A, R (On the Application of) v Chief Constable of B Constabulary [2012] EWHC 2141 (Admin)

[2012] EWHC 2141 (Admin)

Case No CO/4355/2011

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 26/07/2012

Before

MR JUSTICE KENNETH PARKER

Between

THE QUEEN on the application of AClaimant

CHIEF CONSTABLE OF B CONSTABULARYDefendant

Mr Gordon Nardell QC and Mr P Patel (instructed by Birketts LLP) for Claimant

Miss Fiona Barton QC (instructed by Legal Services Department, B Constabulary) for Defendant

Hearing Hearing date: 9 May 2012

Judgment

Introduction

[1]The Claimant (who in these proceedings is referred to as “A”) is a sole trader who provides, among other things, vehicle hire, breakdown and recovery services. For many years A provided recovery and breakdown services to the Defendant (who in these proceedings is referred to as the Chief Constable of B Constabulary, or as “the Police Authority”) directly and, more recently as a sub-contractor to a main contractor appointed by the Chief Constable.

[2]In 2010 the Police Authority reviewed its vehicle recovery contract. A new contract was entered into with FMG Support (RRMM) Limited (“FMG”). FMG provides vehicle recovery services to a number of police forces in England and Wales. FMG sub-contracts the delivery of services to local operators.

[3]On 13 December 2010 A entered into a sub-contract with FMG. The sub-contract was to begin on 14 January 2011 for an initial period of three years. The contract was essentially for the provision by A of recovery, storage and disposal services to the Police Authority in a small part of the Authority’s area. Although the sub-contract is between FMG and A, the sub-contract governs the supply of services to the Police Authority and contains terms which refer to interaction between A and the Police Authority.

[4]In particular, Schedule 3 of the contract sets out A’s obligations. Paragraph 2.7 of Schedule 3 provides:

“2.7 …The Police Authority will be required to vet the Supplier’s employees, agents or subcontractors and exclude any person from the Agreement without further explanation…”

The vetting procedure, which lies at the centre of A’s claim, was carried out pursuant to this contractual provision.

[5]Accordingly, the Police Authority requested that all those persons who were to be employed or engaged by A (including A himself) should complete a pro-forma giving information about themselves to enable a security vetting check to be carried out by the Police Authority.

[6]In January 2011 A submitted pro-formas on behalf of himself and some of his employees, to enable security vetting to be carried out. It was necessary for A to secure vetting clearance as he was personally and directly involved in the discharge of the duties set out in the contract (and thus, like other employees, would enjoy a position of responsibility in that he would have access to, inter alia, police premises and assets).

[7]A completed a pro-forma that contained basic identifying information to enable a security vetting check to be carried out.

[8]On 27 January 2011 FMG informed A that six employees in respect of which a request had been made had been given clearance by the Police Authority to work on the contract. A further five employees were subsequently also security cleared.

[9]On 15 February 2011 an employee of the Police Authority, Sue Jarvis, informed A’s manager by e-mail that A had not been given security clearance to work on the contract. It is this decision, refusing A security clearance, that is the subject of the claim for judicial review.

[10]A asked Ms Jarvis for more information. On 15 February 2011 (the same day) Ms Jarvis provided the following information to A:

“We do carry out checks on police systems both nationally and locally. We have a set criteria from the Home Office which prevent a person from gaining access to [the Police Authority’s] premises and IT systems. There are time scales for offences i.e. a caution would be 5 years, bankruptcy 3 years, driving offences 4 in 5 years and so on. Also if there is any ongoing investigation we would have to wait for the conclusion of that. So it doesn’t mean that we would not clear someone in the future. If an individual wishes to find out what is held on them, they can apply through Data Protection for Subject Access. If the individual thinks that information may be held with a particular force then they should apply to that force who owns the information. I hope this makes sense and is of some help.”

[11]On 17 February 2011 Ms Jarvis spoke to A again and informed him that the Police Authority could not grant him security vetting clearance. She did not mention any information or intelligence that might have led to this decision.

[12]On 1 March 2011 A wrote to the Information Security & Vetting section at the Police Authority, noting that he had not been able “to absolutely determine the cause of this decision [not to give clearance] from my conversations with yourselves.” A stated that he was extremely concerned that the decision may have been influenced by incorrect information and asked to be provided with full details of the detrimental information held against him.

[13]On 3 March 2011 A followed up his letter with a subject access request made under s7 of the Data Protection Act 1998, seeking:

“Information identified in relation to vetting procedure decline connected to FMG support vehicle recovery contract for [the Police Authority].”

