5.44.1R (C) v Secretary of State for Justice [2008] EWCA Civ 882, [2009] QB 657
Delegated legislation promulgated in advance of completing a race equality impact assessment under section 71 of the Race Relations Act 1976, or undertaking necessary consultation, was unlawful and would be quashed notwithstanding the consultee’s participation in the judicial review and a very belated, ex post facto impact assessment
Facts: the Secretary of State promulgated an amendment to the Secure Training Centre Rules 1998 which provided that a trainee could be physically restrained not just (as previously) to prevent his escape from custody, injuring himself or others or damaging property but for the purpose of ensuring good order and disciplined.
Judgment: the Court of Appeal (Buxton, Tuckey and Keene LJJ) held that the amending statutory instrument was unlawful and quashed it, on the basis that the Secretary of State had failed to (i) consult with the Children’s Commissioner, as had been required by rationality; and (ii) undertake a race equality impact assessment pursuant to section 71(1) of the Race Relations Act 1976 and notwithstanding that (i) it had passed into law after Parliamentary debate pursuant to the negative resolution procedure; and (ii) the Secretary of State had subsequently competed a race equality impact assessment. Buxton LJ said this on behalf of the Court of Appeal:
49. Leading judges have stressed the importance of REIAs [race equality impact assessments] as an instrument in guarding against race discrimination. They include Arden LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, para 274 and Sedley LJ in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139. In the latter case Sedley LJ said, at para 3, that the decision in that case not to interfere with the trial judge’s decision not to quash the alteration of the Immigration Rules that had taken place without an REIA does not in any way diminish the importance of compliance with section 71, not as a rearguard action following a concluded decision but as an essential preliminary to any such decision. Inattention to it is both unlawful and bad government. I respectfully agree. In the present case, absence of an REIA was the result not of inattention but of a mistake made by the Secretary of State. It was however a mistake that the Divisional Court found very surprising: see para 38 above. In my view it sent out quite the wrong message to public bodies with responsibilities under section 71 to allow that deficit to be cured by a review only undertaken eight months after the Amendment Rules had been laid, and in the face of an adverse court decision; and only completed a year after the Amendment Rules were laid, and four days before the hearing in this court. That process has also produced the result that the REIA needed to come to a particular conclusion in order to preserve Regulations that the court has found to have been introduced unlawfully. I do not of course in any way doubt the good faith of the grade seven civil servant who has produced an REIA that demonstrates that PCC is not applied in a discriminatory fashion. But as a matter of principle it cannot be right that a survey that should have been produced to inform the mind of government before it took the decision to introduce the Amendment Rules was only produced in order to attempt to validate the decision that had already been taken. 50. I therefore consider that the reasons given by the Divisional Court for not quashing the Amendment Rules were mistaken. That court should have quashed those Regulations.
Should this court now quash the Amendment Rules?
51. Although much is said about the decision of the lower court in this matter being one of ‘discretion’, it was not suggested that it was an exercise of discretion with which this court can only interfere on Wednesbury grounds. We have to make up our own mind as to the proper course now to be followed.
52. The position now is that four days before the hearing the Secretary of State produced the promised REIA, which did indeed validate the Amendment Rules in that respect. And although there has still not been formal consultation with the Children’s Commissioner, he has had his day in court. In addition to those points, Miss Lieven said that there were two further and important considerations. First, the review had now reported, albeit three months later than the Divisional Court had been led to expect. The Secretary of State was not prepared to reveal what the review had recommended, but in the light of the review he would be producing his own considered view of policy in regard to the use of PCC throughout youth custody institutions at the end of October. The implication was that everything should remain as it is until then. Second, as we have seen Miss Lieven stressed the uncertainty; and then the positive difficulty; that would be produced if the Amendment Rules were quashed: see paras 17–18 above.
53. For the reasons set out in paras 20–34 above I am unable to accept that latter element in Miss Lieven’s submissions. Nor do I find relevant the possibility of future changes of policy. As I have indicated when discussing the position before the Divisional Court, the present issue is as to the procedural legality of the Amendment Rules, and not as to the merits of the regime that they introduce. A change in the latter will not cure the former defect. The only issue is, therefore, whether quashing remains an appropriate remedy in view of events that have occurred in the five months since the hearing before the Divisional Court.
54. In considering that issue I am strongly influenced by the failure to produce an REIA. Although here characterised as a procedural defect, it is a defect in following a procedure that is of very great substantial, and not merely technical, importance, as the observations of Arden and Sedley LJJ make clear. It continues to be of the first importance to mark that failure by an appropriate order. That an REIA has now been produced, more than a year after it should have been, is by no means conclusive on this issue of principle, granted the unsatisfactory conditions under which that work was undertaken. Miss Lieven pointed out that despite this court’s strictures in the BAPIO case [2007] EWCA Civ 1139 it did not interfere with the refusal of the trial judge to quash the Regulations. But that was a case where the mistake had been realised and corrected before the matter came to court, and was the subject of proper apology. Neither of those things is true in this case.
55 Accordingly, I continue to consider that the rule of law and the proper administration of race relations law require the Amendment Rules now to be quashed. I would so order.