Gill, R (on the application of) v UK Statistics Authority

A judicial review claim challenging a proposed exercise of statutory power is ordinarily premature where the relevant decision, instrument or legal event has not occurred. The court should not determine hypothetical issues dependent on future facts, legislation or executive decisions.

A declaration which would prevent a Minister from laying draft secondary legislation before Parliament, restrict Parliament’s scrutiny of it, or curtail the Queen in Council’s future discretion is an impermissible interference with parliamentary proceedings and the constitutional separation of powers. The exceptional jurisdiction to consider a draft instrument before it is made must be exercised with great circumspection and did not apply where no draft Order in Council had yet been prepared.

The claimant, acting for the Sikh Federation UK, sought judicial review of the contemplated exercise of the power to direct the 2021 census under the Census Act 1920. He challenged the proposed omission of a Sikh ethnic-group tick box from the census questionnaire and sought a declaration that making an Order in Council on that basis would be unlawful.

The Minister had not made a final decision, no draft Order in Council had been laid before Parliament, and no Order had been made. The defendant and interested party argued that the claim was premature and that the relief would infringe parliamentary privilege and the separation of powers. The central issues were whether the court should entertain the anticipatory challenge and whether the proposed declaration was constitutionally permissible.

1. Claim dismissed. The claim was plainly premature. No ministerial decision had been made, no draft Order in Council had been published or approved by Parliament, and the Queen in Council had not made an Order under the Census Act 1920 ([88], [108]-[109]).
2. The established practice is that judicial review ordinarily concerns legal issues which have already arisen for decision and facts which are established. Courts should rarely decide issues dependent on future factual events or future legislation ([87]-[88]).
3. The declaration sought would, in practical effect, prevent the Minister from laying before Parliament draft secondary legislation which omitted a Sikh ethnic-group tick box. It would also prevent Parliament from scrutinising the proposals and would constrain the Queen in Council’s law-making discretion ([92]-[103]). Such relief would impermissibly interfere with parliamentary proceedings and breach the constitutional convention of separation of powers.
4. The court distinguished the exceptional approach in R v Her Majesty’s Treasury, ex parte Smedley, where a pre-enactment challenge to a draft Order was entertained to avoid substantial delay and possible futility. Here, no draft Order existed and no justiciable decision had been made. The general rule therefore applied ([104], [106]-[108]).
5. R v Electricity Commissioners, Ex parte London Electricity Joint Committee Co. (1920) Ltd was distinguishable because the challenge there sought to prevent an unlawful inquiry by the decision-making body, not to prevent Parliament from exercising its statutory approval function ([104]-[105]). A challenge to the eventual Order in Council could be brought once it had been made, if otherwise validly arguable ([108]).