[14]On 5 April 2011 the Police Authority provided the information held in relation to A that it was obliged to supply under the Data Protection Act 1998 (i.e. that data which was the subject matter of the request and which was not exempt from disclosure by reason of one or more of the exemptions set out in Part III (ss27-29) of the 1998 Act). The covering letter notified A of his right to request the Information Commissioner to conduct an assessment of the Authority’s response to his subject access request. Therefore, the procedure under the Data Protection Act 1998 appears to have been impeccably followed. However, as has emerged in the course of these proceedings, the Police Authority did not base its refusal of A’s security clearance on any information disclosed under the 1998 Act. Furthermore, the inescapable inference was that the Police Authority well knew that in response to the data access request it would not be disclosing any information upon which it based the refusal of A’s security clearance. From A’s point of view, this exercise was a wild goose chase.

[15]In any event on 11 April 2011 A wrote to the Police Authority referring to a few possible inaccuracies in the data disclosed to him. As I have observed, this was a somewhat pointless exercise in the present context because the Police Authority knew that the disclosed data had no bearing on the decision that concerned A.

[16]On 15 April 2011 the Police Authority replied in detail to the points made by A in relation to the disclosed (and, in the relevant context, irrelevant) information.

[17]On 15 April 2011 A’s solicitors sent a short Protocol letter and on 9 May 2011 the Defendant sent a Protocol reply. This stated:

“[A] was not given security clearance as a result of information held by police for a policing purpose. I am unable to disclose the nature of that information.”

[18]For completeness, I should mention that it emerged in evidence in these proceedings that Ms Jarvis’ refusal of 15 February 2011 was reviewed and approved by a senior officer at a later date. It also emerged that the initial and review decisions were made by reference to nationally published guidance, NVP, which was not mentioned, either expressly or impliedly, in any of the relevant communications with A in respect of the refusal of his security clearance.

The Legislative and Policy Background

(a) General Police Powers

[19]In response to my questions at the hearing of this claim, I was provided with material relating to the statutory background. As to police powers generally, section 3 of the Police Act 1996 (“the 1996 Act”) provides:

“(1) There shall be a police authority for every police area for the time being listed in Schedule 1. (2) A police authority established under this section for any area shall be a body corporate to be known by the name of the area with the addition of the words “Police Authority”.”

[20]Section 6 of the 1996 Act sets out the general functions of police authorities, as follows: “6 General functions of police authorities.E+W(1) Every police authority established under section 3 shall secure the maintenance of an efficient and effective police force for its area.

(2) In discharging its functions, every police authority established under section 3 shall have regard to— (a) any objectives determined by the Secretary of State under section 37, (b) any objectives determined by the authority under section 7, (c) any performance targets established by the authority, whether in compliance with a direction under section 38 or otherwise, and (d) any local policing plan issued by the authority under section 8.

(3) In discharging any function to which a code of practice issued under section 39 relates, a police authority established under section 3 shall have regard to the code.

(4) A police authority shall comply with any direction given to it by the Secretary of State under section 38 or 40….” (a) any objectives determined by the Secretary of State under section 37, (b) any objectives determined by the authority under section 7, (c) any performance targets established by the authority, whether in compliance with a direction under section 38 or otherwise, and (d) any local policing plan issued by the authority under section 8.

[21]Furthermore, a police authority is treated as a “local authority” for the purposes of, inter alia, Section 111 of the Local Government Act 1972 (see section 146A thereof), which provides: “111 Subsidiary powers of local authorities.(1) Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.

(2) For the purposes of this section, transacting the business of a parish or community meeting or any other parish or community business shall be treated as a function of the parish or community council.

(3) A local authority shall not by virtue of this section raise money, whether by means of rates, precepts or borrowing, or lend money except in accordance with the enactments relating to those matters respectively.

(b) Police Powers Regarding Vehicle Recovery

[22]As to specific provisions dealing with police powers to seize, recover and retain vehicles, the following are relevant: i) Schedule 4 of the Road Safety Act and Road Safety (Immobilisation, Removal and Disposal of Vehicles) Regulations 2009 permits “an authorised person or a person acting under the direction of the authorised person” to fix an immobiliser, to remove and dispose of vehicles which inter alia are unfit for driving and overloaded with goods (see sections 69 and 70 of the Road Traffic Act 1988). ii) S.165A/B of the Road Traffic Act 1988 and Road Traffic Act 1988 (Retention and Disposal of Seized Motor Vehicles) Regulations 2005 permits an authorised person (i.e. “a constable or such other person authorised by the chief officer”) to seize, retain and dispose of unlicensed vehicles and vehicles driven without insurance. iii) S.59 of the Police Reform Act 2002 gives a constable in uniform power to stop, seize and remove a vehicle where he or she has reasonable grounds for believing that the vehicle is being used on any occasion in a manner which contravenes s.3 or 34 of the Road Traffic Act 1988 (careless and inconsiderate driving and prohibition of off-road driving). S.60 of the Police Reform Act 2002 and the Police (Retention and Disposal of Motor Vehicles) Regulations 2002 permits “a constable or such other person authorised by the chief officer” to remove and retain the vehicle seized under s. 59 and release and dispose of the same. iv) S.99-105 of the Road Traffic Regulation Act 1984 and the Removal and Disposal of Vehicles (Traffic Officers) (England) Regulations 2008 provide a constable or traffic officer with power to remove vehicles which have been permitted to remain at rest on a road(a) in contravention of any statutory prohibition or contravention,

