Mark Tattersall, R (on the application of) v NHS England

This case is about a provision which I will call “the Curtailment Provision”. It is found within a scheme called the “Gold Guide”, whose full title is “Reference Guide for Postgraduate Foundation and Specialty Training in the UK”. The Gold Guide is a published document available online. It confers the right of appeal to which the Curtailment Provision relates. The Curtailment Provision, which first appeared in the 8^th edition of the Gold Guide (31.3.20) (“GG8”) at §4.173, says:

These are judicial review proceedings. The Claimant is Dr Tattersall. The decision which is the target for judicial review was made on 26.1.21. I will call it “the Impugned Decision”. The decision-maker was Professor Jane Mamelok, acting as Postgraduate Dean (“PD”) for “HENW”. HENW is Health Education England (“HEE”)’s North West Region (“NWR”). At the substantive hearing, I granted an unopposed application, pursuant to CPR19.4(1), for NHS England to replace HEE as Defendant. That was appropriate because HEE’s functions have now (as of 1.4.23) transferred to NHS England, against whom any Order of this Court would necessarily now need to be made. When in this judgment I say “HEE”, I mean “HEE, now NHS England”. In making the Impugned Decision, Professor Mamelok was dealing with an appeal (“the Appeal”) which Dr Tattersall had commenced on 20.8.15. The Appeal challenged a decision taken on 7.8.15 (“the Appealed Decision”). That decision had been taken by Professor Mamelok’s predecessor as PD, Professor Jacky Hayden. In the Impugned Decision, Professor Mamelok decided as follows: that the Curtailment Provision was applicable to the Appeal; that there had been reasonable endeavours by HEE to progress the Appeal; that the Appeal had not taken place within one year of the decision date (7.8.15); that it was not appropriate to exercise the discretion to grant any further reasonable postponement; that the Appealed Decision was therefore “final”; and that she would not in those circumstances take any further steps such as convening an Appeal Panel and scheduling an appeal hearing.

The central issues and arguments which I have to address fall within three basic heads. These reflect three alternative bases on which Dr Tattersall challenges the Impugned Decision. They concern the lawfulness (see §21 below), applicability (§32 below) and application (§40 below) of the Curtailment Provision. Before turning to each of these, I am going to give my description of some contextual features of the case as I saw them.

HEE is a public body responsible for leading and supervising education, training and workplace development in the UK health sector. That includes accredited postgraduate training (in this judgment, “Training”). It includes implementing Training in accordance with the curricula approved by the General Medical Council (“GMC”) which body regulates doctors (GG8 §2.26). HEE is organised into regions, of which HENW is one, each of which has a PD. Under the Gold Guide, the PD – which includes the PD’s nominee (GG8 §1.8) – discharges a number of responsibilities, including “quality management” of Training programmes (GG8 §2.33) and “decision making” (GG8 §1.2). Suppose I am a postgraduate doctor pursuing a relevant specialism and wishing to become a Consultant. Training is a route by which I can progress towards that goal. That progress will mean securing relevant Training appointments, with Training contracts, as a “Trainee”. It will mean my ‘clocking-up’ the relevant number of years of Training, for example 7 years. The content of the Training will be regulated by the Royal College in my specialism. Once I have completed the relevant number of years’ Training, I can then take an examination, with a view to achieving a Fellowship with the Royal College. If I am successful in achieving that Fellowship, I can then receive entry on the specialist Register held by the GMC. That will mean I have become eligible to be appointed as a Consultant.

During my Training, I need to hold a National Training Number (“NTN”). An NTN is described (GG8 §3.35) as “held for so long as” a Trainee is in speciality Training or is out of programme on statutory grounds or by agreement with the PD. One NTN may be replaced with another, for example if I move from Training in one HEE region to another. If I take ‘time out’ of my Training, there is a question about whether I can then return and continue, keeping the ‘credit’ of the Training which I had previously clocked-up. Suppose I had clocked-up three years of Training before my ‘time out’. A question would be whether I can restart as if I were now in year 4. The answer to that question will depend on the circumstances. It is not difficult to see why. I may have gone ‘cold’. The curriculum may have ‘moved on’. The Royal College will need to be involved in the decision whether I should resume, keeping my clocked-up credit.

