Bapio Action Ltd & Anor, R (on the application of) v Secretary of State for the Home Department & Anor [2007] EWCA Civ 1139

[2007] EWCA Civ 1139Case No C4/2007/0480
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
MR JUSTICE STANLEY BURNTON
CO/4699/2006
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/11/2007
Before
LORD JUSTICE SEDLEYLORD JUSTICE MAURICE KAYLORD JUSTICE RIMER
Between
THE QUEEN ON THE APPLICATION OF BAPIO ACTION LIMITED & ANOTHERAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENT & ANOTHERRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr R Singh QC and Ms J Kentridge (instructed by Messrs Linden Myers) for AppellantMs E Laing and Mr J Moffett (instructed by the Treasury Solicitor and the Solicitor to the Department of Health) for RespondentHearing Hearing date: Tuesday 30 October 2007
JudgementLord Justice Sedley :The issues
[1]This appeal, for which Stanley Burnton J, who tried it at first instance, gave permission, concerns the lawfulness of two government measures: the alteration without consultation by the Home Secretary of the Immigration Rules so as to abolish permit-free training (PFT) for doctors who lack a right of abode in the United Kingdom; and advice given by the Department of Health to NHS employers that doctors on the Highly Skilled Migrant Programme (HSMP) whose limited leave to remain was due to expire before the end date of any training post that was on offer should be offered the training post only if the resident market labour criterion was satisfied.[2]The case no longer directly concerns the third limb of the judicial review application, which Stanley Burnton J determined against the executive and which has not been the subject of any cross-appeal. This arose out of the failure of the Home Secretary to comply, otherwise than in retrospect, with the duty imposed on him by s.71 of the Race Relations Act 1976 to have due regard, in carrying out his functions, to the need to eliminate unlawful racial discrimination and to promote equality of opportunity. The judge declared that there had been a failure to comply with the duty but, in the light of the unchallenged race equality impact assessment which was subsequently made, declined to hold that the rule change was vitiated by the omission. This conclusion, which was essentially an exercise of the discretion to withhold relief, is not challenged.[3]Such a finding does not in any way diminish the importance of compliance with s.71, not as rearguard action following a concluded decision but as an essential preliminary to any such decision. Inattention to it is both unlawful and bad government. It is the Home Office’s good fortune that the eventual assessment did not force it to go back to the drawing board.[4]Stanley Burnton J ordered the applicants to pay all the costs of the Department of Health and two-thirds of those of the Home Office. The two departments had been jointly represented before him, but their costs were not coextensive. There is, however, a rule of practice, which in the event may call for attention, that an unsuccessful judicial review claimant will not ordinarily be ordered to pay two sets of costs. The background[5]The judgment of Stanley Burnton J [2007] EWHC 199 (Admin) is clear and comprehensive in its account of the facts giving rise to the claim and should be referred to for all matters of detail. What follows is the barest summary.[6]The National Health Service both trains and employs a large number of doctors from the Indian subcontinent. The relationship is one of mutual benefit. Doctors from India, Pakistan, Sri Lanka and Bangladesh form part of a larger cohort of international medical graduates (IMGs), defined by their lack of a right of abode here. They therefore include doctors, both trainee and qualified, who have studied or qualified either here or abroad. The first claimant, whose name is an acronym for the British Association of Physicians of Indian Origin, represents the large proportion within the cohort of IMGs from the Indian subcontinent, a group particularly affected by the measures in issue. The second claimant was one of these doctors – was, because in the course of the proceedings below he took his own life. This court associates itself with the condolences conveyed to his family in the judgment of Stanley Burnton J.[7]PFT – permit-free training – was introduced in 1985 by an amendment to the Immigration Rules: if an entrant could satisfy certain threshold requirements, he or she could take up a training post without a work permit. In the years that followed the scheme was modified several times. In 1994 the waiver was limited, for first-year trainees, to those who had graduated from a UK medical school. In 1997 this stricture was relaxed. In 2002 trainee GPs were included in the scheme. In 2005 the use of extra-statutory concessions to permit trainees to enter with a view to taking the language test administered by the General Medical Council, the Professional and Linguistic Assessment Board (PLAB), was replaced by a rule-change which separated entry for PLAB tests from leave to remain and stipulated that the IMG must leave the UK if he or she failed the test. The first part of the test can be taken overseas, but the second part must be taken here. Later the same year the Rules were further changed to take account of the new Foundation Programme for doctors in their first two years of postgraduate training. IMGs seeking entry for training other than on the Foundation Programme were not barred but now needed academic endorsement. The rule-changes[8]It was against this background that on 7 March 2006 the Health Minister, Lord Warner, announced fresh changes to the Immigration Rules affecting postgraduate doctors and dentists. The instrument containing them was laid before Parliament on 13 March by the Home Secretary and came into force on 3 April 2006.