A Local Authority v AG (No. 2)

An academic application in the public-law field may be heard only in the court’s cautious discretion and where there is a good reason in the public interest. The example in R v Secretary of State for the Home Department ex p Salem of a discrete statutory point affecting many cases is illustrative, not exhaustive. The importance of protecting children, conflicting first-instance authority and the existence of a wider cohort may together justify hearing the application. The potentially far-reaching consequences of a declaration of incompatibility are not, at the permission stage, a reason to prevent the claim proceeding.

The local authority sought permission to pursue an otherwise academic application for a declaration of incompatibility under section 4(2) of the Human Rights Act 1998. The proposed declaration concerned the compatibility of the Diplomatic Privileges Act 1964 with at least article 3 of the Convention, in the context of the statutory protection of children of serving diplomats.

The diplomatic immunity had ended after the foreign government recalled the father and the family left the United Kingdom. The central issue was whether the court should permit the academic public-law claim to proceed.

1. Permission granted. The local authority was permitted to proceed with the academic application for a declaration of incompatibility. The care proceedings concerning two children were withdrawn, and directions were given for the remaining care proceedings.
2. The former absolute prohibition on hearing academic claims, reflected in Sun Life Assurance Co. of Canada v Jervis and Ainsbury v Millington (Note), was qualified by R v Secretary of State for the Home Department ex p Salem. In public-law proceedings the court has a discretion to hear an academic claim after the dispute has ceased, but the discretion must be exercised cautiously and only where there is a good reason in the public interest.
3. The Salem example of a discrete statutory-construction issue affecting many present or anticipated cases is not exhaustive. Whether there is a good reason depends on the context. A claim may satisfy the public-interest requirement if its resolution would help protect even one child in peril.
4. The exception is confined to public law. The court left open whether the exception could extend to a private-law academic appeal where the respondent was fully indemnified in costs, as suggested in Hutcheson v Popdog Ltd (Practice Note).
5. The court rejected the submission that particular caution was required merely because the application sought a declaration under section 4(2) of the Human Rights Act 1998. The observation in Secretary of State for the Home Department v Nasseri that such declarations will be rare was treated as an application of the Salem principle, rather than an additional threshold.
6. The public-interest reasons were the fundamental importance of protecting children, conflicting High Court authorities concerning diplomatic immunity and Part IV of the Children Act 1989, and the potentially significant cohort of children affected. The possible consequences for diplomatic relations and the merits of the incompatibility argument were matters for the substantive hearing, not reasons to refuse permission.