TPL1, R (on the application of) v Secretary of State for Defence

Once a public authority establishes and operates a policy affecting individuals, public law principles apply to its administration. Where the policy is important to affected persons, the executive must publish an accurate and transparent statement of the criteria governing its operation so that informed and meaningful representations can be made. A general policy does not remove the need to publish material operational guidance where that guidance materially affects how the policy is applied. National security may justify withholding sensitive details and the whole of confidential guidance, but it does not necessarily justify withholding a public summary of its material criteria.

The claimant, a former senior member of the Afghan Partner Forces, sought judicial review of the Secretary of State’s administration of the Triples review under the Afghan Relocations and Assistance Policy (ARAP). The remaining issues concerned the failure to publish accurate criteria defining the review’s scope and the failure to publish material parts of caseworker guidance used in individual reviews. The claim arose against a background of serious defects in earlier decision-making, including inconsistent interpretation of ARAP and excessive reliance on UK Special Forces personnel. The court also considered the effect of national security concerns and the duty of candour in judicial review proceedings.

1. Permission and outcome. Permission to apply for judicial review was granted. The court held that the Secretary of State had public law duties to publish accurate information about the scope of the Triples review and a summary of the material parts of the caseworker guidance.
2. Scope of the review. The published descriptions of the review were materially inconsistent. Given the importance of the review and the potential consequences for applicants, the Secretary of State was required to publish a transparent and accurate statement of its scope. The ability of applicants to contact the department individually was not a sufficient substitute, since inaccurate published information could mislead people and deter further representations.
3. Caseworker guidance. The redacted guidance contained material criteria affecting how ARAP was applied to the Triples cohort. Applicants needed to know, among other matters, that detailed information might be required, that service after 2014 was assumed to make success less likely, and that operations involving less than a majority of UK personnel were assumed not to satisfy relevant category 4 conditions. Those matters had to be summarised publicly.
4. National security limitation. Compelling national security reasons justified withholding the whole guidance and sensitive operational details. The duty was therefore limited to publication of a summary of its material parts. Disclosure in judicial review proceedings did not, by itself, require publication to the world at large.
5. Wider principle. Although there was no legal obligation to establish ARAP, once established its administration was subject to public law principles. The court left matters of desirability and the broader design of the scheme to the executive, while determining the legal minimum required by transparency and the rule of law.

First instance judicial review proceedings; no prior judgment is stated in the judgment.