[9]Their effect was that PFT was to be limited to graduates of UK medical schools. It was also to be restricted to an initial period of 26 months on a Foundation Programme with a potential extension to a maximum of 3 years. The major consequence was that PFT ceased to be open to graduates of foreign medical schools. They could of course continue to train and work here, but only if they could secure entry on the terms applicable to those entering in order to take paid employment.[10]To those already undergoing training, however, the new regime was not to apply. Existing PFT entrants could remain and continue their training; and those at senior registrar or equivalent level could move into work permit employment without having to meet the resident labour market criterion, from which employers of IMGs in these classes were also exempted. The latter pair of exemptions was time-limited.[11]But for IMGs who were lawfully in the UK on visitor visas and, though unemployed, had passed the PLAB test and were seeking traineeships, no transitional provision was made. Their interests and aspirations were cut off by the rule change. The second claimant was in this position. The first claimant also contends that IMGs who had the benefit of PFT at the time of the change will now be required to obtain a work permit in order to continue their training here. They too, it is said, have therefore had a secure position undermined. The guidance[12]It remained open to IMGs to enter the UK by the other paths allowed by the Immigration Rules, including the Highly Skilled Migrant Programme. Under the HSMP an initial two-year period of leave to remain is given, followed by a further three. Those who can show that they are law-abiding and economically active may then apply for indefinite leave to remain.[13]But almost simultaneously with the laying before Parliament of the rule-change limiting the availability of PFT - on 13 April 2006 - the Department of Health sought to close the HSMP path by issuing guidance to NHS employers to the effect that IMGs with limited leave to remain expiring before the terminal date of any training post that was on offer should be offered the post only if the resident labour market criterion was satisfied. The arguments[14]It is contended by Rabinder Singh QC for the appellants that IMGs, including importantly the members of BAPIO, and BAPIO itself had a legitimate expectation, not that the Immigration Rules would not be changed to their detriment, but that no such change would be undertaken without consulting them about it. It is common ground that consultation, if called for, has to be fully informed and open-minded. It is also common ground that no such consultation took place on the rule-change. Counsel for the Home Secretary submits that none was required by law. In the alternative she submits that sufficient notice was given of the change to meet such obligations as fairness may have required.[15]It is separately contended by the claimants that the Department of Health guidance (which by agreement remains in abeyance pending this case) is an abuse of governmental power because, without any foundation in the Immigration Rules or the general law, it seeks to impose a new restriction on the employability of IMGs. The second defendant’s case is that is simply advice to NHS trusts as to how they should treat certain candidates for trainee posts, a matter of contract and not of public law.[16]Stanley Burnton J rejected both claims. He held that no authority, and no principle of law, made consultation a precondition of rule changes made under statute unless the statute itself required it or a practice of consultation had created a legitimate expectation that it would continue. Neither was the case here. Mr Singh submits that he was in error on both counts.[17]As to the DH guidance, the judge held that it did not purport to represent the effect of the Immigration Rules. It was simply guidance given by a department of state to employing bodies for which it was responsible. Mr Singh accepts this but submits that, precisely because it is travelling outside both law and immigration practice, the department has no business to be telling NHS bodies that they should limit the employment opportunities of overseas doctors by applying criteria of the department’s own devising. The duty to consult[18]It is important to see how Mr Singh and his junior, Janet Kentridge, put their case on consultation:29. The gravamen of the appellants’ challenge to the change to the Immigration Rules was that, as a matter of procedural fairness, IMGs in the United Kingdom who would be affected by the changes relating to PFT, or their representatives, should have been consulted before the respondents decided to make changes, but were not so consulted.30. At issue is the status and expectations of IMGs who have already passed part 1 of the PLAB, travelled at great expense to the United Kingdom in order to take the second part of PLAB and seek training posts, passed part 2 of the PLAB, spent further time and further money in seeking training posts, only to discover suddenly that they are no longer eligible for such posts. Or who, having managed to secure a training post, and obtained PFT leave, suddenly discovered that they probably will not be able to continue in the post after their leave expires. The expectation of overseas-qualified IMGs who are already in the United Kingdom that they would not in effect be compelled to throw away their investment in postgraduate training in the United Kingdom without any proper consultation with them or their representatives can hardly be said to be unreasonable. This case is not about the thwarted hopes of overseas-qualified IMGs hoping to come to the United Kingdom to take up employment in the NHS. It is about what fairness requires in respect of those who have committed time, energy and resources in pursuit of a goal which is attainable under an existing set of rules before a decision is made to place that goal beyond reach.