Introduction

The case of The Good Law Project, R (On the Application Of) v The Prime Minister & Ors ([2022] EWCA Civ 1580) was heard by the England and Wales Court of Appeal (Civil Division) on December 1, 2022. This legal dispute centered around the Public Records Act 1958 (PRA) and the enforceability of certain government-issued policies related to the use and preservation of electronic communications by ministers and officials.

Parties Involved:

• Applicant: The Good Law Project
• Respondents: The Prime Minister and other government officials

Key Issues:

1. Whether the duty under Section 3(1) of the PRA extends to preserving records before they are selected.
2. Whether there exists an enforceable public law duty for ministers to comply with eight specific government policies regarding electronic communications.
3. The lawfulness of the Dunn note issued to ministers regarding private email use.
4. The standing of the Good Law Project to bring the claim.
5. The appropriateness of granting any relief on appeal.

Summary of the Judgment

The Court of Appeal upheld the decision of the Divisional Court, concluding that:

• The duty under Section 3(1) of the PRA does not extend to preserving public records before their selection.
• The eight government policies concerning electronic communications are not legally enforceable under public law.
• The Dunn note, which addressed the use of private devices and email accounts by ministers, was deemed lawful.
• The Good Law Project's application lacked sufficient specification of relief sought, leading to the dismissal of the appeal.

Analysis

Precedents Cited

Legal Reasoning

The court meticulously analyzed the statutory provisions of the PRA, particularly Section 3(1), which mandates the arrangement for the selection and preservation of public records. However, it concluded that this duty does not extend to preserving records prior to their selection. The policies in question, which governed electronic communications, were deemed internal administrative guidelines rather than enforceable legal obligations.

The court emphasized the principle that not all executive policies create legal duties enforceable by judicial review. The policies lacked the necessary characteristics to be considered the "epitome of Government policy" and were often inconsistent or expression of guidance rather than strict rules.

Furthermore, the Dunn note, which attempted to reconcile conflicting policies regarding the use of private emails, was considered a lawful exercise of executive discretion aimed at enhancing security and consistency in communications.

Impact

This judgment clarifies the boundaries between internal government policies and legally enforceable obligations under public law. By affirming that not all policies are subject to judicial scrutiny, it reinforces the discretionary power of the executive in managing internal affairs. However, it also underscores the importance of clear and consistent policy formulation to avoid ambiguities that may otherwise lead to legal challenges.

For future cases, this decision sets a precedent that similar internal policies regarding administrative practices may not be enforceable unless they distinctly embody governmental policy impacting external parties or individual rights.

Complex Concepts Simplified

Public Records Act 1958 (PRA)

The PRA 1958 governs the management, preservation, and accessibility of public records in the UK. Section 3(1) specifically imposes a duty on responsible persons within government departments to select and preserve records deemed of permanent importance.

Judicial Review

Judicial review is a process by which courts assess the legality of decisions or actions taken by public bodies. It ensures that such bodies act within their legal powers and follow fair procedures.

Enforceable Policies

Not all government policies are legally binding. For a policy to be enforceable through judicial review, it must be part of the legal framework affecting external parties or individual rights, rather than internal administrative guidelines.

Standing

Standing refers to the right of a party to bring a case to court. In this context, The Good Law Project’s standing was questioned based on whether its interests were sufficiently affected by the policies in question.

Conclusion

The Court of Appeal's decision in The Good Law Project v Prime Minister & Ors underscores the limited scope of enforceable duties under the Public Records Act 1958. It delineates the boundary between internal government policies and obligations that can be upheld through public law mechanisms like judicial review. This judgment emphasizes the necessity for clear statutory directives when seeking to impose enforceable duties on public officials and reaffirms the principle that not all executive policies are subject to legal enforcement.

For legal practitioners and public administrators, this case serves as a crucial reference point in understanding the interplay between governmental policy-making and legal accountability, particularly in the realm of records management and electronic communications within the public sector.