(b) in such a position or condition or in such circumstances as to cause obstruction to other persons on the road or likely to be a danger,

(d) have or appear to have broken down.

(c) Police Procedures for Security Vetting

[23]There are detailed protocols dealing with national vetting policy. These have been drawn up since at least 2003, and the current version (August 2010), delivered under the auspices of the Association of Chief Police Officers (and the equivalent in Scotland), is entitled “ACPO & ACPOS National Vetting Policy for the Police Community” (“the NVP”). The general “Policy Statement” of the NVP states, at paragraph 1.4:

“1.4 Following the HMIC report ‘Raising the Standard’ it is the view of both the ACPO and ACPOS Professional Standards Committees that each force should have a central Force Vetting Unit. In addition, they should appoint a Force Vetting Officer to co-ordinate and control all vetting processes within their force and to adhere to the ACPO/ACPOS NVP.”

Under “Procedure”, it is stated:

“2.1 There are two types of vetting procedures in operation within the police community: (i) Force Vetting – Includes Recruitment Vetting (RV), Management Vetting (MV) and Non-Police Personnel Vetting (NPPV) …”

Section 6 of the general provisions deals with “Force Vetting Levels”, and paragraph 6.3 states as follows:

“6.3 Non Police Personnel Vetting (NPPV) 6.3.1 The purpose of ‘Non Police Personnel Vetting’ (NPPV) is to provide a means of ensuring that persons other than police officers, police staff and members of the Special Constabulary, having physical or remote access to police premises, information, intelligence, financial or operational assets have been assessed as to their reliability and integrity. The procedure serves to reduce the risks of unauthorised disclosure or loss of sensitive police assets. 6.3.2 There are three levels of NPPV, Level 1, 2 and 3 and further details of the checks required for each are given in SOP 5.” (i) Force Vetting – Includes Recruitment Vetting (RV), Management Vetting (MV) and Non-Police Personnel Vetting (NPPV) …” 6.3.1 The purpose of ‘Non Police Personnel Vetting’ (NPPV) is to provide a means of ensuring that persons other than police officers, police staff and members of the Special Constabulary, having physical or remote access to police premises, information, intelligence, financial or operational assets have been assessed as to their reliability and integrity. The procedure serves to reduce the risks of unauthorised disclosure or loss of sensitive police assets. 6.3.2 There are three levels of NPPV, Level 1, 2 and 3 and further details of the checks required for each are given in SOP 5.”

[24]Standard Operating Procedure Number 5 (“SOP 5”) governs non police personnel vetting (“NPPV”). It is useful to set out section 3 Purpose of SOP 5 in full:

“3. Purpose 3.1 The purpose of ‘Non Police Personnel Vetting (NPPV) is to provide a means of ensuring that any persons other than police officers, police staff and members of the Special Constabulary having physical or remote access to police premises, information, intelligence, financial or operational assets have been assessed as to their reliability and integrity and thus suitability for clearance. The procedure serves to reduce the risks of unauthorised disclosure or loss of sensitive police assets. 3.2 NPPV relates to the vetting of individuals other than police officers, police staff and members of the Special Constabulary who require access to police premises without constant supervision, and/or police information, corporate databases, data networks or hard copy material, either through direct or remote access. These include, but are not limited to, statutory crime and disorder partners, HM Revenue and Customs, UK Borders Agency, third party agents, Police Authority staff and members depending on role, and a variety of contractors and volunteers, consultants, auditors and researchers. 3.3 If a non-police person declines or refuses to be vetted, their access to police assets will be restricted, along with those described in 3.4 below. 3.4 Non-police personnel, who are admitted to police premises but who are accompanied or remain under constant supervision and are not permitted access to police information systems or protectively marked material, need not be vetted. In these circumstances, existing procedures for the reception of visitors should apply. 3.5 In relation to the multifarious group of people to which NPPV applies, careful consideration should be given to the level of NPPV to be applied to each role, taking into consideration the information, intelligence and other assets, to which the individual will have access. This is to ensure that non-police personnel are not subject to a disproportionate level of vetting.”

