Monthly Archives: October 2013

Alexander Williams: The Scope of Section 6 HRA Revisited

AlexwilliamssmallAs David Mead remarks his recent UKCLG blog post on the scope of the Human Rights Act, there is ‘much more than meets the eye’ to the HRA’s hybrid public authority scheme. It is not just about the meaning of the term ‘functions of a public nature’ under s 6(3)(b). Hugely important though this issue is, its well-documented intractability may have obscured deeper issues relating to the inherent mechanics of the scheme itself. Two such issues are the meaning and scope of the notion of a private act under s 6(5) and the rights-status of hybrid public authorities when performing public as opposed to private functions. They are important not just in their own right but also as potential clues to the proper interpretation of s 6(3)(b). As I have argued elsewhere (at [2011] PL 139), it is difficult to see how judges could ever determine the scope of that provision correctly without first being clear as to how the scheme of liability it triggers actually works, and what it does to the defendants to which it applies.

Using the recent ruling of Arnold J in Olympic Delivery Authority v Persons Unknown [2012] EWCA 1012 (Ch) as a springboard, Mead offers some thoughts on each of the s 6(5) and rights-status issues. In this post I offer my own. My end point is agreement with his basic contention that Arnold J was mistaken to believe that the Olympic Delivery Authority (the ODA) enjoyed Convention rights of its own in that case. But our thinking on each point differs somewhat, as will be seen.

In ODA, in which the ODA successfully sought an injunction to prevent trespassers from unlawfully obstructing agents and contractors from entering land earmarked for Olympic development, Arnold J believed himself bound (at [24]) to balance the protesters’ rights under Arts 10 and 11 ECHR with ODA’s right to respect for property under Art 1 FP. Evidently, his Lordship therefore assumed that the ODA could not have been a ‘core’ public authority under s 6 HRA. These, of course, are obviously public bodies such as government departments, the NHS and the armed forces, all of whose activities are caught by the Convention. To be a rights-holder one must be a ‘victim’ under s 7(1) HRA, which in turn requires one to be a ‘person, non-governmental organisation or group of individuals’ under Art 34 ECHR (see s 7(7)). It is clear beyond doubt from the ruling of the House of Lords in Aston Cantlow PCC v Wallbank [2003] UKHL 37 that core public authorities, being inherently governmental, can never satisfy the victim test. This is rooted in Strasbourg’s idea that Art 34 envisages a binary, institutional distinction between the individual and the state, with the result that governmental organisations are permanently precluded from filing their own Convention claims, even if they happen to be doing so in relation to activities that would straightforwardly be regarded as private (see e.g. Ayuntamiento de Mula v Spain App no 55346/00 (ECtHR, 1 February 2001)). The idea has been criticised (by Howard Davis, at [2005] CLJ 315), but it remains the law.

Mead’s criticism of ODA is not based on the argument, easy enough to make, that the ODA is indeed a core public authority. Core public authorities are ‘selfless’ bodies created and controlled to serve the public interest over their own: see my earlier work at [2011] PL 139, 148-150. They differ fundamentally from ‘selfish’ institutionally non-state bodies, who are constitutionally allowed their own interests and motivations, whether as human beings, charities, or profit-making organisations, and who can therefore do as they wish – as Laws J emphasised in R v Somerset County Council, ex p Fewings [1995] 1 All ER 513, 524 – within the confines of the law. This is evident from what has been said about core public authorities academically (by Dawn Oliver, at [2000] PL 476), and judicially (in Aston Cantlow, which drew from Oliver’s work), and also from the scope of the governmental organisation concept in Strasbourg to which the core public authority concept equates. It is clear that core public authority status would apply to the ODA, which was established under s 3 of the Olympic and Paralympic Games Act 2006 and invested with the power ‘to take any action it thinks necessary or expedient’ in order to prepare, or to make or ensure that arrangements are made for the preparation of, the London Olympics (see s 4). In exercising its functions the ODA must obey any directions given by the Secretary of State (Sch 1, para 18(1)(b)), who appoints its members and chairman following consultation with the Mayor of London (Sch 1, para 1(1)). Despite its formal status under s 3(1) as a body corporate, the ODA is evidently not a constitutionally selfish private organisation. That it must exercise its functions with regard to ‘the desirability of maximising the benefits to be derived after the London Olympics from things done in preparation for them’ (s 4(3)(a)), for instance, is a further indicator of the public-interest purpose for which it was created and is so closely central government-controlled. The ODA’s status as a core public authority is the real reason it lacks Convention rights of its own.

