‘Thirty five years after Gillick v West Norfolk and Wisbech AHA (Gillick) was decided, the Supreme Court took the opportunity, in R (A) v Secretary of State for the Home Department (A) and R (BF (Eritrea)) v Secretary of State for the Home Department(BF), (previously discussed in this blog here), to restate the boundaries of the test for the lawfulness of policies published by public bodies, and to identify as erroneous cases which had relied on “other principles” (A at [54]). Lords Sales and Burnett, giving the leading judgment in both cases, drew a distinction between policies which can be regarded as “sanctioning” (by statement or omission), and those which are simply capable of “leading” to, unlawful decision-making. They summarised the Gillick test as follows: “Does the policy in question authorise or approve unlawful conduct by those to whom it is directed?” (A at [38]) (referred to here as the “authorisation/ approval test”). Distinct formulations of the lawfulness test relied on in previous cases, which turn on whether a given policy can be regarded as “leading” to an “unacceptable risk” of unlawful decision-making (referred to here as the “unacceptable risk test”), were incorrect to the extent that they constituted a departure from Gillick (A at [75]).’

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UK Constitutional Law Association, 28th February 2022

Source: ukconstitutionallaw.org