Kennedy, R (on the application of) v The Health & Safety Executive & Anor

A published administrative policy must be construed objectively from its language and context. Where a policy permits an exemption only if there is no reasonably practicable alternative, the inquiry concerns alternatives available to the particular applicant as ways of complying without the exemption. It does not require the regulator to survey facilities or operators worldwide, or to treat abandonment of a contract as an alternative. The inquiry remains relevant at both initial screening and final decision stages. A separate duty to reduce asbestos after an exemption has been granted does not govern the grant or conditions of that exemption.

Jean Kennedy sought judicial review of the Health and Safety Executive’s decision to exempt Able UK Ltd from the prohibition on importing asbestos under the Health and Safety Control of Asbestos Regulations 2006. The exemption enabled Able UK to import and dismantle the decommissioned French naval vessel Clemenceau in Hartlepool.

Mr Justice Wilkie refused permission to seek judicial review: [2008] EWHC 2313 (Admin). Laws LJ granted permission to appeal and retained the substantive application in the Court of Appeal. The central issue was whether the HSE’s published policy required consideration of alternative facilities anywhere in the world, or only alternatives reasonably available to Able UK.

Lord Justice Rix delivered the judgment, with Lord Justice Dyson and Lord Justice Jackson agreeing. The court refused judicial review.

1. Statutory framework. Regulation 27 of the Health and Safety Control of Asbestos Regulations 2006 prohibited the importation of asbestos. Regulation 32 permitted an exemption where the HSE was satisfied that the health or safety of persons likely to be affected would not be prejudiced. That statutory conclusion was not challenged. The challenge concerned the HSE’s additional policy requirement that exemptions should be granted only where there were no reasonably practicable alternative ways of complying with the statutory provision.
2. Construction of policy. The policy was to be construed objectively by reference to its language and context. The court applied the approach in Regina (Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72, [2008] 2 WLR 375, drawing on R v Criminal Injuries Compensation Board, Ex p Webb [1987] QB 74 and R (Sainsbury’s Supermarket Ltd) v First Secretary of State [2005] EWCA Civ 520. The court noted that Raissi had concluded that In re McFarland [2004] 1 WLR 1289 did not prevent the court from determining the meaning of a policy.
3. Applicant-specific inquiry. The relevant alternatives were alternatives available to the applicant itself as ways of complying without an exemption. It was not an alternative for Able UK to abandon its competitively awarded contract so that another foreign operator might undertake the work. The claimant’s construction would require the HSE to investigate potentially worldwide facilities and would impose on applicants the burden of proving a worldwide negative. The policy therefore did not require that inquiry.
4. Stages of consideration. The no-alternative test applied both at the initial screening stage and as part of the final decision under step 7. Although the HSE had suggested that the test applied only at step 1, the court rejected that limitation. On the proper construction, the answer remained that Able UK had no reasonably practicable alternative.
5. Further matters. Regulation 31(1) applied only after an exemption had been granted. It imposed an employer’s duty to reduce asbestos to as low a level as reasonably practicable and did not govern the grant or conditions of the exemption. Rix LJ also observed, obiter, that the HSE might in some circumstances consider whether foreign facilities could make importation unnecessary, but no such scenario was decided. The court did not determine the respondents’ discretionary arguments; delay alone would not have persuaded Rix LJ to refuse relief under section 31(6)(b) of the Supreme Court Act 1981.

1. Court of Appeal (Civil Division): refused judicial review in [2009] EWCA Civ 25.
2. Administrative Court, Queen’s Bench Division: Mr Justice Wilkie refused permission to seek judicial review in [2008] EWHC 2313 (Admin). Laws LJ subsequently granted permission to appeal and retained the substantive application in the Court of Appeal.