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

The claimant, the British Medical Association, sought judicial review of the Secretary of State for Defence’s decision (communicated 12 January 2021) not to commence or fully implement section 192 of the Employment Rights Act 1996 at that time. The key legal question was whether the Secretary of State had complied with the duty, derived from the decision in R v Home Secretary ex p Fire Brigades Union, to keep under review the question of commencement and whether any such decision was amenable to judicial review and, if so, with what intensity.

The court held that a Secretary of State has a duty to consider commencement from time to time but that exercise of the discretion in the present statutory context attracts a light-touch review because of the wide policy margin and the multiplicity of considerations Parliament entrusted to the Minister (paragraph 16 of Schedule 2 to the ERA; section 192). Applying that approach, the court rejected each principal ground of challenge: (1) there was no legal requirement that the Minister’s consideration be "full" rather than provisional and the decision to defer consideration until reforms to the Service Complaints system were embedded was within the Minister’s permissible judgment; (2) any imprecise wording in material about the pre-2008 grievance framework did not amount to a material error of fact affecting the decision; (3) the Submission contained some clumsy or incorrect factual statements but none were material to the Minister’s rational decision to await the Service Complaints review; and (4) the degree of factual inquiry into relative costs was not irrational given that the decision was to postpone implementation rather than to choose between systems. The claim for judicial review was dismissed.

This judicial review concerned the Government’s decision not to commence the principal version of section 192 of the Employment Rights Act 1996, which (if commenced) would enable service personnel to bring Employment Tribunal claims for causes of action including unfair dismissal subject to exceptions or modifications to be made by Order in Council. The principal issues were whether the Secretary of State had complied with his duty to consider commencement "from time to time" and whether the decision to defer implementation pending reform of the Service Complaints system was justiciable and/or irrational.

Background and parties:

• The original claim included Dr Glynn Evans and the British Medical Association; Dr Evans was permitted to withdraw his claim and the BMA remained the claimant.
• The defendant was the Secretary of State for Defence. The claim followed an internal Ministry of Defence review of the Service Complaints (SC) system and a submission to Ministers recommending deferral of commencement.

Nature of application and relief sought: The claimant sought declaratory relief that the Secretary of State had unlawfully failed to consider commencement of s.192 conscientiously and from time to time, and asserted grounds of irrationality, material error of fact and inadequate inquiry.

Issues framed by the court:

• What duties, if any, arise from the Secretary of State’s commencement power under paragraph 16 of Schedule 2 to the ERA and whether those duties are justiciable.
• If justiciable, what is the intensity of review and what substantive grounds (bad faith, irrationality, material error of fact, failure to inquire) are available?
• Whether the particular decision to defer implementation pending embedding of SC reforms was lawful.

Court’s reasoning and conclusions:

1. The court extracted from FBU that a commencement power does not give rise to a mandatory duty enforceable by mandamus but does impose a duty to keep the question under review. The court accepted that judicial review may be available to challenge abrogation of that duty or decisions taken in bad faith, but emphasised that the factual and policy context determines intensity of review.
2. Given the wide discretion conferred by paragraph 2 of Schedule 16 (ERA) and the policy, administrative and operational considerations involved (including which rights and what modifications might be introduced by Order in Council), review should be "light-touch" and intervene only on Wednesbury irrationality or other conventional public law grounds.
3. Applying that standard, the court dismissed the claimant’s grounds: provisional or partial consideration was not impermissible; the Submission’s loose wording about pre-2008 arrangements did not reveal a material factual error; criticisms of the Submission’s detail did not show irrational reliance on irrelevant factors or disregard of relevant ones because the operative decision was simply to defer consideration pending the SC review; and the degree of financial inquiry was reasonable in light of the decision to postpone. The claim failed and was dismissed.

The judgment also records the procedural history including an earlier application for judicial review refused by Steyn J (22 July 2020) and that the court granted permission for Dr Evans to withdraw his claim.

This is a first instance decision: The claim is dismissed. The court held that the Secretary of State was under a duty to consider commencement of section 192 from time to time but that, in the statutory and factual context, the Secretary of State enjoyed a wide discretion and the court should apply a low-intensity (light-touch) review. Applying conventional public law grounds (bad faith, irrationality, material error of fact, failure to inquire), the court found no unlawful conduct: the decision to defer commencement pending embedding of Service Complaints reforms was within the defendant’s permissible judgment and not irrational or materially flawed.

Earlier proceedings included a prior judicial review application in which Steyn J refused permission on 22 July 2020; Steyn J nevertheless awarded costs to the claimants because of a pre-action deficiency. This judgment is a substantive first-instance determination of the April 2021 claim for judicial review (claim issued 9 April 2021).