IS IT fair for the Government to change a policy without consulting those who will be affected by it? This question was put to the High Court recently by the British Association of Physicians of Indian Origin (BAPIO) when the Government changed the rules to make it harder for doctors from abroad to enter Britain for postgraduate training and to obtain posts within the NHS.

BAPIO was joined in bringing an action against the Government by Dr Imran Yousef, who came to the UK from Pakistan to complete postgraduate studies and was caught up in the clampdown on those seeking jobs here. Unfortunately Dr Yousef took his own life before Mr Justice Stanley Burnton could give judgment in the case – the judge said he “did not know whether his death was associated with his difficult situation”, which included incurring significant debts.

The rule changes were announced by the Government on March 7 last year, introduced before Parliament just three days later and approved shortly thereafter. The reason for the changes was said to be the 56 per cent growth in the number of graduates from British medical schools in the previous ten years. The Government says that an increase in numbers of doctors from overseas means that many UK medical graduates are unable to complete their postgraduate training.

BAPIO argued that to act fairly the Government should have consulted the organisation and, had this happened, that it might not have gone ahead with the changes. BAPIO did not want to challenge the content of the rules, but did want to have its views taken into account before they were finalised.

But the judge said that in empowering the Government to make immigration rules, Parliament had not required there to be any formal consultation before changes were made. And because the Government was not in the habit of consulting on such rule changes, no legitimate expectation that it would do could be established. BAPIO could have lobbied MPs before the rule changes were approved: its remedy, said the judge, “was political rather than judicial”. He also accepted that a publicised consultation may have led to an undesirable rush of last-minute applications.

The judge accepted that if he was wrong, and there was a duty to consult before the changes were made, then the Government was in breach of the duty. The judge also declared that, unlawfully, a race equality impact assessment had been carried out only after the rules had come into force rather than before.

The case is a disappointment for those who believe that government should more often take into account the views of those noticeably affected before policies are changed. But it may not be the end of this story: the judge has granted BAPIO permission to appeal.

Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers E-mail: s.cragg@doughtystreet.co.uk

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