[19]This argument recognises that the 2006 changes to the Immigration Rules were careful to ringfence IMGs who were already embarked upon permit-free training. The terms of the change included thought-out transitional provisions which would protect or cushion the bulk of those who had acted on the faith of the now superseded rule. In such a situation expectations derived from the outgoing regime, albeit legitimate, are not being unfairly frustrated: see R v MAFF, ex parte Hamble Fisheries Ltd [1995] 2 All ER 714. The same may be true of a policy or rule change which is announced but deliberately delayed in operation in order to let those affected adjust to it.[20]The appellants’ argument also recognises that the effects on the residual categories of IMG mentioned in paragraph 11 above are not such as to render the rule-change a justiciable breach of their substantive legitimate expectations. This is because there was in the Home Secretary’s judgment, which it is not sought to impugn, an overriding policy objective to which any substantive expectation that the existing regime would continue had to give way.[21]The sole question is therefore whether there was a legitimate expectation of a procedural safeguard, namely proper consultation, before any particular rule-change was decided upon. If there was, it is not contended by counsel for the Home Secretary that the rule-change can stand. The appellants’ case[22]Mr Singh’s principal submission is that the common law today will, at least as a prima facie rule, require the state to consult those affected before changing a rule or policy to the detriment of an ascertained and limited class. He does not argue for a general duty of consultation, but he argues that there is no reason of principle why an intended rule change which is going to affect a defined class “cannot be impugned on grounds of failure to consult, where such a duty of consultation would otherwise result from a duty to act fairly towards those affected by the change”. This seems to me to be question-begging. A duty to act fairly has meaning only when it is allocated to a particular function or group of functions. Here the function is either the making of rule-changes, which Mr Singh accepts is too broad to admit of any universal rule of fairness, or consultation before making them, which has therefore to be discretely shown to be an obligation.[23]Mr Singh seeks to do this by reliance on the second and fourth categories of procedural legitimate expectation set out by Simon Brown LJ in his synoptic judgment in R v Devon County Council, ex parte Baker [1995] 1 All ER 73, 88-9: (2) Perhaps more conventionally the concept of legitimate expectation is used to refer to the claimant’s interest in some ultimate benefit which he hopes to retain (or, some would argue, attain). Here, therefore, it is the interest itself rather than the benefit that is the substance of the expectation. In other words the expectation arises not because the claimant asserts any specific right to a benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness; the law recognises that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision. Of the various authorities drawn to our attention, Schmidt v Secretary of State for Home Affairs [1969] 1 All ER 904, [1969] 2 Ch 149, O’Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237 and the recent decision of Roch J in R v Rochdale Metropolitan BC, ex p Schemet [1993] 1 FCR 306 are clear examples of this head of legitimate expectation. (4) The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure, not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. Fairness requires that the public authority be held to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by way of established practice. Re Liverpool Taxi Owners’ Association [1972] 2 All ER 589, [1972] 2 QB 299 and A-G of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346, [1983] 2 AC 629 are illustrations of the court giving effect to legitimate expectations based upon express promises; Council of Civil Service Unions v Minister for the Civil Service isan illustration of a legitimate expectation founded upon practice albeit one denied on the facts by virtue of the national security implications.[24]In relation to Simon Brown LJ’s second category, the ultimate benefit founded upon by Mr Singh is the prospect of PFT held by IMGs who had passed the PLAB tests but were still looking for traineeships and who were now going to have to go through the new system instead, and by trainees with PFT who were now going to need work permits in order to continue their training. This narrows the scope of the proposed consultation to the two particular groups. The submission is that their manifest reliance on the existing rules made it unfair to change the rules without at least consulting them. I say “at least” because the logic is practically indistinguishable from that which today will sustain a legitimate expectation that such a rule will not be unnecessarily changed at all. The difference, a difference of outcome, is that it may well be possible for government to establish a policy imperative sufficient to override the substantive expectation (hence the claimants’ non-reliance on it here), but harder for it to override an expectation that it will listen fairly to what those adversely affected have to say before deciding what to do.[25]In relation to the fourth category, Mr Singh relies on a history of intermittent consultation to which I will come below. The respondents’ case[26]Ms Laing submits that there are at least three reasons why the court should not hold a duty of consultation to exist in the present context. First, she submits, the Immigration Rules are akin to delegated legislation and so on principle are immune to judicial review on grounds such as want of consultation. Secondly she submits that where Parliament intends there to be consultation it says so, so that the silence of the Immigration Act 1971 on the subject indicates a contrary intent. Thirdly, she contends that such an obligation as is contended for is unworkably open-ended, and the benefit at issue too speculative and remote to earn protection.