During my Training there are ‘regulatory’ aspects to my position. I will be the subject of a cycle of important annual reviews, known as the Annual Review of Competence Progression (“ARCP”). The ARCP involves decision-making processes which can give rise to certain ‘negative outcomes’ for a Trainee. A negative ARCP outcome can be the subject of an appeal under the Gold Guide. During my Training – or if my Training has stopped and I am working in the health sector outside the Training programme – I will remain subject to the GMC’s fitness to practise regime. I will also remain subject to a programme of ‘continuing professional development’ requirements, known as “Revalidation”. Certain declarations required for Revalidation are included in the ARCP (see GG8 §3.47). One of the consequences of regimes such as ARCP, fitness to practise and Revalidation is that a Trainee needs a “designated body” and a “responsible officer”. For a Trainee in the NWR, HENW would be the designated body and the PD for HENW would be the responsible officer. A Trainee who remains within the Training regime in the NWR will generate a volume of important information and materials, including from ACRP and Revalidation, to which HENW would have access.

Dr Tattersall’s specialist area is Obstetrics and Gynaecology (“O&G”). The relevant Royal College for that specialism is the Royal College of Obstetrics and Gynaecology. Dr Tattersall qualified to practise medicine in 2001. He began working in O&G in 2002. In 2005 he was appointed as a Specialist Registrar for a term of 5 years in London, where he had a Research Training Fellowship from 2006 to 2010. In January 2011, Dr Tattersall took up a 4 year appointment as a Clinical Lecturer at the University of Liverpool. That role combined academic Training at the University of Liverpool with clinical Training at the Liverpool Women’s Hospital, a hospital run by Liverpool Women’s Hospital NHS Trust. In conjunction with his Training, Dr Tattersall was issued with an NTN (and, says Mr Morgan KC, a replacement NTN when he moved from London to Liverpool).

Dr Tattersall was on a recognised pathway towards an examination-based Fellowship of the Royal College of O&G and entry into the GMC’s Specialist Register for O&G. If all went to plan, Dr Tattersall would emerge from that pathway as a Consultant in O&G. However, as things stand, all has not gone according to plan. In the event, Dr Tattersall did not participate in clinical Training after 2010, and in any Training after December 2014. The circumstances in which that position arose are controversial. As everyone agrees, they do not call for any finding by this Court in these proceedings. In the event, Dr Tattersall has continued to discharge clinical duties, as a senior clinician within the specialty of O&G, in a variety of locum capacities.

The Appealed Decision (7.8.15) was communicated to Dr Tattersall’s British Medical Association (“BMA”) representative, Ms Joanne Alliston. By the Appealed Decision, Professor Hayden (as PD of HENW) had concluded that Dr Tattersall’s NTN should be withdrawn on the basis of “non-compliance” with the requirements for registering or maintaining his registration with the PD. In the Appealed Decision, Professor Hayden was invoking §6.37c of the Gold Guide 5^th Edition of May 2014 (“GG5”), which provided:

The Gold Guide described a right of appeal as follows (GG5 §7.148), with what I observe is a refreshing use of “their” and “they”:

Dr Tattersall exercised his right of appeal. He did so by a letter of request dated 20.8.15 from Ms Alliston. That letter provided an “outline” of the grounds of appeal, stating that Dr Tattersall reserved the right to further expand upon these in the future, as and when further information became available. These were the grounds of appeal:

In September 2016, more than a year after the decision date of the Appealed Decision, an oral hearing of the Appeal commenced, before an Appeal Panel which had been convened. That hearing was, however, adjourned. This was as a consequence of issues relating to the composition of the Appeal Panel. A point had been raised on behalf of Dr Tattersall about a conflict of interest on the part of a member of the Panel. The point was accepted. By that time, Gold Guide 6^th edition (February 2016) (“GG6”) was in force.

