R (on the application of A) v Secretary of State for the Home Department [2021] UKSC 37

In brief

The Supreme Court dismissed a challenge to the Child Sex Offender Disclosure Scheme Guidance, a non-statutory Home Office document telling police forces how to handle requests from members of the public [4], [7], [85]. The case matters for the test it sets for judicial review of published policy and guidance, not for its facts. A court asks whether the policy authorises or approves unlawful conduct by those it is addressed to [38]; that is done by comparing what the law requires with what the policy, read objectively, tells people to do [41], and a policy need not be a complete statement of the law [39]. The Court identified three kinds of case in which a policy can be unlawful for what it says or omits about the law: a positive misstatement of law that induces a breach, a failure to give accurate advice where the authority is under a duty to do so, and a policy that purports to give a full account of the law but leaves a misleading picture [46]. Wider tests based on an unacceptable risk of unfairness were rejected [64]-[66], [75]. Applying the test, the Guidance was lawful [42], [54], [85].

Key provisions

• para-38 — The test: does the policy authorise or approve unlawful conduct? : Per [38], the test comes from Gillick as read by Lord Sales and Lord Burnett: does the policy in question authorise or approve unlawful conduct by those to whom it is directed? The court intervenes not because the policy is irrational but because a public authority has, by issuing it, positively authorised or approved unlawful conduct by others. Per [34], 'permit' in that test means something like 'sanction', that is positively approve, not merely that a course of action is not forbidden.
• para-41 — Compare the law with the policy, read objectively : Per [41], the test calls for a comparison of what the relevant law requires with what the policy says a person should do, as objectively construed; if the policy directs them to act in a way that contradicts the law it is unlawful. It does not depend on a statistical analysis of how often people might fail to comply [41], [65]. Per [34], the policy is read objectively having regard to its intended audience.
• para-46 — Three categories of unlawful policy : Per [46], a policy may be unlawful by reason of what it says or omits to say about the law in three types of case: (i) a positive statement of law that is wrong and will induce a person who follows the policy to breach a legal duty; (ii) an authority under a duty to provide accurate advice about the law fails to do so, by misstatement or omission; (iii) an authority not under a duty to issue a policy decides to do so and purports to give a full account of the legal position but, by misstatement or omission, presents a misleading picture of it. Where a Secretary of State issues guidance to his or her own staff, the context is likely to bring it within category (iii) [46]. In a category (iii) case the author need not go into full detail on how a discretion is exercised in every case [47].
• para-39 — No duty to produce a textbook statement of the law : Per [39]-[40], there is often no obligation on an authority to issue a policy at all, and none for a policy to be a detailed and comprehensive statement of the law equivalent to a textbook or a judgment; so a court has no basis to strike a policy down for failing that standard. A more demanding test would discourage authorities from issuing policy and would draw courts into reviewing the drafting of policies [40].
• para-63 — Unacceptable-risk and inherent-unfairness tests absorbed into Gillick : Per [63]-[66], whether a policy is unlawful turns on whether it can be operated lawfully or imposes requirements that show at the outset that a material and identifiable number of cases will be dealt with unlawfully; a free-standing test of 'unacceptable risk' that an individual will be treated unfairly was rejected as wider than and inconsistent with Gillick. Per [75], the Divisional Court's formulation in W and the Court of Appeal's in BF (Eritrea) are incorrect to the extent they depart from the Gillick test. Per [80]-[83], a separate access-to-justice principle (UNISON) governs measures that impede access to courts.

When relevant

Public-law challenges to published guidance or policy issued by a public body, and the assessment of whether such guidance misstates the law (for example guidance about the Equality Act 2010 issued by a regulator or prosecuting authority, as in GLP-EHRC-2026 and SEXMATTERS-DPP-EWHC-2026). Not a test for the lawfulness of a private employer's or service provider's own policy. Peripheral to the toolkit's subject matter: the judgment says nothing about trans people, the Equality Act 2010 or any protected characteristic [1]-[85]. Decision support, not legal advice.