[27]It is also suggested on behalf of the Home Office that consultation would have meant forewarning, and forewarning would have meant a rush to get under the wire before the way was blocked. As Mr Singh points out, the affected class consisted of IMGs who were already here. But this answer anyway becomes relevant only if a duty to consult has first been established in principle, and it is to this that it is necessary to turn. So, of course, does Ms Laing’s fallback submission that any duty to consult was so exiguous as to have been satisfied by the Parliamentary process. Discussion Legislative immunity[28]The unique constitutional nature of the Immigration Rules has been remarked on more than once by the courts. It is accepted that they are neither a simple policy statement nor true delegated legislation. As Stanley Burnton J said (§38): 38. As can be seen, the Immigration Rules are not law in the narrow sense. As Lord Denning MR said in R v Home Secretary, ex p Hosenball [1977] 1 WLR 766, 781, "they are not rules in the nature of delegated legislation so as to amount to strict rules of law". See too Geoffrey Lane LJ at 785C-786C. In Pearson v IAT [1978] Imm AR 212, following Hosenball, the Immigration Rules were described by the Court of Appeal as rules of practice laid down for the guidance of those entrusted with the administration of the immigration legislation and having the force of law for those hearing immigration appeals. Nonetheless, they are included in law in section 86(3) of the Nationality, Immigration and Asylum Act 2002. In R v IAT, ex p Bakhtaur Singh [1986] 1 WLR 910, 917-8, Lord Bridge amplified the distinction, pointing out that the Rules “do not purport to enact a precise code having statutory force” and “frequently offer no more than broad guidance as to how discretion is to be exercised in different typical situations”.[29]In constitutional terms, it seems to me, the Immigration Rules are the product of a mandate set out in s.3(2) of the Immigration Act 1971 to secure Parliamentary approval of the principles according to which the Home Secretary intends for the time being to exercise the statutory and prerogative powers which govern admission to the United Kingdom. There is nothing in the Act which gives them the force of law, save in relation to appeals against their exercise. For the rest, their only statutory dimension is that they are made open to debate and negative resolution in Parliament.[30]Despite his properly cautious approach to the status of the Immigration Rules, the judge, having cited Lord Scarman’s speech in Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240, 250, held that “…generally speaking, when the exercise of a power of a minister is subject to scrutiny by Parliament, it is not for the courts to subject the minister’s decision to the test of reasonableness or otherwise to impugn the substance of the decision.”[31]In my judgment the Nottinghamshire case does not support so broad a proposition. Lord Scarman’s reasoning and conclusion are predicated upon the inapt nature of the subject-matter – public finance – for judicial scrutiny, not upon a quasi-immunity from judicial review of delegated legislation or rules which have been laid before Parliament. It would have been surprising if he had meant to suggest that delegated legislation enjoys an immunity from legal challenge akin to that of primary legislation, for it does not. Without seeking to give a comprehensive account, it is sufficient to recall that delegated legislation may axiomatically be impugned for want of authority. When, therefore, the judge later in his judgment placed weight on “the more legislative context of a change to the Immigration Rules” as a reason for distinguishing a case (R v Rochdale MBC, ex p S [1993] 1 FCR 306) on a local authority’s duty to consult before withdrawing funds for school transport, he was in my respectful view drawing a false distinction. Indeed the judge went on directly to note that in R v IAT, ex parte Begum [1986] Imm AR 385, 394, Simon Brown LJ had held that the Immigration Rules might be impugned if they were “manifestly unjust or in any other such extreme fashion unreasonable”.[32]The present challenge does not seek directly to impugn the Rules. It seeks only to establish, albeit at a consequent cost to the validity of the material rule-change, a prior obligation of consultation. In my judgment, for the reasons touched on above, there is no principle of public law which immunises the Immigration Rules, or more accurately the Home Secretary, from such a challenge. If authority is needed in addition to principle, it can be found in the divisional court’s decision in R v Secretary of State for Health, ex p. US Tobacco [1992] 1 QB 353 that, even where a measure has been laid before Parliament, judicial review will lie for breach of (in that case) a prescribed consultation process. A duty to consult[33]In Bates v Lord Hailsham [1972] 1 WLR 1373, 1378, Megarry J held that there was no principle of law upon which the courts could base a duty to consult persons prospectively affected by the exercise of statutory functions. In spite of the characteristic care and learning evident in the judgment, it was given on an ex parte application to restrain a statutory committee from authorising a change in the Solicitors’ Remuneration Rules without a fuller opportunity for consultation with the profession than had in the event been given. The only authority cited to Megarry J was the Liverpool Taxi Owners case [1972] 2 QB 299. He held (p.1378):
“Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the process of legislation, whether primary or delegated.”