Following the September 2016 adjournment, there was a focus on whether Dr Tattersall’s case – including the Appeal – was governed by the Gold Guide. As has been seen (§11 above), Dr Tattersall’s ground of appeal [1] contested that point and complained about the failure to consider an argument about it. Nearly two years after the September 2016 adjournment, a decision was made on 15.5.18, finding that the Gold Guide was applicable. That decision was challenged by judicial review proceedings in the High Court (reference CO/444/2019). The outcome was a Consent Order made by this Court on 17.5.19 (“the Consent Order”). It recorded that Dr Tattersall (“the Claimant”) withdrew his renewed application for permission for judicial review and his claim for judicial review was dismissed, on the basis of a position described in the Schedule to the Consent Order. The Schedule included this (at §§2-4):

Dr Tattersall’s position was – and is – that he hopes, through the Appeal or otherwise, to be allowed to return to the Training programme and achieve a Certificate of Completion of Training. He wants to retain the years of Training as a credit which he has clocked-up. Dr Tattersall says that, where an NTN is withdrawn and unless that withdrawal is overturned, the Trainee will lose any ability to resume with clocked-up credit. HEE says: (1) even if an NTN is reinstated, a Trainee would need to secure a new Training appointment to get into Training; (2) the Trainee would not necessarily keep the clocked-up credit, and the relevant Royal College would need to be satisfied that this was appropriate; and (3) if a Trainee does not keep clocked-up credit they may be able to progress by relying on their past Training, through an alternative evidence-based pathway to achieving a Fellowship.

In my judgment, it is appropriate – and sufficient – to proceed on the following basis. The holding of an NTN is a matter of importance to a Trainee. A Trainee stands, in principle, to be disadvantaged by the withdrawal of an NTN. A finding of non-compliance with the requirements for registering or maintaining their registration with the PD is a significant adverse finding about a Trainee’s conduct. All of this is reflected in the fact that the Gold Guide provides for a right of appeal. The right of appeal affords the opportunity for a specialist Appeal Panel to consider the merits and justification for the withdrawal and the adverse finding. Dr Tattersall’s concerns – about being disadvantaged by the Appealed Decision withdrawing the NTN and by the finding of non-compliance – are concerns that he was entitled to raise. Dr Tattersall had, and exercised, a right of appeal. By the time of the 5.9.16 adjournment of the Appeal, more than a year had already passed since the Appealed Decision (7.8.15). By the time of the Consent Order (17.5.19), 3 years 9 months had passed since the Appealed Decision. It was in that context that the Consent Order embodied a recognition that the Appeal was to be pursued and determined. The Impugned Decision means Dr Tattersall has lost his opportunity to seek to persuade an Appeal Panel, on the merits, that it should (a) say that the finding of non-compliance in the Appealed Decision was wrong (b) say that the NTN should be reinstated and/or (c) say something else favourable to Dr Tattersall about what has happened or should happen next.

This claim for judicial review challenging the Impugned Decision (26.1.21) was commenced on 21.4.21. Permission for judicial review was granted on 10.11.21. As it was put in Mr Hawkin’s skeleton argument (10.5.23), it is of relevance that Dr Tattersall suffers from long-standing depression and anxiety and that in 2019 he was given a diagnosis of Autistic Spectrum Disorder (“ASD”); and it was during proceedings brought by Dr Tattersall against the NHS Trust and the University that it was accepted that in 2019 he was given that diagnosis of ASD. It is also relevant to record that the substantive hearing of this judicial review claim had been due to be heard on 27.7.22. I adjourned the case on that occasion, because – as was recognised by Mr Hawkin and Mr Morgan KC – a question had arisen as to Dr Tattersall’s capacity to litigate these proceedings. I made directions and a Mental Capacity Assessment (6.5.23) was eventually obtained. That report concluded that the Claimant clearly had mental capacity to litigate. On the basis of that evidence, I was satisfied on that issue. Nobody and no evidence supported any contrary view. I should also record that there had been exchanges with this Court about “reasonable adjustments”. In the event, Dr Tattersall communicated through Mr Hawkin his preference not to attend the hearing, provided that – as I confirmed – his presence was not required by the Court and no adverse inference would be drawn. So far as materials are concerned, I gave such permission at the start of the hearing as was required for all parties to rely on the further evidence and materials which had been filed and served, a course to which nobody objected. At the hearing, a factual question arose (§72 below), which led me to allow Dr Tattersall time to provide an answer. In the event he produced a short witness statement (5.6.22), all of whose contents he asked me to consider, as I have. One of the points he makes is to describe receiving a recent diagnosis (on 24.5.23) of Combined Type ADHD which he believes may underlie many of the difficulties he describes encountering with executive function.

