In an already busy month in Westminster, the former Foreign Office perm sec Sir Olly Robbins made a decision last week that has sparked a debate about the legal protections available to senior public officials.
Rather than bringing an employment claim to challenge his dismissal, the former head of the Diplomatic Service applied for a judicial review, asking the courts to determine whether the former prime minister acted lawfully in removing him from office.
As a challenge against the office of the prime minister, rather than Sir Keir Starmer personally, it’s a case that will rumble on against the government as the Andy Burnham premiership finds its feet.
At its core, judicial review allows the courts to scrutinise whether public bodies have used their powers lawfully. In doing so, they consider whether the public body had the legal authority to make a decision, and whether the correct procedure was followed.
A judicial review also considers if the decision was “irrational” in public law terms – meaning it was so unreasonable that no reasonable public body could have reached it.
Robbins is arguing that the prime minister had ‘no statutory authority’ to dismiss him from his position as head of the Diplomatic Service, that no fair procedure was followed, and that the reasons given for his dismissal were ‘irrational’. These are classic judicial review arguments, focused on how the decision was made, rather than the employment relationship itself.
The focus on the journey behind the decision-making helps explain why judicial review may be more attractive in cases involving senior public officials. Successful claimants can seek a “quashing order”, which asks the court to declare a decision unlawful and set it aside. This option may be particularly significant to Robbins, who has publicly argued that he was made a “scapegoat” and that his dismissal was based on a misunderstanding of the vetting process.
For senior public officials, whose careers are often closely bound to their professional reputation and legacy in public service, repairing any reputational damage may carry greater weight than compensation alone. A successful judicial review provides a public declaration that the decision-making process was unlawful, and therefore a publicity coup for those looking for a path back into public life.
When weighing up the public or employment law routes, length of service is also a relevant factor. Ordinary unfair dismissal claims in the Employment Tribunal usually require two years of continuous service. As Robbins fell short of this, having only been in post for 15 months, it’s not necessarily surprising that judicial review has been considered the more viable option.
Robbins' case is not without precedent. One of the best-known examples was set by Sharon Shoesmith, who, after being removed as director of children's services at Haringey Council following the Baby P tragedy, successfully challenged her dismissal through judicial review.
The Court of Appeal held in 2011 that the dismissal was unlawful because she had been denied procedural fairness and was highly critical of the way she had been treated, going as far as to describe her as a “public sacrifice” who was forced to front up for wider institutional failings.
The Robbins case will also open the door to wider questions about the relationship between ministers and senior civil servants, the governance of the Diplomatic Service, and the limits of executive power. These are matters of public administration and accountability that extend well beyond a typical workplace dispute.
Challenging a dismissal by judicial review is not necessarily an easy route, so won’t be right for every case. Courts are traditionally cautious about interfering in political and executive decision-making, and claimants must establish recognised public law grounds to be successful, such as procedural unfairness, irrationality, or a lack of legal authority.
Whatever the outcome, Robbins’ challenge will be closely watched across Whitehall and in public law. Once made, the decision could well set another important precedent that will help define the extent of ministerial powers, the legal protections available to holders of high public office, and the continuing role of judicial review as a safeguard against potentially unlawful decision-making.
Sarah Whittle is legal director in UK law firm Blake Morgan's litigation and dispute resolution team. Ben Wilson is an associate in the firm's employment team