Police security clearance and public law powers

August 27, 2012

The Administrative Court recently found that a police authority could not alter the fundamental public law nature of security clearance functions by considering them to be mere private law contractual matters. Nicholas Dobson reports.

Public authorities discharging public functions are governed by public law. So much seems clear. But where there are also commercial or contractual considerations, confusional fog can start to swirl in thickly. Such was so in the facts underlying R (A) v. Chief Constable of B Constabulary [2012] EWHC 2141 (Admin), a decision of Kenneth Parker J on 26 July 2012.

The Claimant (A) was a sole trader, providing (amongst other things) vehicle hire, breakdown and recovery services. When A entered into a subcontract with FMG (which provided vehicle recovery services to the Constabulary) he was required to undergo security vetting. A did not receive clearance but the police would not disclose the reasons for this. They indicated simply that security clearance was not issued: "as a result of information held by police for a policing purpose." However, the police said they were "unable to disclose the nature of that information."

Contentions of the Parties

In essence, A argued that the Police Authority was exercising public powers in vetting A for security clearance, and therefore owed him a duty to act fairly. But whilst fairness was context sensitive and some information of particular sensitivity might compromise a live investigation or covert intelligence-gathering operation, as the Judge summarised A’s submission:

". . . 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, submitted A, ‘best practice’, as endorsed within standard police operating procedures 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.

However, the Police Authority contended that the decision refusing security clearance was ‘non-justiciable’ by the Administrative Court, in other words, that it was simply not amenable to judicial review. This was in the light of the three-stage test approved by the Court of Appeal in R (Tucker) v. Director General of the National Crime Squad [2003] EWCA Civ 57, namely that:

(i) Whether the defendant was a public body exercising statutory powers;

(ii) Whether the function being performed in the exercise of those powers was a public or a private one; and

(iii) Whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration.

As to (i) the Police Authority submitted that although it was a public body, it was not exercising statutory powers when deciding whether to grant security clearance to A. The context was contractual, the decision being no more than the exercise of the vetting requirement under the relevant paragraph of the sub-contract between A and FMG. Regarding (ii) the security vetting of A was not (so it was argued) 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. And on the third element of the above test, the Authority submitted that there was no such duty in these circumstances owed to A.

In addition, 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. Furthermore, so the Authority also argued, A had an alternative remedy, under Part IV of the Data Protection Act 1998 and the Freedom of Information Act 2000 which offered its own appeal process. This was despite the fact (as the Judge had noted) that the Claimant’s Data Protection Act enquiry had yielded no relevant information and had been for him "a wild goose chase".

Court’s Decision

Kenneth Parker J rejected the Authority’s submission that the refusal of security clearance was not justiciable by the Administrative Court nor amenable to judicial review and found all three elements of the test approved in Tucker to have been satisfied. The Authority had been exercising statutory functions in relation to the seizure, recovery and retention of vehicles and on this basis set up the relevant contractual arrangements. There was therefore strong and necessary statutory underpinning. Neither did the Judge accept that security vetting was a private function. For the Authority carries out security vetting in the public interest, to ensure that those non police personnel who have the privilege of working with the police and assisting them in the discharge of police functions are fit and proper persons to do so. Indeed if there were no such security vetting this could be challenged as a public law failure. The Court was therefore satisfied that there was a sufficient public law element to found a judicial review.

Kenneth Parker J also noted two useful considerations to be borne in mind when addressing "what can be a difficult question whether a challenge is founded on contract or public law". These were identified as follows by Professor Stephen Bailey in (what the Judge referred to as ‘a clear and well-reasoned article in Public Law 2007 at pages 444-463’):

". . .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." (Emphases added).

As the Judge pointed out, the Claimant has raised a classic public law ground of challenge, namely that he has not been treated fairly by a public authority in the exercise of its statutory functions. For A had had no idea why he had failed the security vetting and did not know why the Authority would not tell him the basis of its refusal. The Court remarked that if the 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, . . . be completely incompatible with a modern system of administrative law." Kenneth Parker J also found the third limb of Tucker to have been met i.e. in the circumstances "the duty to act fairly was one owed in public law to A". He also did 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.

However, he was more cautious over the actual content of the duty in the present context. Whilst he did not accept that the Authority could by contract lawfully reduce the extent of the duty to act fairly that would otherwise be imposed by public law, on the other hand the area in question was a very sensitive one. In circumstances where the police expect to have in fit and proper persons an "absolute and unqualified trust", the Authority ". . .would be entitled to adopt an ultra precautionary standard, and those wishing to work with the police must expect it to do so". Consequently, "taking into account the sensitive nature of the task" the Judge did not consider it ". . .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." And in the Court’s view, 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".

Nevertheless, some explanation for refusing security clearance can usually be accommodated within the vetting process "without putting at risk efficient and effective policing". For "a blanket denial of any explanation in each and every case cannot be squared with a duty to act fairly." However:

". . .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."

But the Authority may often be able "to provide a gist of the basis for refusal without putting at risk those objectives". However, "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."

And as for the Authority’s submission that the Claimant had an alternative remedy under the Data Protection Act 1998, this missed the point since it would not have resolved the central question about whether it was lawful to give a blanket refusal to explain why an individual had not received security clearance. In the circumstances the Judge noted that the Claimant had succeeded in his core 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".

Comment

Public law regulates the discharge of public functions i.e. those conferred by statute or otherwise to be exercised in the public interest, usually with a significant element of public funding. On the other hand, private functions are those conducted purely for the internal benefit of the organisation itself (and its proprietors) and are regulated by private law e.g. contract and tort.

This case usefully illustrates that whilst a public body may use a contractual mechanism to facilitate a public function, that in no way changes the essential public nature of the function in question. And although (as in the instant case) a particular public function may implicitly confer a significant amount of discretion upon the discharging authority, that discretion must be used properly for the statutory purpose in question. But whilst the courts will be slow to interfere with such exercise of discretion, they will do so if there is an obvious flaw.

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for ACSeS. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..

Summary Points

A 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.
The use of contract to facilitate discharge of a public function did not render that function private.