[34]As Megarry J’s taxonomy reminds us, these were early days in modern public law. What he says about primary legislation of course holds true: the preparation of Bills and the enactment of statutes carry no justiciable obligations of fairness to those affected or to the public at large. The controls are administrative and political. But, for reasons I have touched on above, there is no necessary or logical extension of this immunity to delegated legislation, much less to the Immigration Rules, and good reasons of constitutional principle for not extending it. If there are grounds for withholding an obligation to consult in relation to these, they have to be narrower. The Nottinghamshire case illustrates one such ground – the inaptness of the subject-matter to the relief sought. I turn to those relevant to the present case. Presumed parliamentary intent[35]I am not willing to follow the route of presumed parliamentary intent on which the respondents place reliance. They submit that Parliament cannot have intended, when it gave the Home Secretary power to make and alter the Immigration Rules, that he should consult those potentially affected before making any alterations. This submission inverts the rationale of procedural fairness. As was long ago explained by the Court of Common Pleas in Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 (approved inter alia in Ridge v Baldwin [1964] AC 40), where there is a want of fairness in procedures laid down by Parliament, the common law will supply it. As Byles J put it:
“…a long course of decisions, beginning with Dr Bentley’s case …., establish that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.”
Or as Lord Loreburn LC put it in Board of Education v Rice [1911] AC 179, the duty to act in good faith and listen to both sides is a duty which lies on everyone who decides anything. The limit, of course, is where Parliament has expressly (see Wiseman v Borneman [1971] AC 297) or by necessary implication (see Pearlberg v Varty [1972] 1 WLR 534) excluded such requirements.[36]Here there is no express exclusion. I will come later to the significance of the conspectus of statutory requirements of consultation assembled by Ms Laing and her junior Jonathan Moffett; but for the present it is sufficient to say that express provision for consultation in other statutes cannot by itself impliedly exclude consultation from the implementation of s.3 of the Immigration Act 1971. There is, if I may say so, a touch of innocence about the submission that Parliament was well aware by 1971 of the ‘technique’, as the respondents call it, of prescribing consultation, so that the non-use of it proves a contrary intent. Such reasoning would bring down the entire body of adjectival common law constraints on the use of statutory powers. Given in particular both the peculiar character of the Rules, which I have touched on above, and the fact that Home Secretaries have more than once elected to consult about changes to them, it is quite impossible to extract from the statute’s silence about consultation an intent that there should be none. And it is on this intermittent practice that Mr Singh’s alternative case is built. A practice of consultation?[37]I have set out in §22 above the fourth category of legitimate expectation set out by Simon Brown LJ in Baker.[38]The judge’s findings on this issue were these: 54. The evidence of Ms Mellor shows that there has not been such a practice. Neither BAPIO (if it then existed) nor the Overseas Doctors' Association (which did) was consulted in 1985. In 1993, a formal consultation on the control of the immigration status of IMGs was launched, but interim provisions were put in place, outside the Immigration Rules, without consultation: see the DH letter of 22 September 1993. Those interim provisions were extended in April 1994 "pending final decisions on the responses to the consultation exercise". That consultation did not lead to any changes in the Immigration Rules or the interim provisions: it was overtaken by the Calman reforms. The May 1994 consolidation of the Immigration Rules and the provisions governing PFT, and any change then in the Immigration Rules, were not preceded by consultation. Similarly, there was no consultation in 1997 on the specific changes to the Immigration Rules then made, although there was consultation on the revised guidance relating to those changes. There was no consultation on the minor changes made in December 2002. The changes to the Immigration Rules made in March 2005 were preceded by consultation with the BMA, the GMC, the General Dental Council, but not with BAPIO. Those bodies, and the Conference of Postgraduate Medical Deans (CoPMED) and the Committee of General Practice Education Directors were consulted by the Home Office in relation to the amendments to the Immigration Rules made in August 2005, but BAPIO was not. CoPMED has an Overseas Doctors Sub-Group: whether it was consulted internally by CoPMED does not appear.[39]Although BAPIO itself had not been consulted by the Home Secretary at any time, I am reluctant to decide the present question on this ground alone. Where there has been a regular practice of consultation, it seems to me wrong in principle not to permit a party who has been unjustly excluded from it to rely on the practice; and BAPIO might be entitled to say that, as the representative body of the group most directly affected by this series of changes, it was unjust to conduct a consultation which ignored them. But the prior question is whether there was, on the evidence, any such practice. For the reasons given by Stanley Burnton J it seems to me that there was not. While a practice does not have to be unbroken, it has to be sufficiently consistent to be regarded as more than an occasional voluntary act. Like the judge, I do not think that the Home Office’s past conduct fitted this description; but even if I did, I would not think it right to upset his judgment on what is an evaluative question of fact.[40]What Mr Singh highlights in his skeleton argument in this court is that following consultation with the Conference of Postgraduate Medical Deans (CoPMED) in 2005-6, BAPIO representatives met the minister for immigration and nationality, Mr McNulty. There followed correspondence in which the minister gave no hint of what is now known to have been the imminent rule-change that has provoked this litigation. Meanwhile, BAPIO was being consulted, but by CoPMED, about the new guidelines. All of this, I accept, gives BAPIO an understandable sense of grievance at having been kept in the dark until it was too late to do anything except try to use the Parliamentary process to stall the rule-change. But it does not help to establish a practice of consultation. An obligation of fairness[41]The question which remains is therefore whether, in the absence of either an implicit bar on consultation or of an established practice of consultation, fairness called for consultation with BAPIO or with those it represents on the rule change with which this case is concerned.