Should the Limbu test be applied more widely?

Transparency and certainty are requirements of administrative law. A public body whose decision or ?policy lacks the necessary transparency or certainty ?may find itself the victim of ?a successful judicial review. ?A recent case on the regulation of clinical trials (R (Richmond Pharmacology Ltd) v Health Research Authority [2015] ?EWHC 2238) suggests that the requirements of transparency are more onerous than was once thought, and that they apply in ?a wider range of circumstances.

Pre-existing law

In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, a case concerning policies under which foreign nationals could be detained pending deportation, Lord Dyson said: ‘The rule of law ?calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised... The individual has ?a basic public law right to have his or her case considered under whatever [lawful] policy the executive sees fit to adopt... there is a correlative right to know what that currently existing policy is’. 

R (Limbu) v Secretary of State for the Home Department [2008] EWHC 2261 similarly placed the requirement in the context of the principle of legality, citing European Convention on Human Rights jurisprudence to the effect that: ‘the legal basis [of a rule] must be accessible and foreseeable... the law must indicate the scope of any... discretion with sufficient clarity to give the individual adequate protection against arbitrary interference.’ In that case, instructions to immigration officers were struck down ?as being ‘so ambiguous as ?to... mislead.’ So far, so uncontroversial.

Richmond case

By the time Richmond came ?to trial, it concerned only the legality of certain statements in an FAQ document on the Health Research Authority’s (HRA) website. Richmond (a company in the business of conducting clinical trials) argued the HRA was wrongly asserting that there was a legal obligation to register certain clinical trials where no such legal duty existed. The HRA replied it did not assert there was any such legal duty, but it did assert there were ethical and professional obligations which required such registration.

Mr Justice Jay observed there were both legal and ethical obligations imposed on those conducting clinical trials. The regulator was not limited to legal obligations, and was entitled to state what the consequence of a breach of an ethical obligation would be (although in fact it had said there would at present be no consequences). 

However, an entity being regulated had to know ‘exactly where it stands in relation to the consequences of any breach.’ ?The judge agreed the HRA had not asserted that ethical duties were legal duties, but found that in some passages on its website it had not distinguished between the two sources of obligation and had simply referred to an ‘existing responsibility’. 

In some cases that responsibility was both legal ?and ethical, and in a limited number of cases was ethical ?only. Applying the Limbu test, ?the judge held that some aspects ?of the published material were therefore ‘so ambiguous as to... mislead’, also doubting obiter that the test for unlawful lack ?of transparency is in law quite ?so high. 

Discussion

It seems a regulator is unlawfully misleading if it states there ?is a requirement imposed on ?a regulated body without ?also stating the nature of the requirement. And yet there ?are obvious practical and legal problems with the case. 

First, it assumes it is the regulator’s duty to educate ?the regulated, not only to the existence but also to the origin of their obligations. The HRA acted unlawfully because it did not tell Richmond and others which of their duties were legal and which were ethical only. The obvious objection is that the obligation to find out what the law is surely falls on the regulated entity, not the regulator. It is easy to see that a regulator which misunderstands the law and asserts a legal duty where there is none would be acting unlawfully. It is much ?less easy to see that a regulator (accurately) describing a duty but not applying any label to it should be tarred with the same brush.

Worrying though that may ?be to public bodies, the bigger point is the suggestion that the Limbu test of ambiguity that is positively misleading is set too high. Limbu itself does not purport to be the last word on the question, and it is certainly open to the Administrative Court to apply the test more widely and vigorously than it has done to date.

Would this be desirable? Ambiguity in policies or decisions is never welcome, but if it does not at least have real potential ?to mislead, it is hard to see that it should be unlawful. The courts are rightly cautious of being asked to rule on the substantive merits of a public body’s actions. It must surely be still less advisable that they should ?begin acting as their subeditors. Until the position is clarified, public bodies would be well advised to cast a critical eye over their publications, ensuring as best they can that a claimant ?will not be able to persuade a judge that they are in any way unclear.

Stephen Hocking is a partner at DACBeachcroft @DACBeachcroft www.dacbeachcroft.com