The substance of the Impugned Decision was as follows. Having carefully considered the history of this matter, the decision had been made: (i) that it was not appropriate to grant any further extensions of time for the conduct of the Appeal; (ii) that it was no longer possible to conduct the Appeal in a manner consistent with the aims and objectives of the Gold Guide; (iii) that, in light of all of the circumstances, it was not appropriate to convene an appeal against the Appealed Decision; and (iv) that in consequence the removal of the NTN would stand as final. Dr Tattersall was not precluded from seeking the issue of a NTN in line with any Training programme which he might wish to pursue in due course. But the Appealed Decision stood, with effect from 7.8.15, and the Appeal was at an end.

The Impugned Decision emphasised these as key points. In the period since the Consent Order there had been “ensuing delay”. Dr Tattersall had been invited to supplement and revise his grounds of appeal but did not avail himself of that opportunity. In extensive correspondence, consistent efforts had been adopted by HENW to facilitate the conduct of an appeal hearing, demonstrating a preparedness to accommodate Dr Tattersall and collaborate with him in bringing a resolution to his outstanding appeal. The correspondence issued on behalf of HENW had recommenced within days of the Consent Order. It had consistently confirmed the scope and purpose of the Appeal and the process to be followed. It had attempted to secure Dr Tattersall’s engagement with the process. There had been repeated attempts to secure the input of specialist Occupational Health advisers, through an Occupational Health Assessment. However, as a result of Dr Tattersall’s lack of meaningful engagement and collaboration, attempts to convene an appeal hearing had been thwarted and a further period approaching two years had elapsed, throughout which period Dr Tattersall had been participating in full time clinical practice as a locum. A total period approaching 6 years had elapsed since the Appealed Decision to remove Dr Tattersall’s NTN. In the intervening period, every effort had been made to accommodate Dr Tattersall’s perspectives, preferences and the conditions he had sought to impose. In each instance, HENW had sought to act in a manner which was consistent with the spirit (as well as the letter) of the Gold Guide. The Gold Guide was concerned with those participating in or seeking to undertake postgraduate specialist Training, with default time limits which anticipated that decisions would be reached within a 12-month period, enabling the Trainee to address adverse decisions by appropriate means of remediation, recommitment and collaboration. The Gold Guide also made clear that all Trainee doctors are obliged to adhere with the requirements of GMC’s “Good Medical Practice”, and that an NTN was coterminous with participation in specialty training, with regulatory compliance and the PD discharging the role of responsible officer. It was for the PD to determine the extent or scope of any extensions of time.

The Impugned Decision also identified these “reasons”. The decision was recognised as unwelcome to Dr Tattersall. It had not been taken lightly. Professor Mamelok had consulted with peers, including the external and independent Appeal Panel Chair, Dr Geoff Smith (Regional PD for HEE South West). It had been confirmed that the circumstances of the case and the efforts undertaken by HENW to secure a resolution to the Appeal, were unprecedented. The decision had been reached after careful examination and review of the entire history of the case, including the following: (a) the factors contributing to delays in progressing the Appeal including outstanding issues that had been determined by the Consent Order (17.5.19); (b) the attempts to progress the Appeal subsequently and factors undermining it being heard in the expected time frame; (c) the fact that the Appeal was well out of the time anticipated by the Gold Guide (even treating the 12 months as reset from 17.5.19), and this had implications for testimony of individuals involved due to the passage of time; (d) the fact that 6 years in total had elapsed during which Dr Tattersall had given no indication of any wish to embark upon specialty Training and indeed had resisted attempts by HENW to encourage that; (e) the reality that a period approaching 2 years had elapsed since the Consent Order resolving the applicability of the Gold Guide, despite which Dr Tattersall had not demonstrated any commitment to the pursuit of the Appeal securing its resolution in line with the demands of the Gold Guide; and (f) that in all the circumstances, the conduct of the Appeal would be futile and/or disproportionate.