[42]I do not accept the respondents’ submission that the procedural benefit sought by the appellants was either vague or remote. Notwithstanding the ringfencing of those already embarked on training, the changes were going to have an adverse impact on the two residual classes I have mentioned, and BAPIO had a case to urge on their behalf.[43]The real obstacle which I think stands in the appellants’ way is the difficulty of propounding a principle which reconciles fairness to an adversely affected class with the principles of public administration that are also part of the common law. These are not based on administrative convenience or potential embarrassment. They arise from the separation of powers and the entitlement of executive government to formulate and reformulate policy, albeit subject to such constraints as the law places upon the process and the product. One set of such constraints in modern public law are the doctrines of legitimate expectation, both procedural and substantive. Some have been touched on above – for example the requirements of candour and open-mindedness where either law or established practice calls for consultation. The duty to give reasons is another area in which there has been marked growth. It is not unthinkable that the common law could recognise a general duty of consultation in relation to proposed measures which are going to adversely affect an identifiable interest group or sector of society.[44]But what are its implications? The appellants have not been able to propose any limit to the generality of the duty. Their case must hold good for all such measures, of which the state at national and local level introduces certainly hundreds, possibly thousands, every year. If made good, such a duty would bring a host of litigable issues in its train: is the measure one which is actually going to injure particular interests sufficiently for fairness to require consultation? If so, who is entitled to be consulted? Are there interests which ought not to be consulted? How is the exercise to be publicised and conducted? Are the questions fairly framed? Have the responses been conscientiously taken into account? The consequent industry of legal challenges would generate in its turn defensive forms of public administration. All of this, I accept, will have to be lived with if the obligation exists; but it is at least a reason for being cautious.[45]The proposed duty is, as I have said, not unthinkable – indeed many people might consider it very desirable - but thinking about it makes it rapidly plain that if it is to be introduced it should be by Parliament and not by the courts. Parliament has the option, which the courts do not have, of extending and configuring an obligation to consult function by function. It can also abandon or modify obligations to consult which experience shows to be unnecessary or unworkable and extend those which seem to work well. The courts, which act on larger principles, can do none of these things.[46]It is here, I think, that the respondents’ conspectus of statutory provisions for consultation is relevant and revealing. While it is not, for reasons I have given, an aid to the construction of the Immigration Act 1971, it illustrates very clearly the need for specificity in a requirement of consultation. The variety of statutory provisions, a list of which is appended to this judgment, shows how the legislature will sometimes specify whom it requires to be consulted; will sometimes prescribe consultation with those members or representatives of a named class, or with those representative organisations, who appear to the minister or body to be appropriate or (what is not the same thing) to be representative; will sometimes dispense with the requirement in cases of urgency or where the consultee agrees not to be consulted; will sometimes make consultation discretionary; will sometimes make consultation obligatory but leave the choice of consultees to the discretion of the minister or body concerned; will sometimes require consultation with those appearing to the minister to represent interests substantially affected or otherwise defined; and may combine consultation with specified bodies with publication of a general invitation to make submissions. Two or more of these models may be combined. In one remarkable instance (the Recorded Delivery Service Act 1962, s. 1(3)(4)), the Secretary of State is required, before exercising the power to amend a local or private Act, to consult with the promoter of the Bill which became the Act, or with anyone considered by him to be a successor to the promoter’s interest.[47]For all these reasons I am not prepared to hold that there was at common law an obligation to consult those affected or their representatives before introducing the material changes to the Immigration Rules. I do not seek to elevate this to a general rule that fairness can never require consultation as a condition of the exercise of a statutory function; but in the present context it seems to me that a duty to consult would require a specificity which the courts, concerned as they are with developing principles, cannot furnish without assuming the role of a legislator. We would have, for example, to determine whether the duty contended for under s.3 of the 1971 Act arises before or after the formation of the policy prompting the rule-change; whether consultation is to be obligatory or discretionary; whether it is to take the form of a limited approach or a public exercise; whether the identity of the consultees should be prescribed or left to the Secretary of State; if the former, who they should be; if the latter, according to what criteria, if any, they should be chosen; and so forth. It is only if BAPIO could show that it would be entitled to be consulted whatever scheme was chosen that it might be able to overcome these obstacles. But, while I readily recognise the strength of its claim to be heard as the main representative of the cohort most directly and adversely affected, I do not think it can make out such a case. It is not inconceivable, for example, that a prescribed scheme, however controversially, would name the BMA as a sole consultee, relying on the s.71 exercise to reveal any unjustifiable disparate racial or national impact. We simply cannot know. The Department of Health guidance[48]To recapitulate, the DH in the immediate wake of the rule-change advised NHS employing bodies that IMGs with limited leave to remain expiring before the terminal date of any training post that was on offer should be offered the post only if the resident labour market criterion was satisfied. There was and is no such provision in the Immigration Rules or elsewhere in the law. The appellants contend that it was beyond the lawful powers of the Secretary of State for Health to give any such guidance.