Contractual security vetting by the police: public or private law?

A, R (o.t.a A) v. Chief Constable of B Constabulary [2012] EWCA 2141 (Admin), Kenneth Parker J, 26 July 2012, read judgment

The public/private divide still gets lawyers excited, even in an Olympic summer, and for good reason – my image is simply to cool the fevered brow of those fresh from the stadium or the beach. Now for the problem met head on in this case. Generally speaking, parties to a contract may treat the others how they please, as long as that treatment does not offend the terms of the contract or specific consumer protection rules. But, equally generally, a public body is obliged to treat others in accordance with public law rules of fairness, and can challenge unfairness by judicial review. And this case is a good example of the intersection between these principles.

A had run a breakdown recovery service for the police for some years. The police then interposed a main contractor, FMG, who awarded the contract to A for the continuation of the job, now as a subcontractor. But the sub-contract, understandably enough, provided that its award was subject to vetting by the police. And the police then refused to give A clearance. Why? The police would not say, even when A threatened proceedings. And they said that they did not have to. Their line in court was that it was all governed by the contract, and the courts had no business in poking its nose into their reasoning – in the jargon, it was non-justiciable. They relented to some extent in the course of the proceedings, by giving some information, but still said that they were not obliged to do so.

Kenneth Parker J applied a three stage test, in rejecting the central arguments of the police:

The first stage of the test was whether the Defendant was a public body exercising statutory powers. [Counsel for the police] submitted that although the Police Authority was a public body, it was not exercising statutory powers in deciding whether to grant security clearance to A. The context was a contractual one, the decision being no more than the exercise of the vetting requirement under ….the sub-contract between A and FMG.

The second stage was whether the function being performed was a public or private one. [Counsel] submitted that the security vetting of A was not 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.

The third stage was whether the Police Authority was performing a public duty owed to the Claimant. [Counsel] submitted that there was no such duty towards A.

As for the first question, the judge found that the police authority was exercising statutory functions in respect of the seizure and recovery of vehicles. More widely, in response to the second, the functions of police security vetting were not a private function, even if the contractual basis of it was derived from the sub-contract. After all, it was carried out in the public interest – making sure that suspect people do not enjoy access to police property and information. Finally, the public law duty was owed to A, rather than it being a purely internal police matter.

The judge also grappled with the underlying intellectual problem in these cases, finding a resolution in the earlier first instance decision by Elias J in Molinaro:

If the allegation is of abuse of power the courts should in general hear the complaint. Public law bodies should not be free to abuse their power by invoking the principle that private individuals can act unfairly or abusively without legal redress. But sometimes the application of public law principles will cut across the private law relationship and, in these circumstances, the court may hold that the public law complaint cannot be advanced because it would undermine the applicable private law principles.

But public law principles properly applied need not distort the normal processes of commercial negotiation between parties; a remedy will only be available where the public interest is engaged.

The judge therefore held that the police were wrong in saying they owed no public law duty of fairness to A.

But this was not the end of the story. The judge found it more difficult to outline the content of that duty. The police would be entitled to adopt an ultra-precautionary approach to an application for information, based upon police intelligence. Equally, they would not be bound to provide full details of the grounds relied on in not giving clearance, in advance, so as to enable A to comment or rebut them. But he thought that the police were obliged to give some explanation for the refusal, and in many cases the gist of the reasons. Once that was provided, it would not generally be for the Court to adjudicate the reasonableness or otherwise of the police’s decision; the Court should only intervene in exceptional circumstances.

The upshot was that the blanket refusal to give any information was quashed. The police had then to decide whether they ought to provide any further information over and above that provided during the course of the proceedings – that was for them, and A could not assume that more information would necessarily be forthcoming once the police had applied the terms of the judge’s judgment correctly.

An important case for any type of public procurement, where contract hits public law, and the decision sets out some guiding principles to assist in the resolution of these disputes which are far from easy to determine.

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