15/10/2025
Written by: Katy Sheridan
Background
On 30 July 2021, the Supreme Court handed down two judgments. Each had different contexts but one common legal issue: when is a policy unlawful?
In A, the appellant brought a judicial review against the Child Sex Offender Disclosure Scheme Guidance. He argued that omissions in the Guidance created an unacceptable risk of unfairness and that the Guidance was insufficiently clear, predictable and accessible such that it was non-compliant with Article 8(2) of the Convention.
In BF Eritrea the respondent brought a judicial review against the Home Office’s Enforcement Instructions and Guidance for assessing the age of unaccompanied asylum-seeking children. He argued that the criterion in the guidance permitted or encouraged unlawful conduct because it did not sufficiently remove the risk that immigration officers might misidentify children as adults.
Decision
The Supreme Court dismissed the Claimant’s appeal in A and allowed the Respondent’s appeal in BF, finding that neither policy was unlawful. The Court gave guidance on the circumstances in which policies will (and will not) be unlawful at common law under the Gillick principle (derived from the case of Gillick [1986] AC 112). The key elements of that guidance are as follows.
First, the basic obligation on policy makers is not to give a policy direction to recipients to do something which is contrary to their legal duty: A [29]-[47] and BF at [49]. In order to assess whether such a direction has been given, the Court compares ‘two normative statements’ – one being the content of the legal duty on the recipient of the policy (e.g. case worker for the Home Office) and one being the wording of the policy, objectively construed in its context (A at [41] and BF at [51]). If “the policy directs [recipients] to act in a way which contradicts the law it is unlawful” A at [41]. ‘Directs’ means directs, encourages or positively authorises (A at [34]). A policy will not ‘permit’ unlawful action merely because it does not positively forbid it.
Second, this means that the process of assessing the legality of policies is focused on their wording, not on the empirical outcomes that the policies may create (“the test does not depend on a statistical analysis of the extent to which relevant actors might or might not fail to comply with their legal obligations” A at [41]). The Supreme Court found that to do otherwise would “transform the obligation from one not to give a direction which conflicts with the legal duty of the addressee into an obligation to promulgate a policy which removes the risk of possible misapplication of the law on the part of those who are subject to a legal duty” (BF at [51]) (there being no such duty at common law).
Third, there are three broad categories of policies which may be found to be unlawful (A at [46]-[47]). These are: (i) where the policy includes a positive statement of law which is wrong, and which will induce a person who follows the policy to breach their duty; (ii) where the policy is promulgated pursuant to a duty to provide accurate advice about the law but fails to do so including by omission; or (iii) where the authority promulgates a policy voluntarily and in doing so purports to provide a full account of the legal position but fails to achieve that. In a category (iii) case, the extent of the detail needed will depend on the context but “it will not usually be incumbent on the person promulgating the policy to go into full detail about how exactly a discretion should be exercised in every case” (A at [47]).
Comment
A and BF Eritrea clarified the law concerning policy challenges and provided a simple and workable framework on the Gillick principle for both Claimants and Defendants. In particular, the judgments benefit public authorities which can promulgate policies with a higher degree of certainty about how to avoid successful judicial review.
Matrix members
In BF Eritrea: Lord Hermer KC, Chris Buttler KC for BF, Ayesha Christie for the Equality and Human Rights Commission.
In A: Hugh Southey KC for A.