Public Authority Decisions

Very often, public authorities will state that they have taken particular decisions because it was in “the public interest” for them to do so. In some instances, the term “public interest” may be used expressly by a public authority, for instance where it refuses to disclose a document to an individual who has made a request for the document under the Freedom of Information Act 2000. In other instances, a public authority may not use the term but may instead refer to some other justification that falls under the broader heading of “the public interest”. This can be particularly so in relation to limiting rights under the ECHR, as this can justified in the interests of, among others, national security and public health.

Where such public authority decisions are challenged in the courts – for example, by way of judicial review – judges face difficult questions about how closely they should scrutinise a decision. The essence of the difficulty concerns the fact that public authorities will often be exercising powers that have been given to them by the Westminster Parliament or by the devolved legislatures. While this does mean that there should no judicial scrutiny of decisions, the courts are aware that the power in question has not been delegated to them and that they should not assume the powers of the original decision-maker. There can also be questions of relative expertise; that is, the courts may not be as well-informed about certain matters as is the public authority that made the decision.  

A particularly high-profile example of public authority use of the term “public interest” – and of a judicial willingness to accept such use – is R (Corner House) v Director of the Serious Fraud Office [2008] UKHL 60. Corner House here challenged a decision of the Director of the Serious Fraud Office whereby he ended an investigation into allegations of bribery in the context of arms contracts between BAE Systems Ltd and the Kingdom of Saudi Arabia. The decision, which was said to have been taken for reasons of “public interest”, was made against a backdrop of Saudi threats to the effect that close intelligence and diplomatic contacts between Saudi Arabia and the UK would cease in the event that the investigation continued. Holding that the Director of the Serious Fraud Office had acted lawfully, the House of Lords pointed to a number of apparently competing public interests, namely the public interest in upholding the rule of law and the public interest in safeguarding the lives of British citizens. While the House of Lords noted the importance of upholding the rule of law, it was of the view that the Director was also entitled to have regard for the interest of public safety when reaching his decision. It was on this basis said that he had not acted unlawfully when ending the investigation.

Public authorities may also refer to “the public interest” when frustrating an individual’s legitimate expectation that they will receive something from the public authority (such as social housing, or care facilities). This is a complex area of law that has developed much over the past 15 years and which has seen the courts emphasise that, where a public authority has told an individual that he or she will receive something, the authority should generally be held to that representation. However, while this is intended to prevent the “abuse of power” by decision-makers, the law does recognise that there may strong reasons of public interest for resiling from a promise (for instance, a lack of or a reduced levels of funding ). Nevertheless, a decision-maker that wishes to avail itself of such an argument must be able to convince the court that is “fair”, in the overall circumstances, to disappoint the individual’s expectation. Should it not be able to do so, it will be said to have acted unlawfully. (For the seminal case in the field see Coughlan v North & East Devon Health Authority [1999] EWCA Civ 1871)

For the approach that the courts adopt to public interest arguments in relation to limitations on rights see EU law; European Convention on Human Rights.

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