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

A statutory power to make delegated legislation does not generally carry an implied duty to consult where Parliament has provided no express duty and has retained a control mechanism. Later legislation will not ordinarily alter that position unless it amends or refers to the earlier scheme.

However, a decision-maker must properly recognise a significant change of policy. Failure to consult a materially affected statutory office-holder, and failure to assess the racial impact of a significant policy change, may constitute unlawful public-law errors. Delegated legislation may be quashed for procedural or substantive unlawfulness, but relief remains discretionary. Rules permitting restraint for good order and discipline were not themselves incompatible with Articles 3 or 8 of the Convention.

The claimant, a minor formerly detained in a secure training centre, challenged the Secure Training Centre (Amendment) Rules 2007. The amendments widened the circumstances in which removal from association and physical restraint were permitted by adding purposes connected with good order and discipline.

He alleged failure to consult, failure to carry out a race equality impact assessment, and incompatibility with Articles 3, 8 and 14 of the Convention. The court also considered whether, despite finding public-law errors, the Amendment Rules should be quashed.

1. Consultation. The statutory rule-making powers contained no express duty to consult. Applying BAPIO v Secretary of State for the Home Department [2007] EWCA Civ 1139, the court declined to superimpose such a duty. The Children Act 2004 created functions of promotion, advice and encouragement for the Children’s Commissioner, but did not amend or refer to the earlier rule-making legislation or confer a right to consultation. The proposed criteria for an implied duty were also insufficiently defined and predictable.
2. The Secretary of State nevertheless acted unlawfully under the Wednesbury principle by failing to recognise that the amendments effected a significant change of policy. The previous policy limited restraint and removal from association to the purposes expressly stated in the unamended Rules. The broader GOAD power was not merely a clarification. Had the change been recognised, the Children’s Commissioner would have been consulted.
3. Race equality. Section 71 of the Race Relations Act 1976 required advance consideration of racial impact where a significant policy change might be affected by racial discrimination. The failure to undertake a race equality impact assessment was therefore a breach of duty.
4. Human rights. GOAD was sufficiently certain, particularly because the Rules operated with the safeguards in the Code of Practice. The court could not rule in the abstract that future enforcement would breach Articles 3 or 8. Any actual conduct would require assessment in all the circumstances. Article 14 did not arise because Articles 3 and 8 were not engaged, and Article 14 had no independent existence.
5. Relief. The court had discretion to quash secondary legislation following either procedural or substantive unlawfulness. There was no automatic presumption for or against quashing. In light of Parliament’s informed debate, the Secretary of State’s good-faith review, and the reasonable prospect that the defects would be remedied, the Amendment Rules were not quashed.