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 Рmy 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.

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