Section 5 specifies the level of vetting for NPPV. It is common ground that Level 1 applied in this case, which is described as follows:

“5. Level 1. Limited Access – No Protectively Marked Assets 5.1 Level 1 applies to those persons having unsupervised access to police premises on an ad hoc and irregular basis but no access to any electronic systems and/or hard copy material. In the main this applies to utility workers such as plumbers, electricians etc and may, on occasions, apply to individuals on work experience etc if they have NO access to protectively marked information or electronic systems. 5.2 This level does not afford any access to protectively marked police material or assets. 5.3 Minimum Standard Requirement: PNC/CHS/CIS and INI/local intelligence and other non-conviction databases, including Special Branch on applicant only. 5.4 Length of clearance: 12 months.”

Section 10 of SOP 5 refers to Appeals/Reviews, and states:

“10.1 Applicants for NPPV have no right of appeal against a decision not to grant the relevant level of clearance. However, it is suggested as best practice that a review procedure is made available, as detailed in SOP [Standard Operating Procedure] 9. (my emphasis)” 3.1 The purpose of ‘Non Police Personnel Vetting (NPPV) is to provide a means of ensuring that any persons other than police officers, police staff and members of the Special Constabulary having physical or remote access to police premises, information, intelligence, financial or operational assets have been assessed as to their reliability and integrity and thus suitability for clearance. The procedure serves to reduce the risks of unauthorised disclosure or loss of sensitive police assets. 3.2 NPPV relates to the vetting of individuals other than police officers, police staff and members of the Special Constabulary who require access to police premises without constant supervision, and/or police information, corporate databases, data networks or hard copy material, either through direct or remote access. These include, but are not limited to, statutory crime and disorder partners, HM Revenue and Customs, UK Borders Agency, third party agents, Police Authority staff and members depending on role, and a variety of contractors and volunteers, consultants, auditors and researchers. 3.3 If a non-police person declines or refuses to be vetted, their access to police assets will be restricted, along with those described in 3.4 below. 3.4 Non-police personnel, who are admitted to police premises but who are accompanied or remain under constant supervision and are not permitted access to police information systems or protectively marked material, need not be vetted. In these circumstances, existing procedures for the reception of visitors should apply. 3.5 In relation to the multifarious group of people to which NPPV applies, careful consideration should be given to the level of NPPV to be applied to each role, taking into consideration the information, intelligence and other assets, to which the individual will have access. This is to ensure that non-police personnel are not subject to a disproportionate level of vetting.”

[25]Where “best practice” is followed, the “Process” is set out at section 4 of SOP 9 as follows:

“Scope of the Appeal and Review Processes 4.1 Where applicants are notified of an adverse vetting decision, they should be informed of the existence of the appeal/review procedures. 4.2 The following processes are to be used for appeals against, or reviews of, adverse vetting decisions; that is the refusal, withdrawal or suspension of clearance, and applies to the following forms of vetting: • Recruitment Vetting (V) • Management Vetting (MV) • Enhanced Management Vetting (EMV) • Non Police Personnel Vetting (review only) • National Security Vetting (NSC) at all levels • Transferees and Rejoiners (review only) 4.3 Requests for an appeal or a review must be made in writing and must be from the applicant themselves, or endorsed by the applicant. 4.4 When a written request for an appeal or review has been received, where possible, individuals will be provided with the reason for their refusal in writing, unless doing so would be likely to: • Damage national security; • Result in the force breaking any law; • Frustrate the prevention or detection of crime; • Impede the apprehension or prosecution of offenders; • Result in the disclosure of sensitive information; • Breach the confidentiality of any information provided in confidence. 4.5 It should be noted that the Chief Officer reserves the right to refuse appointment without giving reason under Section 6 Police Act 1996 and the Police (Scotland) Act 1967.” 4.1 Where applicants are notified of an adverse vetting decision, they should be informed of the existence of the appeal/review procedures. 4.2 The following processes are to be used for appeals against, or reviews of, adverse vetting decisions; that is the refusal, withdrawal or suspension of clearance, and applies to the following forms of vetting: • Recruitment Vetting (V) • Management Vetting (MV) • Enhanced Management Vetting (EMV) • Non Police Personnel Vetting (review only) • National Security Vetting (NSC) at all levels • Transferees and Rejoiners (review only) 4.3 Requests for an appeal or a review must be made in writing and must be from the applicant themselves, or endorsed by the applicant. 4.4 When a written request for an appeal or review has been received, where possible, individuals will be provided with the reason for their refusal in writing, unless doing so would be likely to: • Damage national security; • Result in the force breaking any law; • Frustrate the prevention or detection of crime; • Impede the apprehension or prosecution of offenders; • Result in the disclosure of sensitive information; • Breach the confidentiality of any information provided in confidence. 4.5 It should be noted that the Chief Officer reserves the right to refuse appointment without giving reason under Section 6 Police Act 1996 and the Police (Scotland) Act 1967.”

