R (on the application of Daniels) v the Rt. Hon. Theresa May, Prime Minister

The claimant challenged the Prime Minister's decision of 21 December 2017 not to appoint additional members to the Grenfell Tower Inquiry panel. The main legal issues were whether the Prime Minister misdirected herself as to the role of public confidence in exercising powers under the Inquiries Act 2005, whether the Article 2 procedural obligation required a particular panel composition, whether adequate reasons were given for the decision, and whether the public sector equality duty in section 149 of the Equality Act 2010 was complied with.

Key legal principles and findings:

• The decision whether to appoint additional panel members involves matters of judgment for the decision-maker; only irrationality would justify interference. The weight to be given to public confidence is for the decision-maker (see Secretary of State for the Home Department v AP (No. 1) and the Wednesbury principle).
• The Inquiries Act 2005 prescribes certain considerations (notably sections 8 and 9) but does not make public confidence a determinative statutory requirement mandating a multi-member panel in every case.
• Article 2 ECHR requires an effective, independent and impartial investigation, but it does not prescribe a particular panel composition beyond independence and impartiality.
• The reasons given by the Prime Minister, amplified in Government Legal Department correspondence, were consistent and not an impermissible post hoc rationalisation.
• The Prime Minister had regard to the public sector equality duty in section 149 of the Equality Act 2010; the court was satisfied there had been rigorous consideration and no arguable breach.

The application for judicial review was refused because the Prime Minister's decision not to appoint additional panel members at that stage was within the range of rational responses and complied with the PSED and the Article 2 requirements.

This was a first instance judicial review challenge to the Prime Minister's decision communicated in a letter of 21 December 2017 declining to appoint additional members to sit with Sir Martin Moore-Bick as chair of the public inquiry into the Grenfell Tower fire. The claimant, Samuel Daniels, through his solicitors, sought judicial review on grounds that the Prime Minister misdirected herself about the primacy of public confidence under the Inquiries Act 2005, failed to recognise the relevance of the Article 2 ECHR procedural duty, failed to give adequate reasons for her decision, and breached the public sector equality duty under section 149 of the Equality Act 2010.

The case was heard at an oral renewal hearing following an earlier refusal of permission on the papers by Choudhury J on 19 March 2018. Lords Justice Bean and Mr Justice Edis heard the renewal on 4 May 2018. The Grenfell Tower Inquiry had by then published a detailed List of Issues and timetabling for Phase 1 hearings; Sir Martin had proposed appointment of assessors and contemplated advisory mechanisms.

Issues framed by the court:

• Whether the Prime Minister unlawfully failed to treat maintenance of public confidence as a determinative statutory objective when exercising powers under the Inquiries Act 2005.
• Whether Article 2 ECHR required a particular panel composition or the appointment of lay panel members to secure the procedural obligation.
• Whether the reasons given were adequate and whether later, fuller reasons constituted impermissible post hoc rationalisation.
• Whether the Prime Minister complied with the public sector equality duty in section 149 of the Equality Act 2010.

Court's reasoning and conclusions:

The court examined the text of the Inquiries Act 2005 (notably sections 3, 7, 8, 9 and 11) and concluded that the Act requires regard to expertise and, where a panel is appointed, to balance, but does not mandate that public confidence be treated as an overriding single requirement that would automatically require a multi-member panel. The judges accepted that the views of survivors and bereaved were a material consideration, but held that the weight to be given to public confidence and to competing considerations (such as expedition and the need to complete an initial report promptly) lay within the Prime Minister's judgment and was reviewable only for irrationality. The court held that Article 2 requires an independent, impartial and effective investigation but does not prescribe a specific panel constitution beyond independence and impartiality. The Prime Minister's short letter of 21 December was augmented by detailed correspondence from the Government Legal Department; the court found those later reasons to be consistent with the original decision and not an unlawful retrospective justification. On the equality duty, the court considered R (Bracking) and related authorities and concluded there had been a proper, rigorous consideration of section 149: the Prime Minister recorded having had regard to equality matters and judged that appointment of assessors and the proposed advisory mechanisms could address equality and engagement concerns. The court therefore refused permission for judicial review.

The court emphasised that the decision was limited to declining appointments "at this stage" and did not preclude future applications for additional panel members during later phases of the Inquiry.

This was a first instance judicial review application which the court refused. The judges concluded that the Prime Minister's decision of 21 December 2017 not to appoint additional panel members at that stage was within the range of rational decisions, complied with Article 2 insofar as independence and impartiality were ensured, and satisfied the public sector equality duty. The court therefore refused permission for judicial review: "I would refuse permission for judicial review of the Prime Minister’s decision contained in the letter of 21 December 2017."

Permission on the papers was refused by Mr Justice Choudhury on 19 March 2018. The claimant renewed the application for permission and this oral renewal hearing was determined on 4 May 2018 by Lords Justice Bean and Mr Justice Edis, who refused permission for judicial review. Neutral citation: [2018] EWHC 1090 (Admin).