Public law roundup: What to expect from a Labour government & recent judgement on challenging governmental policy

Unlike the previous government, there is no focus by Labour on reforming judicial review or leaving the European Court of Human Rights (ECtHR). This will be a source of huge relief to many. There is, however, unlikely to be more money for Legal Aid and this, in practice, reduces the ability of public law to play its role in supporting the rule of law and human rights. 

With regard to particular policies that touch on public law, beyond pulling out of the Rwanda migration treaty, Labour’s concrete reforms to the asylum system remain to be published in detail, but will be eagerly awaited as the system remains at breaking point. Their manifesto referred to negotiating returns agreements with safe third countries, but which countries and on what terms will be crucial, and may well give rise to public law challenges. 

Other policy areas on the immediate agenda are the industrial strategy, which hinges on reforms to the planning system in order to promote the building of homes and infrastructure. The government will need to avoid significant numbers of challenges within the planning system to achieve the productivity levels required to meet their stated aims. 

Further public law interest arises from Labour’s promise to address ‘historical injustices’. The new government will relatively quickly have to respond to the Grenfell Inquiry report in early September, and to the various reports of the Covid Inquiry in due course. The manifesto also referred to implementing the so-called ‘Hillsborough Law’, imposing a duty of candour on public authorities, and initiating an investigation or inquiry into what happened at Orgreave. 

The recent appointments of the new Law Officers and the Lord Chancellor may indicate that intentional and deliberate conflicts with international law are not, however, on the agenda. 

The newly-appointed Attorney General, Richard Hermer KC, for example, has been a vocal advocate for the importance of international norms and the rule of law over the past 14 years. As a practicing KC, Hermer has been involved in claims originating from the Iraq war and Guantanamo Bay, and was part of the legal task force addressing international crimes committed by Russia in Ukraine. Hermer’s own podcast, ‘Matrix Pod: Rule of Law’, recently ran an episode titled ‘The Rwanda Bill: Even Worse Than You Thought’, in which Hermer spoke on the illegality of the Bill and the “myriad of ways” it breaches international law. 

Starmer’s surprise decision to appoint Hermer straight from his practice as a human rights lawyer, over MP and shadow cabinet Attorney General Emily Thornberry, is a strong indication that the new government is planning to take the rule of law more seriously, and we can likely expect a sharp departure from the Conservatives’ approach to international law over the coming months. 

Starmer’s choices to appoint Shabana Mahmood as Lord Chancellor and Secretary of State for Justice, and James Timpson as Prisons Minister, stand as further indications of the new government’s commitment to change. Timpson – a passionate advocate for prison reform and former Chair of the Prison Reform Trust – has stated that “the UK is addicted to sentencing and punishment”, and is likely to propose some radical shake-ups during his time in office. Mahmood, another established lawyer and advocate for change, is expected to speak over the coming days on her plans to address the legacy of the previous government. While we are yet to see any policy statements, Mahmood stated on her X account that “Before politics, I was a lawyer. I understand the deep challenges facing our justice system. But there is so much we can do. The hard work starts now.” 

The most recent notable appointment is Sarah Sackman, another barrister of Matrix Chambers, as Solicitor General. Her appointment to the role as a newly-elected MP signals a departure from the recent practice of appointing more established party politicians, which has drawn criticism for eroding the independence of the roles. 

Relevant to the way ahead will be a case which came in just under the wire before the General Election. The decision was handed down at the end of last week in the case of R(on the Application of FDA) v Minister for the Cabinet Office and Minister for the Civil Service [2024] EWHC 1729 (Admin). The High Court dismissed the FDA trade union’s claim that guidance issued by the Conservative government earlier this year was unlawful. The guidance stated that civil servants would be required to give effect to a Minister’s instruction to ignore an interim ruling of the ECtHR and proceed to remove an individual to Rwanda.   

A large part of the sting has of course been taken out of the case’s practical implications by the change of government – conveniently confirmed a few hours before the judgment was handed down – and the resulting slim likelihood that the particular scenario upon which the guidance and the claim were based will ever come to pass. Kier Starmer referred to the Rwanda scheme as “dead and buried” in his first press conference as Prime Minister over the weekend. 

The part of the judgment we want to pick up, and relevant to anyone considering new policies from our new government, is the question of whether the guidance in the Rwanda case was a mis-statement of the law and therefore unlawful. The court confirmed the test for a challenge to government guidance or policy, namely:

1. 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 legal duty in some way;
2. where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a mis-statement of law or because of an omission to explain the legal position; or
3. where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that (this could either be because of a specific mis-statement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position).

The guidance to civil servants dealing with the Rwanda scheme did not purport to cover all eventualities, and so did not meet the third part of this test. 

This test therefore represents the relevant threshold to judge any newly published policy or guidance, as the new Labour government sets about implementing changes to reflect a new policy agenda.