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Articles Local Government & Public Law 16th Jun 2022

Article by Jonathan Lewis – The justiciability of legislative commencement decisions (R (British Medical Association) v Secretary of State for Defence)

Lexis Nexis Public Law analysis written by Jonathan Lewis.

The British Medical Association (BMA) judicially reviewed the decision of the Secretary of State for Defence (SSD) not to commence section 192 of theEmployment Rights Act 1996 (ERA 1996). If implemented in full, that section would enable service personnel to bring employment tribunal claims for causes of action including unfair dismissal. Mr Justice Bourne dismissed the claim on all four grounds. He rejected the submission that the SSD had given the issue ‘only provisional and partial consideration’, finding no basis for the submission that any consideration of the question was legally required to be ‘full’ rather than ‘partial’ (at para [64]). Further, the SSD was not bound to consider every time he addressed the issue whether there had been a change of circumstance (at para [65]). The SSD probably had not acted under material factual misapprehension (at para [72]). Bourne J rejected the submission that the SSD’s decision was irrational (at para [87]) and that the SSD had failed to take reasonable steps to acquire the relevant information which was needed in order to make a rational decision (at para [93]).

This article was first published by LexisPSL on 6 June 2022

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