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

The Public Records Act 1958 does not impose a general implied duty to preserve every public record pending selection for permanent preservation. Section 3(1) requires arrangements for selecting records which ought to be preserved and for the safe-keeping of those selected records.

Executive policies do not create legal rights merely because they were made in the exercise of public power. Whether public law requires compliance depends on their nature and context. Internal administrative guidance directed to ministers and civil servants, concerning government communications and records management, is not ordinarily enforceable by judicial review where legislation confers broad discretion and does not require compliance.

The claimant sought judicial review concerning ministers’ and officials’ use of private email, WhatsApp and other electronic communications for government business. It contended that section 3(1) of the Public Records Act 1958 required public records to be preserved before selection for permanent retention. It also alleged that eight government records-management and communications policies were enforceable in public law and had been breached.

The Divisional Court, in [2022] EWHC 960 (Admin), [2022] 1 WLR 3748, rejected those arguments and granted no relief. The claimant appealed. The Court of Appeal considered the construction of section 3(1), the enforceability of the eight policies, the lawfulness of guidance known as the Dunn note, standing and relief.

1. Appeal and claim dismissed. Section 3(1) of the Public Records Act 1958 imposes no general or implied duty to preserve public records before their selection for permanent preservation. Its duty is to make arrangements for selecting records which ought to be permanently preserved and for the safe-keeping of those records. An implied duty covering every record would overwhelm departments and the National Archives. The Act supplied no principled basis for limiting such an implication to selected classes of records.

2. The statutory scheme operates at a high level and gives the responsible persons substantial discretion over selection and preservation arrangements. The Keeper of Public Records has a central supervisory role and may issue guidance under section 3(2), including guidance about preparation for selection and the treatment of potentially preservable records before selection. Sections 1(1) and 1(2) reinforce that structure by providing for supervision of the care and preservation of public records and advice concerning public records generally.

3. There was no public-law duty, enforceable by the claimant, to comply with the eight policies. Government policies differ from law and do not create legal rights merely because they were formulated through public powers. Whether compliance is legally required depends on the policy’s character and context. These policies governed internal administration, were directed to ministers and civil servants, were neither coherent nor consistently mandatory, and did not concern individual cases or rights.

4. The Public Records Act 1958 conferred broad discretion and did not require compliance with guidance once issued. Judicial enforcement would therefore risk deriving absolute duties concerning communications and preservation which Parliament had not imposed. It could also deter useful administrative guidance and draw courts into constitutionally inappropriate micro-management. Policies most likely to attract an enforceable duty are those constituting the epitome of government policy, which these documents were not.

5. The Dunn note was lawful and rational. It sought to reconcile apparently inconsistent guidance on private communications and to address security issues. Particularly where no individual rights were involved, those security and administrative questions were for the executive.

6. The standing issue was fact-sensitive but did not require determination because the substantive challenge failed. No relief was granted. The failure to particularise the relief sought until the second day of the appeal further illustrated the unsatisfactory conduct of the proceedings.

1. Court of Appeal (Civil Division): In [2022] EWCA Civ 1580, dismissed both the appeal and the claim for judicial review. It upheld the Divisional Court’s conclusions on section 3(1) of the Public Records Act 1958, the eight policies and the Dunn note.
2. High Court, Divisional Court: In [2022] EWHC 960 (Admin), [2022] 1 WLR 3748, held that section 3(1) imposed no duty to preserve records before selection, the electronic-communications policies were not legally enforceable, the Dunn note was not unlawful, and no relief should be granted.