IN THE HIGH COURT OF JUSTICE

Claim no: CO/1294/2015

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT
BETWEEN:
THE QUEEN
(on the application of)
THE GULF CENTRE FOR HUMAN RIGHTS
Claimant
-and THE SECRETARY OF STATE FOR JUSTICE
Defendant

SUMMARY GROUNDS OF RESISTANCE

Introduction
1.

For all the Claimants assertions o f complexity (and controversy) surrounding the
Governments common law powers, the position is straightforward and the issue is
narrow.
(i)

There is no dispute that Ministers enjoy common law (or third source)
powers.

(ii)

There is equally no dispute that such powers are constrained by the ordinary
operation of public law principles.

(iii)

At the permission stage, the Secretary of State is content for the Court to
assume, in the Claimants favour, that there is a further constraint: that such
powers can only be exercised fo r the public benefit, and fo r identifably
governmentalpurposes (per Camwath LJ in Shrewsbury, at 48).

2.

Given, therefore, that the Claimant only seeks to challenge the Secretary of States
decision to establish and operate Just Solutions International (JSi) on the basis that JSi
fails the additional constraint identified by Camwath LJ, the issue is simply whether
the Secretary of States decision was lawfully made having regard to that constraint.

3.

JSi was created in order (a) to further the UKs broader policy objectives (by
promoting safe and effective offender management services in foreign jurisdictions),
(b) to enhance the UKs bilateral relations with the countries it would engage with.
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while also (c) generating earnings for HM Treasury - itself both a public benefit and
an identifiable governmental purpose. The decision under challenge was therefore,
and plainly, lawful.
4.

That position notwithstanding, the Secretary of State is in any event (and

independently of these proceedings) conducting a review o f the matters underlying
this claim. The Court and Claimant have previously been informed of this in
correspondence. It is anticipated that the process will be completed by the end of
August 2015, In the circumstances, it might be considered appropriate to postpone
further conduct of these proceedings, including any decision on permission, until after
the review has been completed.

5,

On procedural issues:
(i)

The Secretary of State does not oppose the Claimants application to substitute
himself for the former Claimant (AB).

(ii)

The Claimants application for a Protective Costs Order (PCO) has been
resolved by agreement - at least up to the point of a permission decision (if
permission were granted, the Defendant would ask the Court for 14 days to
consider and to respond to the Claimants application for a full PCO).

(iii)

In the particular circumstances of this claim, the Secretary of State does not
pursue points on delay or, following the Claimants substitution for AB,
standing.

Factual background
JSi
6.

JSi was established in 2012 in response to increasing numbers o f requests for

technical support and assistance being received from foreign governments, which
were being responded to on an ad hoc basis, and without full consideration being
given to the commercial implications of the assistance being provided. JSi was
therefore created as part of the National Offender Management Service (NOMS)
within the Ministry o f Justice (MoJ). JSi has no legal personality or independent
status. It is an identity which was created by NOMS to promote NOMSs work
overseas for the purposes set out above,

7.

Through JSi, NOMS provides consultancy services and assistance to overseas

governments in the areas in which NOMS has particular expertise, i.e. prison services,
offender management, and criminal justice generally. These services are provided by
JSi through contractual agreements reached with foreign governments, and their
relevant authorities. Through these agreements, NOMSs expertise in providing
custodial and offender management services in accordance with international
standards and human rights law can be shared with foreign governments, with a
financial benefit accruing to the UK. All of JSis work is self-funded - i.e. none of
NOMSs budget is spent on these activities. Instead, the work is funded by foreign
governments through the contracts entered into, with a net financial benefit to the UK.
2

8.

