C, R (on the application of) v Secretary of State for Justice

Delegated legislation made without mandatory prior consultation or a required equality impact assessment should ordinarily be quashed. A later assessment, a prospective policy review, or Parliament’s failure to annul the instrument does not cure the executive’s unlawful process.

Physical control of detained children engages article 3 of the European Convention on Human Rights. It is permissible only where strictly necessary. A vague power to use physical control for good order and discipline, unsupported by evidence of necessity and operating amid inadequate safeguards, breaches articles 3 and 8.

The appellant challenged the Secure Training Centre (Amendment) Rules 2007, which extended the circumstances in which staff at secure training centres could remove trainees from association or physically restrain them to include ensuring good order and discipline.

The Divisional Court found that the Secretary of State had unlawfully failed to consult the Children’s Commissioner and to carry out a race equality impact assessment. It nevertheless declined to quash the Rules. It also rejected the appellant’s claims under articles 3 and 8 of the European Convention on Human Rights.

The appeal concerned whether the Rules should be quashed for those procedural failures and whether authorising physical control in order to ensure good order and discipline was compatible with articles 3 and 8.

1. Appeal allowed. The court reversed the Divisional Court and quashed the Secure Training Centre (Amendment) Rules 2007 on the procedural grounds and because they were incompatible with articles 3 and 8 of the European Convention on Human Rights.

2. Delegated legislation has no specially protected status when it has been made unlawfully. The ordinary consequence of a material procedural defect is quashing, unless pressing circumstances justify preserving the status quo. Parliament’s failure to annul the Rules could not cure the executive’s prior legal obligations. Nor could a subsequent race equality impact assessment properly substitute for an assessment that should have informed the decision before the Rules were laid.

3. The duty under section 71 of the Race Relations Act 1976 was substantial, not technical. A race equality impact assessment was an essential preliminary to a policy change affecting a population containing significant numbers of black and ethnic-minority children. The later assessment did not remove the need to mark the original failure by quashing the Rules.

4. Children held in secure training centres are detained and vulnerable. Following the principle illustrated by Selmouni v France (1999) 29 EHRR 403, physical force that is not strictly necessary because of the detainee’s conduct diminishes human dignity and in principle infringes article 3. Physical control, including restraint, was inherently capable of degrading treatment and carried serious risks.

5. The issue was not merely whether the Rules created a significant future risk that staff might act unlawfully. Unlike the neutral seclusion policy considered in R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148, the policy itself authorised physical intervention against detained children’s will. The Secretary of State had not established that physical control was strictly necessary to secure good order and discipline. The breadth of that expression, the absence of clear limits on techniques, the history of unlawful practice, and deficiencies in supervision and training reinforced that conclusion.

6. Physical control plainly interfered with private life under article 8. Good order and discipline was sufficiently certain to qualify as law, but the interference was not necessary in a democratic society for the same reasons that it failed article 3.

• Court of Appeal (Civil Division) Allowed the appeal and quashed the Secure Training Centre (Amendment) Rules 2007.
• Divisional Court (Queen’s Bench Division) Found failures to consult the Children’s Commissioner and to carry out a race equality impact assessment, but declined to quash the Rules and rejected the claims under articles 3 and 8.