I-Cd Publishing Ltd. v Secretary of State

Consultation in the formulation of subordinate legislation does not require the Government to consult every person potentially affected, nor to advise a consultee how to achieve compliance. The court considers whether consultation was lawful in its statutory and practical context, including whether representations could realistically have altered the outcome.

A claimant challenging national regulations must act promptly. Delay may be especially significant where the challenge concerns an alleged breach owed specifically to the claimant and there is no wider public importance justifying an extension.

A civil court will ordinarily refuse a declaration about the criminality of proposed future conduct. Such relief is confined to truly or very exceptional cases. A proposed business model involving fact-sensitive compliance questions did not qualify.

I-CD Publishing Ltd operated a low-cost identity-verification and credit-reference service based on the full electoral register. It challenged regulation 114 of the Representation of the People (England and Wales) Regulations 2001, as amended, alleging failure to consult, irrationality and inadequate reasons.

I-CD also sought declarations that a proposed restructuring of its business would fall within the regulation and would not expose its directors and staff to criminal liability. The central issues were whether the consultation was lawful, whether regulation 114 irrationally excluded I-CD, whether the claim was brought promptly, and whether declaratory relief concerning prospective criminality was available.

1. Judicial review claim dismissed. The consultation challenge failed. After Robertson No 1, the Government had no realistic prospect of permitting substantially wider uses of the full electoral register. Direct consultation with I-CD could not have changed that position, and the consultation exercise in May and June 2002 was lawfully devised and conducted. Consultation did not require the Secretary of State to enter a dialogue advising I-CD how to qualify under the proposed regulation. The court would in any event have been disinclined to grant relief because of I-CD’s culpable delay and conduct.
2. The proceedings were not brought promptly for the purposes of CPR Part 54.5. The period between the making of the Regulations and I-CD’s alleged discovery of them could not be discounted. The court declined to hold the promptness requirement incompatible with Article 6 of the ECHR and found no sufficient public importance to justify extending time.
3. Regulation 114 was not irrational. The requirement that an applicant be carrying on the business of providing credit reference services applied when it requested the full register, not necessarily when the regulation came into force. The regulation was neutral as to the number of eligible agencies. It did not create a monopoly, duopoly or oligopoly, since I-CD or another company could alter its business and establish eligibility.
4. The court approached the Regulations with appropriate deference because they represented legislative provision approved by Parliament in a socio-economic context involving competing interests. The reasons challenge therefore added nothing after the consultation and irrationality grounds failed.
5. Declaratory relief concerning I-CD’s proposed future conduct was refused. Imperial Tobacco Ltd v Attorney General established that declarations concerning future criminality would be appropriate only in a very exceptional case. Later authorities, including Rusbridger and Toynbee v Attorney General, described the jurisdiction as normally unavailable, subject to truly exceptional cases where the interests of justice unusually required an advance ruling. I-CD’s proposed business model was fact-sensitive and did not meet that threshold.