Raabe, R (on the application of) v Secretary of State for the Home Department

A public appointing authority may require applicants to disclose personal or professional matters which could reasonably affect suitability for appointment or the effective functioning of the public body. Where an applicant fails to disclose a materially relevant matter, the original appointment may be treated as invalidated and revoked. The authority may consider whether the matter could undermine confidence in the body’s advice, impair its ability to work with relevant communities, or generate serious disruption. The decision must, however, rest on relevant considerations and follow a fair opportunity to respond. The protection of religious belief does not prevent an authority from considering publicly expressed, offensive or polemical material relevant to suitability. Article 9 does not confer a right to manifest religion in any office or context of the holder’s choosing.

Dr Hans-Christian Raabe, a general practitioner, was appointed as an unpaid member of the Advisory Council on the Misuse of Drugs under the Misuse of Drugs Act 1971. After the appointment, the Home Office discovered that he had co-authored a 2005 paper concerning homosexuality, same-sex marriage, paedophilia and family life. The paper had not been disclosed during the application or interview process.

Following correspondence and a telephone discussion, the Minister revoked the appointment on the grounds that the non-disclosure raised issues of judgment and that the paper could undermine Dr Raabe’s credibility to provide balanced advice on drug misuse affecting the LGBT community and impair the Council’s functioning. Dr Raabe sought judicial review on grounds of irrelevant considerations, irrationality, procedural unfairness and lack of power to revoke the appointment.

1. The claim was dismissed. The Minister was entitled to revoke the appointment.
2. The statutory role of the ACMD required it to maintain a balanced and objective evidence base and to obtain the co-operation and confidence of the LGBT community, which had particular patterns of drug misuse. It was reasonably open to the Minister to conclude that the paper’s polemical and disparaging presentation could undermine confidence in the Council, affect the credibility of its advice and cause internal or public disruption.
3. The standard interview question about matters which might cause embarrassment or disrepute was reasonable. It addressed the information asymmetry between an applicant and the appointing authority. The paper was a relevant matter which should have been disclosed. If its disclosure could reasonably have led to refusal of the original appointment, its later discovery could justify revocation.
4. The challenge based on irrelevant considerations failed. The evidence did not establish that the Minister’s equality role, the Home Office’s employment reputation, political embarrassment, or the mere inconsistency of Dr Raabe’s views with Government views formed part of the operative decision. The relevant concern was the paper’s manner and content and its consequences for the ACMD’s work.
5. The decision was not irrational. The court expressed no view on the merits of same-sex marriage or the underlying opinions. It held only that the Minister was entitled to regard the paper as a non-balanced opinion piece which presented contentious assertions as fact and was likely to cause grave offence.
6. There was no procedural unfairness. Dr Raabe was told that the paper’s content and non-disclosure were under consideration, was questioned about his authorship and views, and received a further letter inviting representations before the decision. His proposed answer that he would treat LGBT people equally had been considered but did not answer the concern about the likely effect of the paper on the community’s confidence in the ACMD.
7. The Article 9 argument failed. The decision did not prevent Dr Raabe from holding or expressing his views or practising as a GP. Even if the paper had manifested religious belief, Article 9 did not require that belief to be manifested in an office or setting of the claimant’s choosing.