Submissions of the Parties

[26]Mr Gordon Nardell QC, on behalf of A, put his case succinctly. The Police Authority was exercising public powers in vetting A for security clearance, and owed him a duty to act fairly. The situation was analogous to that in R v Legal Aid Board, ex p Donn & Co

[1996] 3 All ER 1

. In Donn, the Claimants’ tender to provide legal aid to parties to group litigation against the Ministry of Defence was rejected in favour of another firm. The committee was advised by their officer that the Claimants had failed to recognise or address the existence of a conflict of interest arising from the fact that a member of the Claimants’ team of advisers was a Territorial Army officer. Ognall J accepted that the Legal Aid Board decision was amenable to judicial review (

[1996] 3 All ER 1

at 11f-j). The learned judge went on to find that the committee should have put the conflict issue to the Claimants and allowed them an opportunity to respond (14e – 15h).

[27]Mr Nardell submitted that what fairness required depended on the specific context. He accepted that security vetting for those non police personnel who would be working with the police is a sensitive area, and that some kinds of information arising in the context of detention and prevention of crime are of particular sensitivity: for example, information about the identity of an informer, or which might compromise a live investigation or covert intelligence-gathering operation. However, subject to such limitations, there was no good reason in principle why the police should not give some indication of the basis of their concerns about a particular individual, allow that individual an opportunity to respond and then explain why, if that was the case, security clearance has been refused. Indeed, “best practice”, as endorsed in Section 10 of SOP5, required as a minimum that the reason for refusal of security clearance should be given, even to non police personnel, unless there were legitimate grounds for withholding an explanation. Mr Nardell submitted that the content of the public law duty of fairness was certainly no lower than the minimum stipulated by “best practice”. He also submitted that paragraph 2.7 of Schedule 3 to the sub-contract between FMG and A (see paragraph 4 above) was not intended to regulate the rights and obligations of A vis-à-vis the Police Authority, but in any event such a provision could not exclude the public law duty of the Police Authority to act fairly.

[28]The principal argument in response by Miss Fiona Barton QC, on behalf of the Police Authority, was that the decision refusing security clearance was “non-justiciable” by this Court, in other words, that it was simply not amenable to judicial review. She relied on R (Tucker) v Director General of the National Crime Squad

[2003] EWCA Civ 57

[2003] ICR 599

. At paragraphs 24 and 25 the Court of Appeal approved a three stage test set out by Pitchford J (as he then was) in R (Hopley) v Liverpool Health Authority and others (unrep) 30July 2002.

[29]The first stage of the test was whether the Defendant was a public body exercising statutory powers. Miss Barton submitted that although the Police Authority was a pubic body, it was not exercising statutory powers in deciding whether to grant security clearance to A. The context was a contractual one, the decision being no more than the exercise of the vetting requirement under paragraph 2.7 of Schedule 3 of the sub-contract between A and FMG. Frequently vetting decisions are made pursuant to Part V Police Act 1997 (“Enhanced Criminal Record checks”) and are made via the CRB. Part V was not applicable in A’s case.

[30]The second stage was whether the function being performed was a public or private one. Miss Barton submitted that the security vetting of A was not the exercise of any public function. It was not performed for the greater good of the public at large but was an operational or management function for the efficient and effective operation of a contractual obligation.

[31]The third stage was whether the Police Authority was performing a public duty owed to the Claimant. Miss Barton submitted that there was no such duty towards A.

[32]Secondly, Miss Barton submitted that, even if the refusal of security clearance was justiciable in this Court, and even if the Police Authority had been required to act fairly, the Authority was not obliged by such a putative duty to indicate to anyone in the position of A the basis upon which it was minded to refuse him security clearance, or to explain, however briefly, the reason for the refusal. As was the position in Tucker security vetting involved material that – “by its nature cannot be disclosed to individuals without causing harm to the public interest.” The evidence filed by the Police Authority in its defence to the claim showed that the decision was based upon police intelligence, which came from three Forces and over 20 different sources. Where decisions were based on sensitive intelligence information the duty of fairness required no more than that the decision maker acted honestly and without bias or caprice.