Under a heading “interests of justice”, the Impugned Decision made these points. Every effort had been made to accommodate Dr Tattersall in a manner consistent with the Gold Guide and the specialty Training regime to which it was directed. By contrast, Dr Tattersall had engaged with HENW in a manner which showed little or no commitment to resolution of any process or resumption in a way which could be considered consistent with the collaboration required of any Trainee. The fact that Dr Tattersall has chosen to prioritise his time and resources on other matters was a choice, which he was entitled to make. It was noted that, throughout the relevant period, Dr Tattersall had remained in clinical practice and was understood to have operated without impediment. Repeated opportunities had been given to Dr Tattersall, which he had declined or failed to take. In these exceptional circumstances, and given his ability to reapply for a NTN in the usual manner, there was no injustice to Dr Tattersall in coming to the Impugned Decision.

This is the first of the three basic heads into which the issues and arguments fall. I accept Mr Hawkin’s submission that, if the Curtailment Provision is unlawful, it would follow that the Impugned Decision is also unlawful. That is because the Impugned Decision has disposed of the Appeal by purported application of the Curtailment Provision. On the face of it, absent the Curtailment Provision, the “outcome” of curtailing the Appeal in this way would have been different. I cannot say what an Appeal Panel would have said or done, had it heard the Appeal.

Mr Hawkin argued on behalf of Dr Tattersall – in essence, as I saw it – as follows. The Curtailment Provision is so unfair – so draconian – as to be unlawful. It is a clear violation of basic standards of procedural fairness. It is an unlawful and unreasonable rule. It is deeply problematic and flawed; fundamentally wrong; and offensive in public law terms. It adopts a position which can never be justified as fair or reasonable, even as a last resort. It takes a guaranteed appeal right. It takes a properly commenced appeal which is on foot and current, brought by an appellant who has expressed no intention to withdraw or abandon it. It then purports to permit the action of peremptorily extinguishing that extant appeal, depriving that appellant of the merits-determination by the specialist Appeal Panel. Appeal rights are important safeguards. Where such a safeguard is provided, the presumption is that the issues will be permitted to be resolved on their merits, through the appeal. That is why rights of appeal are an ‘alternative remedy’ to judicial review: R (Willford) v Financial Services Authority [2013] EWCA Civ 677 at §36. It is never fair or justifiable to take an extant appeal and then decide it has been ‘timed-out’ by reference to the criteria in the Curtailment Provision: an appeal not having taken place within one year of the appealed decision; reasonable endeavours to progress the appeal; and an absence of exceptional circumstances to justify an extension of time. There are always other, and obviously less draconian, ways of dealing with extant appeals where the passage of time and circumstances call for finality. Basic standards of fairness and reasonableness require consideration of the appeal’s substantive merits. The alternatives which achieve promptness and finality, with a merits determination, will always include the following: an Appeal Panel being convened and a hearing listing at short notice; the hearing proceeding in an appellant’s absence; or the determination of the appeal by the Appeal Panel on the papers without a hearing at all. Determination of an appeal “on written submissions” is a feature of the Gold Guide (GG6 §§7.135, 7.139; GG8 §4.174), albeit “if the Trainee agrees”. Even absent such agreement, that course could lawfully be adopted, as a last resort derogation (GG8 §1.11) and less draconian alternative to peremptory dismissal of the appeal.

No authority supports – as lawful, reasonable or fair – a provision whose application will involve an extant appeal failing, without consideration of its merits. Saleem v Secretary of State for the Home Department [2001] 1 WLR 443 identifies the applicable legal standards. The curtailment provision in Saleem was unlawful because, as the then Hale LJ pointed out (at 458F-459F), common law standards of procedural fairness were violated. These were analogous to Article 6 ECHR principles: ensuring that a provision could not impair the essence of a right of appeal, could not constitute an unjustified and disproportionate interference with that right, and needed to strike a fair balance. Article 6 would in any event apply directly in the present case, given that the implications for livelihood and education mean that a civil right or obligation was being determined. Just as in Saleem, so too here, there is a curtailment provision which is unlawful, as well as being unfair, and unreasonable.

