Da Silva & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

The claimants, who are core participants in the Undercover Policing Inquiry, sought judicial review of the Secretary of State’s refusal to appoint additional panel members to the Inquiry. The key statutory framework was the Inquiries Act 2005 (notably ss.1, 3, 7, 8, 9 and 38) and the public sector equality duty in s.149 of the Equality Act 2010. The court held that the letters of 29 March and 21 June 2018 did not constitute fresh decisions and that there were no material developments after the Secretary of State’s decision communicated on 2 March 2018 which required reconsideration.

The judge concluded that the Secretary of State had taken into account the relevant considerations, including the chairman’s expertise, impartiality and the risk of delay from appointing a panel, and had carried out an equality impact assessment (the Policy Equalities Statement). The application was refused as not arguable: no failure to have regard to relevant considerations and no breach of the Equality Act 2010 duty were established.

Background and parties: The Undercover Policing Inquiry was established under the Inquiries Act 2005 to investigate undercover police operations. The three claimants are non-state core participants. They applied for permission to challenge the Secretary of State’s decision not to appoint additional panel members to the Inquiry, relying on correspondence culminating in a letter dated 21 June 2018. Permission had previously been refused on the papers by Andrew Baker J on 13 September 2018.

Nature of the claim and relief sought: The claimants sought judicial review of the Secretary of State’s decision not to increase the Inquiry panel. They argued (i) the Secretary of State failed to have regard to relevant considerations including public confidence and meaningful participation of core participants, and (ii) there was a failure to discharge the public sector equality duty in s.149 of the Equality Act 2010. They also contended that later correspondence amounted to fresh decisions or otherwise required reconsideration.

Issues framed by the court:

• Whether the 29 March and 21 June 2018 letters constituted fresh decisions revoking or superseding the 2 March 2018 decision;
• Whether material developments occurred after 2 March 2018 that required the Secretary of State to reconsider the decision;
• Whether the Secretary of State irrationally failed to have regard to relevant considerations (including public confidence and the need for expertise on discrimination issues); and
• Whether the Secretary of State complied with the public sector equality duty (Equality Act 2010, s.149).

Court’s reasoning and conclusions: The court accepted that the later letters did not, on their face, constitute fresh decisions. The real issue was whether material new matters had arisen after 2 March such that a fresh decision or further PSED assessment was required. The Secretary of State had consulted the Inquiry Chair and had evidence in the Policy Equalities Statement that she had considered expertise, impartiality and the risk of delay from appointing a panel. The judge concluded that the potential for delay, and its disproportionate effects on some core participants, were legitimate considerations and that the Secretary of State was entitled to prefer a single chair on the basis of the workplan and the practicalities of a panel acting as a collective entity. The court found no material developments after 2 March 2018 that would have required reconsideration and found no failure to give due regard to s.149. The application was refused as not arguable.

Contextual note: The judgment records the Inquiry’s broad terms of reference, the Strategic Review and the chairman’s view that additional members could be considered for a later, lessons-learned stage. The court emphasised the limited role of judicial review in second-guessing the weight given to trade-offs such as delay and expertise.

This is a first-instance judicial review application which is refused. The court held that the Secretary of State did not act unlawfully in declining to appoint additional Inquiry panel members: the later correspondence did not constitute fresh decisions and there were no material developments after the 2 March 2018 decision which required reconsideration. The Secretary of State had taken into account relevant considerations, including the chairman’s expertise, the risk of delay and the Policy Equalities Statement addressing the public sector equality duty, so the claim was not arguable and permission was refused.

Permission to apply for judicial review had previously been refused on the papers by Andrew Baker J on 13 September 2018.