[33]Thirdly, Miss Barton submitted that A had an alternative remedy, under Part IV of the Data Protection Act 1998 and the Freedom of Information Act 2000. The advantage of the alternative remedy was that if A was dissatisfied with the result of any complaint to the Information Commissioner he could appeal to the First-tier Tribunal (Information Rights). The tribunal has a well-developed process for examining information in order to determine whether disclosure should be made. This process may involve private inspection and hearings.

Decision

[34]I reject Miss Barton’s first submission that the refusal of security clearance is not justiciable by this Court or not amenable to judicial review. It seems to me that in this case the three limbs set out in Tucker are satisfied. First, the Police Authority was exercising statutory functions. The Police Authority has important and unique powers in relation to the seizure, recovery and retention of vehicles (see paragraph 22 above) and for the purpose of the exercise of those powers has chosen, under its general enabling powers (see paragraphs 20 and 21 above), to contract the task to FMG who, in turn, made the sub-contract with A. The whole operation has a strong and necessary statutory underpinning.

[35]Second, I do not accept that the function of police security vetting is a private one, even if it is referred to in the sub-contract between FMG and A. The Police Authority carries out security vetting in the public interest, to ensure that those non police personnel who are accorded the privilege of working with the police and assisting them with carrying out police functions are fit and proper persons to do so. I am fortified in that conclusion by the fact that ACPO has quite properly developed detailed protocols for discharging this public function, including, under “best practice”, provisions for review and statement of reasons in the event of refusal of security clearance. This conclusion can be tested in another way. If a Police Authority, as a matter of policy, carried out no security vetting of non police personnel who were to work with them, an appropriate public interest group, or even a concerned citizen, could, in my view, challenge such failure by judicial review, as a public law failure, not simply as an internal management oversight in settling the terms of private contracts.

[36]I am satisfied, therefore, that the decision to refuse security clearance to A had a sufficient “public law element” to found a claim for judicial review.

[37]There is a different way of looking at this particular issue, which has been explained by Professor Stephen Bailey in a clear and well-reasoned article in Public Law 2007 at pages 444-463. Professor Bailey sets out the issue as follows:

“The case law on judicial review and contracting shows that the courts have sometimes confused two different propositions. The first is that judicial review normally cannot be used as a vehicle for pursuing what is purely a claim for breach of contract or other private law cause of action. The second is that contracting decisions form an area where in some cases fundamental public law principles that would otherwise apply (and in the writer's opinion should apply) do not; the decision is not “amenable to judicial review”

. In both situations this is commonly explained in terms that there is an “insufficient public law element”. However, it is not sufficiently acknowledged that what may appear to be the same concept is leading to two distinct kinds of outcome. Furthermore, while the first is entirely reasonable, the second is anything but. The courts have attempted to articulate a special rule limiting the amenability of judicial review. What has emerged both is insufficiently clear to be workable and in some cases produces the undesirable result of limiting the proper reach of public law.”

[38]Referring to the extension of judicial review to non statutory bodies, he comments:

“It is submitted that the understandable caution to be exercised before extending the scope of judicial review in respect of non-statutory bodies exercising non-statutory functions is not appropriate when considering the scope of judicial review of exercises of statutory powers by statutory bodies, even where such exercises take the form of entering private law arrangements such as contracts. The requirement of a “public law element” is obviously needed to justify an extension of judicial review; different arguments are needed to justify its use to constrain the availability of judicial review against statutory bodies.”

[39]He then commends the approach followed by Elias J (as he then was) in R (on the application of Molinaro) v Kensington RLBC

[2001] EWHC Admin 896

;

[2002] LGR 336

, as follows:

“ “65. In my view, the fact that a local authority is exercising a statutory function ought to be sufficient to justify the decision itself being subject in principle to judicial review if it is alleged that the power has been abused. Nor do I see any logical reason why an abuse of power made pursuant to some policy should be treated differently to one made on a specific occasion. 66. Of course, in many circumstances the nature of the complaint is one that identifies no public law principle. In such cases the fact that the defendant is acting pursuant to statute is irrelevant. For example, if the Council sues for the rent due from a tenant, no public law issue arises. Indeed, in general questions of construction of the contract or breach will attract no special public law principles, and judicial review is not an appropriate procedure to resolve such disputes. The fact that a public body is a party to the proceedings is, in such cases, irrelevant to the action formulated or to the relief granted. There is no justification then for treating the local authority in any different way to private bodies. 67. But public bodies are different to private bodies in a major respect. Their powers are given to them to be exercised in the public interest, and the public has an interest in ensuring that the powers are not abused. I see no reason in logic or principle why the power to contract should be treated differently to any other power. It is one that increasingly enables a public body very significantly to affect the lives of individuals, commercial organisations and their employees.”