Any bid made by JSi to a foreign government is now subject to an assessment

pursuant to HMGs Overseas Security and Justice Assistance (OSJA) guidance prior
to any assistance being provided: see Annex A. The OSJA guidance was first
introduced in 20! 1, and revised in 2014. It is directed toward ensuring that consistent
decision-making processes are adopted (and specifically that human rights risks and
international law considerations are addressed) whenever policy decisions are taken
on UK engagement in justice and security assistance overseas. The guidance is
therefore directed toward the decision-making process to be adopted by Government
departments in such cases, rather than the substantive decisions themselves. As the
guidance itself states (at 7):
Neither the Guidance nor (he accompanying Checklists create any new
substantive policy or legal obligations; rather they are designed to ensure that
all decisions involving security and justice assistance are undertaken
consistently with a thorough and comprehensive assessment o f the impact
upon human rights and IHL risks that such assistance may have.

The Saudi Arabian bid by JSi

9.

One bid made by JSi last year concerned a proposal that NOMS conduct an analysis
of the current resource and training needs of the prison service in Saudi Arabia with a
view to the development of a staff development and training programme within the
General Directorate of Prisons. It is this bid which the Claimants challenge appears
ultimately to be directed toward.

10.

JSis proposal was submitted on 31 August 2014 as part of a competitive process. A

Memorandum o f Understanding on judicial co-operation between the UK and Saudi
Arabia was signed on 11 September 2014. Following feedback from the Saudi
authorities, the proposal was revised on 7 November 2014. A final revised proposal
was submitted on 27 February 2015. The Saudi authorities are yet to inform NOMS
of their response to this final proposal.

11.

Moreover, JSis bid was the subject of assessments pursuant to the OSJA guidance
both prior to both the initial bid on 31 August 2014, and before the final bid revision
on 27 February 2015. (No OSJA assessment was conducted for the purposes of the
intermediate revised bid as there had been no relevant change in circumstances
between 31 August and 7 November 2014.) In each instance, the OSJA assessment
was conducted with the active involvement of both the MoJ and the Foreign Sc
Commonwealth Office.3

G rounds
12.

Having originally sought to challenge JSis approach to the Saudi Arabian authorities
on five grounds1, the Claimant now relies on a single objection (formerly ground 3),
namely that the Secretary of State had no power to create or operate JSi.

Common law (or 'third source') powers in principle

13.

JSi was created through the exercise by the Secretary o f State of his common law
powers, otherwise known as third source powers in order to distinguish them from
powers derived from statute and the royal prerogative.

14.

The existence of such common law powers is clear and established - see eg two
decisions of the Court of Appeal directly on point: R v Secretary o f Stale for Health,
ex parte C [2000] I FLR 627 (Lord Woolf MR, Hale LJ, and Lord Mustill) at Annex
B, and Shrewsbury and Atcham BC v Secretary o f State fo r Communities and Local
Government [2008] EWCA Civ 148 (Waller, Carnwath, Richards LLJ) at cb/t212*4.

15.

The exercise by a Minister of his common law powers is constrained by the ordinary
restraints of public law and constitutional principle:
(i)

As Carnwath LJ explained in Shrewsbury at 44: That decision [ex parte C],

which is binding also on us, confirms that the powers o f the Secretary o f State
are not confined to those conferred by statute or prerogative, but extend,
subject to any relevant statutory or public law constraints, and to the
competing rights o f other parties, to anything which could be done by a
natural person

(ii)

To the same effect, see Richards LJ at 72-74:

u72. As the first instance judge whose decision was upheld by the Court o f
Appeal in R v Secretary o f Slate fo r Health, ex p. C. [2000j I FLR 6271 took a
broad view o f those powers, and nothing in the materials deployed before us in
the present appeal has caused me to change my mind. The Court o f Appeals
judgment in that case is not only determinative o f the issue at this level (see
paras 44 and 49 o f Carnwath U 's judgment) but was in my view correct. ...
74, 1 accept, o f course, (hat such powers cannot override the rights o f others
and, when exercised by government, are subject to judicial review on ordinary
public law grounds

(iii)

Waller LJ agreed: see 78.

