THE BRITISH MEDICAL ASSOCIATION (R on the application of) v SECRETARY OF STATE FOR DEFENCE & ANOR.

A statutory power to appoint the commencement date of enacted provisions normally creates a continuing duty to consider commencement from time to time, but not a duty to appoint a date. The decision-maker may defer substantive consideration where the statutory scheme gives a broad discretion as to timing, scope and implementation. Judicial review remains available for fundamental unlawfulness, but review is of low intensity where the decision involves policy, administration and changing practical circumstances. The court will intervene only for irrationality in the Wednesbury sense, including a material error of fact or failure to make reasonable inquiries. A ministerial submission need not analyse every relevant matter in detail if it provides enough information for an informed judgment on the decision actually being made.

The British Medical Association and Dr Glynn Evans challenged the Secretary of State’s decision of 12 January 2021 not to commence or fully implement section 192 of the Employment Rights Act 1996. Section 192 would permit specified employment rights, including unfair dismissal rights, to apply to service personnel, subject to possible exceptions, modifications and exhaustion of service complaint procedures.

The decision deferred implementation pending reform and review of the armed forces Service Complaints system. Dr Evans was permitted to withdraw, leaving the BMA as claimant. The issues were whether the Secretary of State had complied with the continuing duty to consider commencement, and whether the decision was unlawful for factual error, irrationality or inadequate inquiry.

1. Claim dismissed. Dr Evans was permitted to withdraw his claim. The BMA’s judicial review challenge failed.
2. Following R v Home Secretary ex p Fire Brigades Union, a statutory provision enabling a Secretary of State to appoint a commencement date does not impose an enforceable duty to appoint one. It does impose a continuing duty to consider commencement from time to time while the power remains unexercised and the provision has not been repealed.
3. The court could entertain a challenge to the lawfulness of the decision. However, the statutory scheme here differed from that in Fire Brigades Union: section 192 permitted choices about which employment rights should apply and how they should interact with the Service Complaints system. The decision therefore attracted a light-touch review.
4. The Secretary of State was entitled, acting in good faith, to decide when the issue should next be considered. The duty did not require a full review on every occasion or require the decision-maker to identify a change of circumstances justifying delay. Deferring implementation until Service Complaints reforms were embedded was rational.
5. Some passages in the ministerial submission were clumsily expressed, unconvincing or wrong, including references to unlawful deduction claims and possible primary legislation. Those matters were not material to the decision actually made, which was simply to postpone implementation pending review. The decision-maker was told enough to make an informed judgment.
6. The duty to make reasonable inquiries did not require a detailed comparison of costs under the Employment Tribunal and Service Complaints systems. That comparison would have been relevant to a later implementation decision, but was not directly relevant to the decision to postpone consideration.

First-instance judicial review in the Administrative Court. The court permitted Dr Evans to withdraw and dismissed the remaining claim.