There are two further points. First, the structure of the Curtailment Provision in any event makes it contrary to law. The text of GG8 §4.173 (§1 above) refers to the PD’s discretion, to postpone the appeal in exceptional circumstances, but only as an ‘afterthought’ after already hitting the ‘brick wall’ of finality. Only then does GG8 §4.174 refer to an appeal being “dealt with on written submissions”. The discretion to extend time, and the consideration of less severe alternatives, cannot lawfully arise only after the appeal has already been ‘timed-out’. Secondly, the role of the PD, also and in any event, makes the Curtailment Provision contrary to law. The application of the Curtailment Provision – and specifically the discretion to allow a reasonable postponement in exceptional circumstances – is entrusted by GG8 §4.173 to the PD. But the PD is the decision-maker in relation to the withdrawal of an NTN (GG8 §3.99) and that can be the very decision under appeal (GG §4.166). The Curtailment Provision thus makes the PD a ‘judge in their own cause’, empowered to shut out an appeal against their own decision.

Those are Dr Tattersall’s arguments on the unlawfulness of the Curtailment Provision. But I am not able to accept them. In my judgment, accepting the submissions of Mr Morgan KC for HEE, the Curtailment Provision is not unlawful. It is a lawful feature of the Gold Guide. It does not offend public law principles of fairness, reasonableness, or lawfulness (including statutory human rights protection). I will explain why I have arrived at that conclusion.

I think the analysis needs to begin by remembering that the right of appeal, with which the Curtailment Provision is concerned, is a right arising by reason of the Gold Guide itself. Mr Hawkin rightly accepted this. The appeal has no other originating source. This is not a situation where a right of appeal has arisen by virtue of some anterior instrument or other superior source. This is not a right arising from primary or secondary legislation, constitutional value or common law principle. The Gold Guide – including the Curtailment Provision – is not ‘cutting down’ on some freestanding procedural right arising from a superior source. There would be no appeal at all unless conferred by the Gold Guide. So, it is the Gold Guide which confers the right of appeal. And it is the Gold Guide which regulates, shapes and circumscribes that appeal.

Next, it is important to appreciate that the appeal rights for which the Gold Guide makes provision, are rights which arise in a particular context and setting, with particular features. This is a special setting regarding governance, regulation and compliance. As seen in the present case, there is the special context of Training. That context and setting provide the backcloth for the clear recognition of the temporal values of promptness and finality. The Gold Guide expressly provides (GG8 §4.173) that the appeal hearing itself should normally take place within 30 working days of the appeal request, which is itself required within 10 working days of notification of the decision to which the right of appeal applies. There are other contextual features. The structure and content of the Curtailment Provision require – as a precondition to the curtailment of the appeal – that there have been reasonable endeavours (by HEE) to progress the appeal. That same structure and content also allow for a discretion, to allow a reasonable postponement (including a further postponement), in exceptional circumstances. As to that discretion, I cannot accept Mr Hawkin’s submission that the discretion is encountered only after his ‘brick wall’ of finality has been encountered. The finality is subject to the discretion. No other interpretation or application makes sense. So, it would make no difference if the Curtailment Provision had been drafted as follows:

There is, in my judgment, no inherent unfairness, unreasonableness or unlawfulness in the Curtailment Provision, given its nature and in its contextual setting. The Curtailment Provision does not fail to strike a fair balance or impair the essence of the right of appeal. Alongside the points about the special regulatory context and the origin of the right of appeal, three points are critical. The first is that it is a necessary precondition that there must have been “reasonable endeavours to progress the appeal”. Unless it can lawfully be concluded that this precondition has been satisfied, the Curtailment Provision cannot lawfully be applied to an appeal. The second is that there is the ever-present discretion to allow reasonable postponement in exceptional circumstances. In public law, a discretionary power carries with it a duty to consider exercising that discretionary power. So, unless it can lawfully be concluded that there should be no reasonable postponement – or no reasonable further postponement – in exceptional circumstances, the Curtailment Provision cannot lawfully be applied to an appeal. The third is that the assessment of the precondition requiring “reasonable endeavours to progress the appeal”, and the approach to the discretionary power to allow a “reasonable postponement” in “exceptional circumstances”, are decisions of a public authority decision-maker to which enforceable common law standards apply. Describing those familiar common law standards has classically – and for good reason – attracted the shorthand formula ‘lawfulness, reasonableness and fairness’. I am using that same shorthand formula in this judgment. Here, in the analysis, the important point is this. The application of the Curtailment Provision – in the facts and circumstances of an individual case – must be lawful, reasonable and fair.

