The Good Law Project, R (on the application of) v The Prime Minister & Ors

The Court of Appeal dismissed the appeal. It held that the duty in section 3(1) of the Public Records Act 1958 is limited to making arrangements for the selection of records for permanent preservation and for their safe-keeping and does not impose a general duty to preserve all public records prior to selection. Guidance issued by the Keeper under section 3(2) may properly address preparatory steps for selection, but internal departmental policies about communications and records management are not, as a class, enforceable in public law by way of judicial review.

The court accepted the Divisional Court’s reasons that the eight policies challenged were principally internal administrative guidance governing ministers and officials, did not involve the exercise of public power affecting individual rights, and that treating such policies as legally enforceable would risk undesirable judicial micro-management and deter useful internal guidance. The Court also held that the Dunn note (DHSC note to ministers) was lawful. Because the substantive public‑law claim failed, the court did not need to determine standing and granted no relief.

This appeal concerned claims by the Good Law Project for public‑law declarations about government policies on the use and preservation of electronic communications and about the lawfulness of a DHSC ministerial note (the "Dunn note"). The claimant relied on a series of policies and guidance documents (the eight policies) and alleged that ministers and officials had used private emails and messaging (including WhatsApp) for Government business and had failed to preserve records as required by those policies.

The matter reached the Court of Appeal after the Divisional Court had decided that the duty in section 3(1) of the Public Records Act 1958 did not extend to preservation prior to selection, that the policies were not legally enforceable, and that no relief should be granted ([2022] EWHC 960 (Admin), [2022] 1 WLR 3748). The claimant sought declarations that eight policies were legally enforceable and specific declarations as to 27 alleged breaches; the case involved factual material about use of private emails, group WhatsApp messages involving senior figures during the first lockdown, and Government device/app arrangements.

The court framed the issues as:

• whether section 3(1) imposed an obligation to preserve records pending selection;
• whether the eight policies created a public‑law duty to comply that the Good Law Project could enforce by judicial review;
• whether the Dunn note was unlawful;
• whether the Good Law Project had standing; and
• what relief, if any, should be granted.

On section 3(1) the court concluded Parliament did not impose a general duty to retain all records pending selection; the statutory scheme contemplates that departments and the Keeper will make arrangements and that the Keeper may give guidance under section 3(2) as to preparatory measures. On enforceability of the eight policies the court agreed with the Divisional Court and the Ministers that these were internal administrative guidance, directed at ministers and officials, not the public at large, and did not warrant a general judicially enforceable duty. The court emphasised constitutional restraint (policies are not law and guidance need not be slavishly followed) and that other accountability mechanisms exist (Information Commissioner, Parliamentary remedies, internal discipline).

The Dunn note was held not to be irrational or unlawful; it sought to reconcile conflicting guidance and addressed security considerations which are for the executive to manage. Given the dismissal on the merits, the court did not need to decide standing and refused relief. The court also criticised aspects of the claimant's conduct in the litigation and the lack of precision as to the relief sought.

Appeal dismissed. The Court of Appeal held that (1) section 3(1) of the Public Records Act 1958 does not impose a general duty to preserve records prior to selection; (2) the eight departmental and Cabinet Office policies relied on do not, as a class, create a public‑law duty of compliance enforceable by judicial review; (3) the DHSC "Dunn" note was lawful; and (4) no relief was granted. The rationale combined statutory construction of the PRA, respect for the distinction between policy and law, and constitutional caution about judicially enforcing internal administrative guidance.

This was an appeal to the Court of Appeal from the Divisional Court of the High Court (King's Bench Division). The Divisional Court had decided the matter in R (on the application of the Good Law Project) v The Prime Minister & Ors [2022] EWHC 960 (Admin), [2022] 1 WLR 3748; the appeal was heard in the Court of Appeal and disposed of by judgment [2022] EWCA Civ 1580.