[49]The judge rejected this challenge. He held: 63. ….The guidance is not alleged to constitute unlawful discrimination under the Race Relations Act 1976. The guidance did not purport to represent the effect of the Immigration Rules. It was guidance given to employers by a government department responsible for their functions. It did not affect private hospitals, so that an IMG who qualifies under the HSMP may obtain employment there. If the guidance affected immigration law or practice, it would restrict the leave that might be obtained by an IMG who is offered a post in a private medical establishment; but it does not.[50]I respectfully differ. The guidance, in my judgment, directly and intentionally affects immigration law and practice by imposing on the possibility of employment in the public sector a restriction beyond those contained in the Rules. It is not suggested that trusts could ignore it or that they should give the Rules priority. Such departmental guidance is given with the intention that it should be followed.[51]The fact that the guidance was given to employers by a department of state matters, but not in the way the judge considered that it did. What was important was not that it was going to affect the exercise by NHS trusts of the private law power to enter into contracts. It was that the guidance was being promulgated by an entity, the Crown, which has a statutory obligation to secure parliamentary approval of the principles by which it intends to regulate admission to the United Kingdom. The terms on which particular entrants are permitted to take up employment are an essential part of such a regime.[52]The judge noted that the guidance did not affect private hospitals. We do not know how many, if any, of the applications which the guidance would stultify are likely to be in the private sector, but it does not matter. The partiality of the intended restriction simply emphasises that the state is using its own power, not as an employer but as a policy-maker, to enforce an additional restriction on the employment of IMGs.[53]I have described the author of the guidance as the Crown because such guidance is promulgated under the authority of a Secretary of State whose office is a prerogative office under the Crown. The Secretary of State for Health is also, as it happens, a corporation sole (Ministers of the Crown Act 1975, s.2; Transfer of Functions (Health and Social Security) Order 1988, §4(1)), but this – as Ms Laing and Mr Moffett have explained in a note to the court – is designed to secure continuity of property and contract rights and does not affect the prerogative character of the office itself.[54]If the Home Secretary had issued this guidance I do not see how it could have been suggested that it was lawful in the light of s.3 of the 1971 Act. It can be no more lawful if issued by another minister of the Crown, for the Crown in right of the United Kingdom is a single entity. Put in terms which political science, though not the common law, would recognise, the acts of both ministers are acts of the state; and in terms which the common law, though probably not political science, would recognise, the state cannot be heard to say that its left hand does not know what its right hand is doing.[55]Very properly, the guidance has been put on hold pending these proceedings. I would declare it to be unlawful and of no effect. Conclusion[56]I would therefore dismiss as much of this appeal as seeks to impose a duty of consultation on the Home Office, but allow it in relation to the guidance issued by the Department of Health.

Lord Justice Maurice Kay:

[57]I, too, would dismiss the appeal in relation to a duty to consult and would allow it in relation to the Department of Health guidance. I add these brief observations.

A duty to consult?

[58]I wholly agree with Sedley LJ’s reason for concluding that a duty to consult did not arise in this case, namely the non-specific nature of the alleged duty and the lack of clear principle by which to define it. For my part, however, I would not so readily reject one of the alternative submissions made by Ms Laing on behalf of the Home Secretary. Whilst I do agree with Sedley LJ that the Rules are susceptible to judicial review on grounds such as ultra vires or irrationality, I doubt that, as a matter of principle, a duty to consult can generally be superimposed on a statutory rule-making procedure which requires the intended rules to be laid before Parliament and subjected to the negative resolution procedure. I tend to the view that, in these circumstances, primary legislation has prescribed a well-worn, albeit often criticised, procedure and I attach some significance to the fact that it has not provided an express duty of prior consultation, as it has on many other occasions. The negative resolution procedure enables interested parties to press their case through Parliament, although I acknowledge that their prospects of success are historically and realistically low. They also retain the possibility of challenge by way of judicial review on the sorts of substantive ground to which I have referred. For these additional reasons I would be minded to reject the appeal to procedural fairness as the basis of a legal duty of consultation. I do not feel driven to this conclusion by authority. Indeed, I share Sedley LJ’s view that the Nottinghamshire case (above, paras 29 and 30) and Bates v Lord Hailsham (above, para 32) are not or are no longer directly in point. However, as a matter of principle, I consider that where Parliament has conferred a rule-making power on a Minister of the Crown, without including an express duty to consult, but subject to a Parliamentary control mechanism such as the negative resolution procedure, it is not generally for the courts to superimpose additional procedural safeguards. In one sense, this view gains support from the reasoning by reference to which Sedley LJ would dismiss the appeal. The lack of specificity and the absence of a clear principle of limitation which exist in the present case would, in my view, be present in most cases in which an unexpressed duty to consult might be postulated.