I think Mr Hawkin was right to identify the Saleem case as an authority which assists the analysis. He did not persuade me that there is here decision-making constituting the Article 6 “determination of a civil right or obligation”. But I agree with him that nothing turns on that in the analysis. In Saleem, there was a right of appeal against an adverse asylum decision. That was a statutory right of appeal arising by virtue of a superior instrument of law, namely s.20 of the Immigration Act 1971. The Lord Chancellor, empowered (by s.22 of the 1971 Act) to make rules for “regulating the exercise of the right of appeal conferred by” the 1971 Act, had made the Asylum Appeals (Procedure) Rules 1996. Rule 35 made provision for circumstances in which an extant and properly commenced appeal could be treated as abandoned, and rejected without determination of its merits. Rule 42 made provision about circumstances in which a notice (including a notice of hearing) was to be “deemed to have been received” by an appellant. The unanimous Court of Appeal, agreeing with Hooper J, concluded that Rule 42 was unlawful in rigidly precluding an extant appeal from being determined on its merits, even if the appellant were demonstrably blameless. The unlawfulness lay in the fact that Rule 42 operated with “this severity”, and “such severity”, which impact was unreasonable and unlawful (as not “regulating” the appeal but removing and destroying it). As expressed by Hale LJ in Article 6 terms, Rule 42 did not strike a fair balance but impaired the essence of the right of appeal.

In my judgment, that cannot be said of the Curtailment Provision. In fact, Saleem best assists because of its sharp contrast with the present case. The Curtailment Provision does not rigidly exclude consideration of the circumstances. It does what Rule 42 unlawfully and unreasonably failed to do: it incorporates a discretion. There are two unmistakeable features of Saleem. The first is that Rules 35 and 42 combined to mean that an extant appeal could be disposed of without a determination on the merits. The second is that the Court of Appeal did not say that disposing of an extant appeal without a determination on the merits was inherently unlawful, unreasonable or unfair. Mr Hawkin’s answer is that the Court of Appeal did not need to consider that point. But it would have been a fundamental and direct, obvious and prior, illegality. Saleem does not support the proposition that any provision which curtails an extant appeal – other than by a determination on the merits – is inherently unlawful, unreasonable or unfair, including as being incompatible with Article 6 standards. I was shown no other authority which supports that proposition.

Nor in my judgment is the Curtailment Provision unlawful on the ground that it makes the PD ‘judge in their own cause’. Some appealable decisions are decisions of the PD. That includes a decision to withdraw an NTN on grounds of non-compliance. The PD convenes the Appeal Panel. The Curtailment Provision gives to the PD the function of addressing whether there have been reasonable endeavours to progress the appeal and whether reasonable postponement is appropriate on grounds of exceptional circumstances. It is not unusual for a decision-maker to retain a function referable to an appeal. To take two examples: magistrates may have to decide whether to state a case; a High Court judge in an extradition case may have to decide whether to certify a question of law of general public importance. The PD’s functions in applying the Curtailment Provision are required to be lawful, reasonable and fair. There is the safeguard of judicial review, as this case illustrates. The PD’s functions arise – as does the right of appeal itself – in a very specific regulatory context, under the Gold Guide. The PD is an office-holder. In the present case, the Appealed Decision was not a decision of Professor Mamelok, but her predecessor Professor Hayden. The Gold Guide makes express provision that PD includes a person “nominated” by the PD to “act” on the PD’s “behalf” (GG8 §1.8). If, on the particular facts of an individual case, there were some decision or act requiring discharge by a nominee, there is provision for such an arrangement to be made.

This is the second basic head into which the issues and arguments fall. As with lawfulness (§21 above), I accept Mr Hawkin’s submission that, if the Curtailment Provision is in law inapplicable, it would follow that the Impugned Decision is unlawful.

On this head, Mr Hawkin argued – in essence, as I saw it – as follows. The Curtailment Provision was not lawfully applicable to the Appeal. That is by reason of orthodox public law legitimate expectation principles (discussed in cases such as Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32 [2012] 1 AC 1 at §30; United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17 [2016] 1 WLR 3383 at §§37-39 and Re Finucane’s Application for Judicial Review [2019] UKSC 7 [2019] 3 All ER 191 at §62). There are two distinct bases on which the legitimate expectation arose. Either of these is sufficient.