His Lordship cited a number of cases where decisions relating to contracts had been subject to judicial review to prevent an unlawful exercise of power.The important question in these cases was the nature of the alleged complaint:

“If the allegation is of abuse of power the courts should in general hear the complaint. Public law bodies should not be free to abuse their power by invoking the principle that private individuals can act unfairly or abusively without legal redress. But sometimes the application of public law principles will cut across the private law relationship and, in these circumstances, the court may hold that the public law complaint cannot be advanced because it would undermine the applicable private law principles.” ”

[40]He then justifies the approach of Elias J, as follows:

“The proposition that because a private person or body is entitled to act unfairly or irrationally, a public body should be similarly entitled, is unacceptable as a generalisation as it fails to take account of the obligation of public bodies to act in the public interest. For example, private enterprises exercising their commercial judgment as to what deals to do are hazarding their own money (subject to the duties owed by directors to shareholders); public bodies are spending public money, and commonly exercising powers not available to private institutions. The imposition of substantive and procedural public law obligations on the latter that would not apply to the former can, when done with due sensitivity to the context, be seen as promoting a better quality of decision-making in the public interest; it is certainly not just a matter of protecting the interests of the other contracting parties. Public law principles are sufficiently flexible to enable the court to ensure that a public body is not hamstrung in its commercial dealings except to the extent that a genuine public interest is at stake.”

[41]Having then comprehensively analysed the cases in different contexts, such as markets, employment and tendering, Professor Bailey summarised what he submits is the best approach to the relevant question, namely:

“It is submitted that in cases raising the question of the amenability of contracting decisions to judicial review: (1) the question should not be determined in the abstract by focusing solely on the nature of the decision, but by considering as well whether the particular claim raises a public law or a contractual ground; (2) the approach articulated in Molinaro provides the clearest and most satisfactory framework for addressing the issues that arise where contracts are entered in the exercise of a statutory power; (3) in addressing what can be a difficult question whether a challenge is founded on contract or public law, two considerations should be borne in mind: first, that the rule of law requires public bodies to be held legally accountable in respect of abuses of power and unfairness and, secondly, that public law principles properly applied need not distort the normal processes of commercial negotiations between parties simply because one party happens to be a public body; a remedy will only be available where the public interest is engaged.”

[42]In this case A raises a classic public law ground of challenge – A claims that he has not been treated fairly by a public authority in the exercise of its statutory functions. As matters stood before A brought this claim, he says that he had no idea why he had failed the security vetting, and he did not know why the Police Authority would not tell him the basis of its refusal. If Miss Barton were right in her submission, the Police Authority could with impunity (excluding the theoretical application of the complex and cumbersome private law action for misfeasance in public office) refuse security vetting for a wholly improper reason, unrelated to the need to promote the public interest. Such a state of affairs would, in my view, be completely incompatible with a modern system of administrative law.

[43]For the avoidance of doubt, I also find the third limb of Tucker to be satisfied. In this case, for the reasons already mentioned, the duty to act fairly was one owed in public law to A: it was not simply a case of the Police Authority carrying out an internal management function, with no duties owed to the subject of the security vetting.

[44]As to the actual content of the duty to act fairly in the present context, I have found this a more difficult question. I am not attracted by Miss Barton’s submission that the content is empty because clause 2.7 of Schedule 3 of the contract relieves the Police Authority of the burden of giving any explanation for refusal of security vetting. I see considerable force in Mr Nardell’s contention that clause 2.7 is intended to protect the parties to the contract, rather than to articulate the public law duty of the Police Authority. In any event I do not accept that by contract the Police Authority could lawfully reduce the extent of the duty to act fairly that would otherwise be imposed by public law.

[45]On the other hand this is a very sensitive area. Non police personnel have no right as such to work together with the Police. It is a special privilege to do so, and it is reserved only for those that the police confidently believe are fit and proper to do so, and for those in whom the police have absolute and unqualified trust. Such is the importance of that objective that, in my view, the Police Authority does not have to show that it has reasonable grounds for believing that a person has committed, is engaged in committing, or would commit, some relevant criminal offence, or has been, or would be, knowingly involved in the commission of such an offence. If the Police Authority has any basis at all for suspecting that a person might have been, or might be presently or might in the future be, implicated, even innocently, in activities that could be considered criminal, or might be associated, again even innocently, with criminal elements, it would be justified in refusing security clearance. In other words, in this context the Police Authority would be entitled to adopt an ultra precautionary standard, and those wishing to work with the police must expect it to do so.

