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

The claimant, a general practitioner appointed to the Advisory Council on the Misuse of Drugs (ACMD), sought judicial review of the Secretary of State's decision to revoke his appointment after media attention revealed his co-authorship of a 2005 paper addressing homosexuality and same-sex marriage. The court considered the conventional public law grounds: procedural fairness (natural justice), taking into account irrelevant considerations, irrationality (Wednesbury review), and whether the minister lacked power to revoke absent contractual breach. The judgment emphasised that candidates for sensitive public appointments must disclose matters that could cause embarrassment or undermine the effectiveness of the body, applying the Commissioner for Public Appointments guidance and the Nolan Principles.

The judge found that the department had given the claimant opportunities to respond (telephone interview, a 'minded to reconsider' letter and time to reply), that officials and ministers legitimately considered whether the paper's tone and content were polemical and likely to undermine the ACMD's ability to work with the LGBT community, and that non-disclosure of a material consideration (the paper and its contents) genuinely bore on suitability for appointment. The court rejected arguments that the decision was driven by irrelevant political or equality considerations, that it was irrational, or that it breached Article 9 rights. The claim for judicial review was dismissed.

The claimant, Dr Hans-Christian Raabe, was appointed as an unpaid GP member of the Advisory Council on the Misuse of Drugs from 1 January 2011. Shortly after appointment, media reports revealed that he had co-authored in 2005 a paper critical of same-sex marriage and containing material linking homosexuality and paedophilia and asserting other contested propositions. The Home Office had not been aware of the claimant's authorship at interview; the claimant had been asked at interview whether anything in his personal or professional history might cause embarrassment or disrepute and had not disclosed the paper.

The department investigated after press attention, obtained the claimant's confirmation that he was a co-author, questioned whether he stood by the paper and whether its contents might affect his contribution to ACMD work relevant to the LGBT community, and gave the claimant an opportunity to make written representations. Ministers concluded that (i) the paper was polemical in tone and assembled material in a way which disparaged gay people and their lifestyles, (ii) the emergence of his authorship raised concerns about his credibility to provide balanced advice on drug misuse matters affecting the LGBT community and could impact on the smooth running of the ACMD, and (iii) his failure to disclose the paper at interview raised issues of judgment. Accordingly his appointment was revoked by ministerial letter dated 4 February 2011.

The claimant sought judicial review on four main grounds: (1) breach of natural justice in not being given a fair opportunity to answer the true complaints against him; (2) reliance on irrelevant considerations (including the Secretary of State's equality portfolio and alleged desire to avoid political embarrassment); (3) irrationality; and (4) unlawfulness because no contractual breach had occurred. The court examined the recruitment steps, the content and character of the 2005 paper, the internal submissions and emails, and the procedural steps giving the claimant chances to respond (telephone meeting, written ‘minded to reconsider’ letter and a formal response).

The court held that the department had afforded adequate opportunities to be heard; that the minister’s concerns were legitimately directed to whether the paper’s authorship and content were relevant to the ACMD’s need to secure cooperation and credible evidence from the LGBT community; that the challenged considerations relied upon by the claimant were not in fact part of the revocation decision; and that it was open to the decision-maker to conclude the paper was polemical and thus relevant to appointment suitability. The court rejected assertions that the decision unlawfully penalised the claimant for holding religious beliefs or that Article 9 protection required different treatment. The claim was dismissed.

The claim is dismissed. The court held that the defendant afforded the claimant adequate procedural opportunities to respond, did not take the irrelevant considerations alleged into account, and acted within a range of reasonable responses in concluding that the claimant’s co‑authorship of the 2005 paper (and his non‑disclosure of it at interview) were material to his suitability for the ACMD and justified revocation of the appointment. The Article 9 and equality arguments did not change that outcome.