The first basis on which a legitimate expectation arose is GG5 (§10 above). That was the edition of the Gold Guide which was in force at the time of the Appealed Decision. GG5 provided at §7.148 that where a Trainee’s NTN was removed by the PD:

The second basis on which a legitimate expectation arose is the action taken in relation to the Appeal in September 2016 (§12 above). On 5.9.16, the Appeal Panel – convened to determine the Appeal on its merits – decided to adjourn for a reconvened hearing, with a differently constituted Panel. At that stage, the period of one year – later described in the Curtailment Provision (GG8, 31.3.20) – had already elapsed since the date of the Appealed Decision (7.8.15). The actions in September 2016 were a clear and unqualified promise (or practice): that the Appeal would be determined on its merits by an Appeal Panel; that the Appeal would not be ‘timed-out’ on the basis of not having been determined within one year of the Appeal Decision; that any extension of time beyond one year was being granted; and that any test for an extension of time beyond one year had already been met. The purported application to the Appeal of the Curtailment Provision, first introduced in GG8, was an unlawful breach of that legitimate expectation.

Those are Dr Tattersall’s arguments on applicability. Again, however, I am not able to accept them. In my judgment, the Curtailment Provision – treated as applicable to the Appeal – involved no breach of any legitimate expectation. I will explain why, accepting the submissions of Mr Morgan KC, I have arrived at that conclusion.

So far as concerns GG5 and legitimate expectation, the starting-point has to be the nature of the Gold Guide with its regular new editions. GG5 itself was clear and explicit about the nature of new Gold Guide editions. GG5 stated that new editions of the Gold Guide would come into force from time to time, taking immediate effect and replacing the previous provisions in a previous edition. GG5 said, on its first page, that: “This edition replaces all previous editions of the Gold Guide with immediate effect”. It also stated expressly that there would be future “up-dating of the Guide”, after being “reviewed annually”. The clear practice – reflected in GG5 itself – was for each new edition of the Gold Guide to replace each previous edition, in its entirety, with immediate effect. There was nothing in GG5 approaching a clear practice or promise, to the effect that the appeal provisions of GG5 would continue to apply to any appeal from any decision made while GG5 was in force. Mr Hawkin was unable to identify any provision within GG5 which said or implied this. In the same way, there was nothing approaching a clear practice or promise that a previous edition continued to take effect in relation to any extant appeal against any appealable decision taken while a previous edition was in force. The successive Gold Guide editions do not operate by reference to ‘savings’ and ‘transitional provisions’ in the regulation of appeals. What was needed – to return to a point which I have been emphasising – was that any decision under any new provision would be made lawfully, reasonably and fairly.

So far as concerns actions in September 2016 and legitimate expectation, there was nothing approaching a clear promise or practice in HEE’s actions at that time, or at any time, to the effect that no new provision of the Gold Guide could impact on the Appeal. The convening of an Appeal Panel and the September 2016 adjournment of the Appeal were actions in the conduct of the Appeal, consistent with the then-applicable provisions of the Gold Guide. So for that matter was the Consent Order (17.5.19) which – as Mr Morgan KC accepts – was certainly action recognising the extant Appeal and referring to a subsequent merits determination by an Appeal Panel (§13 above). But there was no action constituting a clear and unqualified representation, that a merits-determination by a Panel would ensue come what may, irrespective of any changes in the provisions within the Gold Guide and irrespective of any circumstances which subsequently arose.

In all of these respects, Dr Tattersall’s legal entitlement was to lawful, fair and reasonable decision-making under the Gold Guide including in the application of any provision in any new edition of the Gold Guide coming into effect. The introduction and invocation of the Curtailment Provision did not involve any breach of a legitimate expectation. What it did was to introduce a rule and criteria whose application needed to be lawful, reasonable and fair in the context and circumstances of the case. If the Impugned Decision was an application of the Curtailment Provision which was incompatible with these basic public law standards, the claim for judicial review will succeed, for that reason. Otherwise, it must fail.