1 The former Claimants pre-action letter asserted (1) A failure by the SSJ to apply the OSJA guidance in
pursuing a bid with the Saudi authorities; (2) The irrational application of the OSJA guidance by the SSJ in the
same context; (3) the creation and operation of JSi was ultra vires; (4) the SSFCA failed to apply its Strategy
for Abolition of the Death Penalty 2010-2015 in pursuing the bid in Saudi Arabia; and (5) the same policy is
applied inconsistently by the SSFCA giving rise to a serious risk of unfairness:$ee cb/2-239ff. For HMGs
response, see cb/2-259ff
2 Indeed, the Claimant accepts that such powers exist: see Grounds at 4(i) & 33(ii); indicating only that it
reserves its position on this point in the event that the claim proceeds to the Supreme Court.

16.

The only issue on which the Court of Appeal in Shrewsbury expressed a possible
degree of divergence of (obiter) opinion was whether there is in addition a further
constraint.
(i)

The potential further constraint was identified by Camwath LJ: as an organ

o f government, it can only exercise those powers fo r (he public benefit, and for
identifiably 'governmentalpurposes within limits set by law' (48).

(ii)

On this point, Richards LJ stated: *7 think it unnecessary and unwise to

introduce qualifications along the lines o f those suggested by Camwath LJ at
para 48, to (he effect that they can only be exercised fo r (he public benefit' or
for 'identifiably 'governmental' purposes'. It seems to me that any limiting
principle would have to be so wide as to be o f no practical utility or would risk
imposing an artificial and inappropriate restriction upon the work o f
government (74).

(iii)

Waller LJ, although instinctively in favour of some constraint on the

powers by reference to the duty to act only fo r the public benefit, considered
that until one has actual facts by reference to which the matter can be fully
tested, it is unwise to say more (81).

(The Claimant is thus wrong to suggest that in Shrewsbury, the majority, Camwath
and Waller LU, held that such powers could only be exercised fo r the public benefit,
and fo r identifiably 'governmental' purposes' (Grounds, 33(iv)), Waller LJ
expressly declined to reach a concluded view on the point, and in any event all the
views expressed were strictly obiter.)
17.

The questions whether the views of Camwath LJ or Richards LJ should prevail and
whether the difference between them is significant do not have to be resolved at least
for the purposes o f this permission decision. The Secretary of State is content, as
already noted, to proceed on the assumption that the additional constraint identified by
Camwath LJ exists.

18.

If it does, the question whether something is done for the public benefit or for
identifiably governmental purposes must be approached by asking whether the
Secretary of State could rationally so have concluded. That is the correct approach
given that assessment of eg the public benefit is paradigmatically for the Government
to assess, and is a matter of which a range of reasonable, different views can properly
exist.

The exercise o f common law powers in the present context

19.

It is submitted that JSi (strictly, NOMSs work through JSi) is plainly fo r the public
benefit* and exists and operates fo r an identifiable 'g overnmental purpose\ The
position is a fortiori if, as the Secretary of State submits, the correct approach is one
o f rationality.

20.

JSi was created in order to further the UKs broader policy objectives by promoting
UK standards of offender management services in foreign jurisdictions. Through JSi,
it was anticipated that the UKs bilateral relations with the countries JSi would engage
with would be promoted. JSi would generate earnings for Government so as to
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achieve these objectives at a lesser or no cost to the taxpayer, or so as to generate a

surplus,
21.

There could be no proper complaint if the same assistance offered by JSi were to be
provided to foreign governments without payment in return. The Claimants position
must, therefore, be that it is generation of earnings for Government, or the defrayment
of the cost to the taxpayer through payments from the foreign government, which
creates unlawfulness. That is untenable.
There is nothing in principle to preclude
the Government from acting for the public benefit and in pursuit of governmental
purposes through the vehicle of a commercial entity.

Conclusion
22.

The Court is therefore invited either to defer its decision until after the Secretary of
States review which is anticipated to be completed by the end of August 2015; or to
refuse permission. In the event, that permission is refused, the Secretary of State will
claim his Mount Cook costs, subject to the existing and agreed PCO.

JAMES EADIE QC
BEN WATSON
29 JULY 2015