Child Poverty Action Group, R (on the application of) v Secretary of State for Work and Pensions

A public authority must comply with a procedural duty imposed by primary legislation, even where the executive considers that a different policy would be preferable. A deliberate failure to establish a statutory body, and therefore to obtain advice which Parliament required before publication of a strategy, may invalidate the authority to produce that strategy. Whether non-compliance has that consequence depends on statutory construction and the importance of the requirement.

Where legislation uses ordinary evaluative language, the court should not impose a quantitative or other judicial gloss. The decision-maker’s judgment is reviewable only for irrationality. The court may grant declaratory relief where a procedural breach is established but a quashing order would no longer be appropriate because the statutory scheme has subsequently changed.

The claimant sought judicial review of a child poverty strategy published by the Secretaries of State for Work and Pensions and Education. The challenge concerned the strategy published on 5 April 2010 under the Child Poverty Act 2010.

The claimant argued that the strategy was unlawful because the Secretary of State had not obtained advice from the Child Poverty Commission as required by section 10(1), and because it did not satisfy the requirements for a UK strategy under section 9(7). The Commission had deliberately not been established while the Government pursued legislative changes to replace it. The court also had to determine the appropriate remedy, particularly after section 10(1) had been repealed by the Welfare Reform Act 2012.

1. First ground allowed. The deliberate decision not to establish the Child Poverty Commission meant that the Secretary of State could not request its advice before preparing the strategy. This was a clear breach of section 10(1) of the Child Poverty Act 2010.

2. The executive could invite Parliament to change primary legislation, but it could not pre-empt Parliament by acting as though the existing statutory scheme had already been amended. Ministers were not entitled to ignore the statutory requirement merely because they intended to establish a different commission.

3. The requirement to obtain advice was an important procedural safeguard. The statutory scheme contemplated an independent body with relevant expertise and publication of its advice, so that Parliament would have the benefit both of the strategy and of the Commission’s report. Applying the approach in R v Soneji [2006] 1 AC 340, the breach went to the vires to produce the strategy.

4. Second ground rejected. Section 9(7) used ordinary words requiring judgment and application. The court should not add a quantitative requirement, impose interim targets, or treat “strategy” and “progress” as terms of art. The Secretary of State’s assessment that the document constituted a strategy was reviewable only on ordinary irrationality principles. It was not irrational.

5. Remedy. A quashing order would have been inappropriate because section 10(1) had been repealed and the original Commission would not exist. The court therefore granted a declaration that, in producing the strategy, the Secretaries of State did not discharge the section 9(1) duty because the duties in sections 10(1) and 10(3) had not been complied with. There was no order as to costs.

First-instance judicial review. Permission was granted by Mr Justice Bean on 11 November 2011. The claim was determined by Mr Justice Singh in the Administrative Court.