The Department of Health guidance

[59]I entirely agree with the judgment of Sedley LJ on this issue and add only this by way of amplification. In a witness statement of great candour, Deborah Mellor, a senior civil servant in the Workforce Directorate of the Department of Health, has described how “… it is not the case that the guidance goes beyond the Immigration Rules as a result of the Department of Health somehow misinterpreting or misrepresenting the effect of those rules. On the contrary, a deliberate decision was taken to make the guidance more restrictive that the Immigration Rules.”[60]She went on to relate how the Department of Health had raised its concerns with the Home Office but the Home Office “… had doubts about the feasibility of excluding IMGs at postgraduate level from the HSMP without fundamental alterations to the provisions of the Immigration Rules governing the HSMP … Accordingly, it did not prove possible to agree a further amendment to the Immigration Rules relating to HSMP at the same time as the restriction of PFT.”[61]In these circumstances, it is impossible to avoid the conclusion that the Department of Health decided to “go it alone” and, in so doing, issued a document, the nature and purpose of which was to regulate the conditions attaching to the immigration status of an identified group. R (S and others) v Secretary of State for the Home Department [2006] EWCA Civ 1157, [2006] INLR 575, demonstrated how the Home Secretary cannot introduce a change to immigration status without obtaining the necessary authority of Parliament. It would be absurd if another department of state could achieve the same forbidden result by acting independently.

Lord Justice Rimer:

[62]I have had the benefit of reading in draft the judgments of Sedley LJ and Maurice Kay LJ. I agree that the appeal should be dismissed insofar as it challenges the fairness of the procedure leading to the rule changes for want of prior consultation with IMGs in the United Kingdom or their representatives. I also agree that the appeal should be allowed in relation to the guidance issued by the Department of Health.[63]As regards the consultation issue, there is a divergence of approach between Sedley and Maurice Kay L.JJ although both approaches lead to the same result in the present appeal. Sedley LJ would reject any presumption that, when empowering the Secretary of State to make and alter the Immigration Rules, Parliament’s intention in section 3 of the Immigration Act 1971 was that he could do so without consulting those potentially affected before making any alterations. He favours the view that, in the present circumstances, the crucial question is whether fairness required such consultation. He explains, however, why in his view it is not practicable to identify a principle which reconciles fairness to a class or classes of potentially affected IMGs with the practicalities of actually carrying out any sort of consultation exercise as part of the rule changing process. His conclusion is that a duty to consult would require a specificity that the courts could not furnish without assuming the role of a legislator and that therefore there was no duty to consult.[64]Maurice Kay LJ, whilst agreeing with Sedley LJ that no duty to consult arose in this case, favours a more sharp-edged view. That is that in a case such as the present in which, in section 3, Parliament has prescribed a particular procedure for the rule making process, being one that is subject to the control mechanism of the negative resolution procedure, but which does not include any express duty to consult, there will generally be no scope for the superimposition of additional procedural safeguards on the prescribed statutory procedure by way of an appeal to the courts on the grounds that fairness requires a duty to consult.[65]I respectfully prefer and agree with the views expressed by Maurice Kay LJ. The practical difficulties that have led Sedley LJ, on his own approach, to reject any duty of consultation in the present case provide in my judgment a compelling inference that the real explanation as to why appellants are not entitled to succeed on the consultation issue is that it is simply no part of the scheme of section 3 that there should be any consultation; and if that is the legislature’s scheme, it is not for the courts to re-write it. I regard that view as supported by the fact that, as was cogently illustrated to us, the legislature is well able when it chooses to do so to identify whether any and, if so, what consultation process should precede any legislative changes, yet in the case of section 3 it chose to remain silent on the topic.[66]As regards the Department of Health guidance issue, I agree with both judgments and, although we are differing from the decision of Stanley Burnton J, do not wish to add anything of my own.

Cited in 95 later judgments

and 41 more of the most senior

Showing the 50 most senior of 95.