decide the question of standing, and (v) it should grant no relief.
The Good Law Project focused its submissions on the second issue arguing that the eight policies were legally enforceable, but it maintained its submission that the duty on “every person responsible for public records” under section 3(1) included a duty to preserve those documents before they were selected and deposited with the National Archives.
The Good Law Project submitted that the policies were prepared in the exercise of public powers, in the public interest and for the benefit of the public (see Lords Sales and Burnett in R (A) v. Secretary of State for the Home Department [2021] UKSC 37, [2021] 1 WLR 3931 ( A v. SSHD) at [2]–[3], and Mandalia v. SSHD [2015] UKSC 59, [2015] 1 WLR 4546 ( Mandalia) at [29]). A duty to comply with the policies should not be limited to classes of policy that have an impact on individual rights. There was a general public interest in having an effective operating democracy.
The Ministers submitted that none of the policies and guidance relied upon was enforceable in law based on the principles in A v. SSHD at [2]–[3] and [38]–[40]. They supported the six reasons for that conclusion which were given by the Divisional Court, namely that: (i) the policies in question “govern the internal administration of Government departments and [did] not involve the exercise of public power”; they were not, in any sense, about individual cases or the rights of an individual, (ii) the contention that the policies were legally enforceable did not sit easily with the fundamental principle of public law that guidance need not be slavishly followed, (iii) Parliament itself often sets out the extent to which policies and guidance must be taken into account by a public authority, and making such policies legally enforceable would make no sense of such provisions, (iv) there were a raft of other measures which could be taken to provide appropriate accountability (such as an Information Commissioner's investigation, a complaint to the Parliamentary Commissioner for Administration, internal disciplinary proceedings, and ministerial responsibility to Parliament), (v) the risk that, if such policies were regarded as legally enforceable, public authorities would be deterred from adopting them, and (vi) enforceable policies should be only those that are the epitome of Government policy (see R (Friends of the Earth Ltd) v. Secretary of State for Transport [2020] UKSC 52, [2021] 2 All ER 967 ( Friends of the Earth) at [105]–[107]) as is required by the principle of legal certainty.
In addition to the reasons given by the Divisional Court, the Ministers submitted that the policies were not legally enforceable because (a) they concerned the practicalities of Government communications and were attempts to provide guidance in a fast-developing technological area, where different communications methods were adopted and dropped within short timescales; that pointed towards the need for flexibility and made it inappropriate for the policies to be legally binding and for the courts to intervene; (b) if there were a duty to comply with the eight polices, it would mean that the courts would become involved in impermissible micro-management of the executive; and (c) if the statutory guidance given by the Keeper under section 3(2) was not legally enforceable, it was hard to see why guidance or policies as to an earlier stage in the process of record preservation should be.
In relation to the proper construction of the PRA, we have decided as appears below that the specific duty on “every person responsible for public records” under section 3(1) is limited in the way that the Divisional Court held it to be. The duty is only to “make arrangements for the selection of those records which ought to be permanently preserved and for their safe-keeping”, not to make arrangements for the preservation of records before they are selected. That said, however, the Keeper is empowered under section 3(2) to give, and has actually given, important guidance as to the actions to be taken in preparation for the selection process to be undertaken under section 3. Making arrangements “for the selection of those records which ought to be permanently preserved” necessarily involves considering which public records might fall into that category and what should be done in relation to such records in the period leading up to the actual selection process. Section 1 of the PRA makes this clear. When dividing responsibilities, section 1(1) provides that the Secretary of State for the Department of Digital, Culture and Sport (DCMS) shall “supervise the care and preservation of public records”. Section 1(2) provides that the Advisory Council on Public Records (now the Advisory Council on National Records and Archives (ACNRA)) shall “advise the Secretary of State on matters concerning public records in general”. We think that both the National Archives Records Collection Policy (last reviewed in October 2019) (which the Divisional Court regarded as made under section 3(2)), and the Cabinet Office and National Archives Guidance on the Management of Private Office Papers of June 2009 (which the Divisional Court...
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