Fairburn, R (on the application of) v Secretary of State for Health

Statutory standards are not legally uncertain merely because they are expressed in broad terms and accompanied by non-exhaustive examples. The relevant question is whether the fundamental standard itself is stated with sufficient clarity. Examples may assist in applying the standard without forming a closed list, and conformity with an example does not necessarily establish compliance. A heightened need for certainty arises where breach may lead to professional sanctions or criminal liability, but that requirement does not demand an exhaustive list capable of covering every circumstance.

This was a renewed application for permission to judicially review provisions of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Permission had previously been refused by Hayden J. The claimant challenged regulations 9, 10, 12 and 17, arguing that the use of non-exhaustive subsidiary requirements made the applicable standards uncertain. The retrospective-effect ground was abandoned. The court also considered, but did not determine, standing, disclosure, a certificate of incompatibility and a protected costs order.

1. Permission refused. The challenge was unarguable and the renewed application failed.
2. The fundamental principle that laws must be sufficiently certain, particularly where breach may result in serious consequences, applied. The court relied on Kokkinakis v Greece (1993) 17 EHRR 397.
3. The operative standards were those contained in paragraph 1 of the relevant regulations. Those standards were expressed in clear and unambiguous language. The claimant did not challenge their clarity as such.
4. The subsidiary paragraphs supplied examples of conduct assisting the application of broad standards. They were not intended to be comprehensive or closed lists. Their non-exhaustive character did not make the standards uncertain.
5. Conformity with one or more examples might be persuasive evidence of compliance, but did not necessarily establish compliance. Conversely, the absence of a listed example did not determine whether the fundamental standard had been breached.
6. The seriousness of possible consequences, including cancellation of registration and, in certain circumstances, criminal liability, required enhanced care in assessing clarity. It did not require legislation to enumerate every possible circumstance in the health and social care sector.
7. The claimant’s suggestion that examples should have appeared in statutory guidance rather than in the regulations did not materially affect the standards’ clarity or certainty. The application for disclosure and the requested certificate of incompatibility were therefore unnecessary.
8. The judge expressed doubts about the claimant’s standing but left that issue undetermined. The protected costs order was refused, and costs were awarded to the defendant only in respect of the acknowledgment of service, in the sum of £704.

Permission was refused by Hayden J on 11 March 2015. The renewed application to the High Court (Administrative Court) was refused.