[46]In turn the Police Authority must be able to draw widely on police intelligence to gather as much information as possible about the person who is subject to security vetting. Such information may well vary in specificity and reliability, but the Police Authority will draw on its long experience and expertise in the task of evaluating the information and in forming a picture of the person under scrutiny.

[47]Against this background, and taking into account the sensitive nature of the task, I do not believe that it would be appropriate to require the Police Authority to disclose in advance to the subject of the security vetting any basis for a contemplated refusal of clearance. To repeat, this is not an exercise where the Authority must show reasonable grounds that the person is not fit and proper to work with the police, and where fairness might mandate that the subject of scrutiny should have an opportunity to make representations about the grounds that are to be relied on. “Best Practice” in accordance with the relevant NVP does not specify any such procedure of prior notification, and I am not persuaded that public law principles require in this context such a procedure. However, it does seem to me that the giving of some explanation for the refusal of security clearance ordinarily can be accommodated within the vetting process, without putting at risk efficient and effective policing, and that a blanket denial of any explanation in each and every case cannot be squared with a duty to act fairly. From the point of view of the subject of security vetting, refusal of clearance is a serious matter, not just in respect of a possible contract but also in terms of potential effect on reputation. It may be that, if the subject is given information, he himself can provide further information, or seek to clear up any possible misunderstanding.

[48]Section 4 of SOP 9 provides that following refusal of security clearance the reason for refusal should be given, unless there is justification for refusing to give the reason. Such justification includes frustrating the prevention or detection of crime and impeding the apprehension or prosecution of offenders. In my view, against the background that I have explained, it is for the Police Authority, and for the Police Authority alone, to decide whether reasons for refusal can be given in any particular case, without putting at risk, in the broadest conceivable sense, the prevention, detection and prosecution of crime. In many instances the Police Authority may be able to provide a gist of the basis for refusal without putting at risk those objectives. But if the Police Authority believes in any particular case that to give a reason for refusal would put those objectives at risk, this Court, in my view, should not monitor the basis upon which the decision has been taken save in very exceptional circumstances where it is plain that the decision is flawed. Similarly, if the Police Authority does give information in explaining why security clearance has been refused, but refuses on request to give further information because it believes that to do so would put at risk the objectives mentioned above, this Court should intervene only in very exceptional circumstances. In this particularly sensitive context, this Court, in my judgment, should not generally seek to adjudicate whether the assessment of the Police Authority is reasonable or correct. As observed earlier, the Police Authority has the requisite expertise and experience to make such assessments, which may well involve balancing difficult and sensitive considerations, and this Court, which does not have the same advantages, should generally trust the Authority to decide reasonably and in the public interest.

[49]As to Miss Barton’s third submission, I believe, with respect, that it misses the point. As I have analysed this claim, it raises the important question whether in each and every case a Police Authority can refuse to give any explanation why it has rejected an individual under its procedures for security vetting. The Police Authority in this case maintained that a policy of blanket refusal was lawful, because the Authority was doing no more than engaging in a “private” activity and because in any event the content of a putative public law duty to act fairly had, on inspection, no content. Resort to the Data Protection Act 1998 and the Information Commissioner could not resolve that question, even if A might seek to use that Act to obtain information bearing on his rejection for security clearance. I am somewhat sceptical as to whether that route will in the event take him very far, but that also is beside the point.

Disposal

[50]In my view, A has succeeded in the core of his challenge, namely, that the Police Authority could not lawfully rely upon a policy of blanket refusal to give any information to any person who had been rejected for security clearance. As Miss Barton’s submissions made plain, the dominant justification for the stand taken by the Authority was that it was doing no more than engaging in a “private” activity and it could, therefore, more or less decide for itself, without the constraints of public law principles of fairness, what its policy should be in this context. For the reasons given, I have rejected that basis of justification. Furthermore, contrary to the position of the Police Authority, I have concluded that the public law duty of fairness does have a substantive content, even if that content falls significantly short of what A would like to see and what Mr Nardell, on A’s behalf, submitted was required by the duty of fairness in this case.

[51]During the course of these proceedings the Police Authority did provide further information to A, information that it maintained it was not obliged to provide under the law as it understood it to be. I believe that the Authority should consider this judgment and should re-consider the position generally. It may be that the Authority, on re-consideration, decides, in view of the important objectives that I have mentioned, that no further information can be provided to A beyond that which he has already received. However, as I have said, that is a matter for the Police Authority to determine, by reference to the applicable legal principles, and, in my judgment, any putative further challenge would need to be considered very carefully in the light of the observations in this judgment.