Mead’s criticism of ODA rests on a different argument. Seemingly troubled by the idea that the ODA might absolutely lack Convention rights as a core public authority, he appears to favour the view that it is a hybrid public authority instead: that is, a private body performing a public function under s 6(3)(b). He argues that the flaw in the judgment was Arnold J’s approach to s 6(5), however, which he claims was misconceived or at least inadequately reasoned. Section 6(5) provides that ‘In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.’ The effect, Mead reasons, is to necessitate a clear analysis of the nature of the ODA’s act when filing for an injunction: if private, then the ODA falls to be treated in that capacity like any other private individual, i.e. as enjoying its own Convention rights. Indeed, he says, this would mean that there could be no obligation on it to respect the protesters’ Convention rights either, because it would not be a hybrid public authority at all. But if the act is public, so the argument goes, then the ODA’s public-authority status remains, with the result that it loses its own Convention rights. Mead therefore envisages an all-or-nothing distinction between being a hybrid public authority and enjoying Convention rights oneself: ‘Arnold J must be wrong to assert that the rights of both [claimant and defendant] are in play – it can only be one or the other, surely?’

I begin with the rights-status issue, giving my views on the s 6(5) point below. I have argued before (at [2011] PL 139) that hybrid public authorities do not lose Convention protection when acting in their public capacities. It is possible in a given case for a hybrid both to be attacked under the Convention and to defend itself using its own Convention rights. The issue has never been judicially resolved, as Mead observes, and a handful of commentators – notably Buxton LJ, in YL v Birmingham City Council [2007] EWCA Civ 26, at [75] – have previously assumed that hybrid public authorities do indeed lack Convention protection when engaging in public activity. But under the HRA as presently drafted there is nevertheless a right answer. Whether a person can assert Convention rights under the HRA turns, as seen above, on whether Strasbourg would regard that person as a victim under Art 34 ECHR were a claim to be brought before the ECtHR in respect of the same act. What the issue therefore boils down to is the interpretation of the Strasbourg case-law on the meaning of Art 34. If a hybrid public authority is a governmental organisation under Art 34 and therefore not a victim in Strasbourg’s eyes when behaving publically, then it loses Convention protection under s 7 HRA. But if it is a victim under Art 34, then it follows that it must enjoy its own Convention rights domestically. This is apparent not just from Parliament’s clear intention to tie the standing questions under s 7 and Art 34 together, but also from the potentially very serious discrimination issue that would arise if we denied rights protection against Strasbourg’s wishes to hybrid public authorities acting in their public capacities. In Art 14 ECHR terms, it represents a classic example of denying Convention rights according to a person’s status in the domestic system. It is not a million miles, to borrow from some familiar examples, from denying Convention protection to those with red hair – or to fishing companies without the requisite number of British directors. Parliament could of course defy Strasbourg by legislating expressly for rights-stripping if it wished. But in the absence of any such move, the conclusion is irresistible: hybrid public authorities will enjoy Convention rights in their public capacities under the HRA if this is what would occur in Strasbourg under Art 34. Although I spare readers a lengthy re-rehearsal of my reasons for thinking that this would indeed occur (these can be found at [2011] PL 139, 145-154), it is certainly worth reiterating the point made above, that Strasbourg has constructed a rigid and binary institutional divide between governmental and non-governmental bodies under Art 34. A body is either governmental in nature – constitutionally ‘selfless’ – or it is not. Under no circumstances will its Art 34 status change according to the nature of the activity it performs. Governmental organisations are governmental through and through; private organisations are private through and through, and therefore enjoy Convention protection at all times. So the point I am making on the rights-status issue is this: s 6(5) is irrelevant to the capacity of a hybrid public authority to enforce its own Convention rights. If the ODA were a hybrid public authority, which I have argued anyway is not the case, then it would be entitled to its rights in whichever capacity it acted. Whether it performed public functions or was otherwise engaged in public activity when seeking to enforce those rights is not the issue.

This leads neatly, then, to the s 6(5) question – more specifically, of how the concept of a private act relates to that of a public function under s 6(3)(b). This question is by far the thornier, not helped by the absence of any ministerial comment at all on the concept of a private act as the HRA passed through Parliament. Earlier cases such as Poplar Housing v Donoghue [2001] EWCA Civ 595 tended to ignore the functions-acts distinction altogether. Ruling that a government-created registered social landlord was a hybrid public authority when providing accommodation to a tenant whom the landlord later sought to evict, the Court of Appeal (at [65]) listed a number of factors relevant to its conclusion – but made no effort whatsoever to explain whether these bore on the nature of the landlord’s function under s 6(3)(b) or its act under s 6(5). Later cases saw something of a judicial awakening in this respect, with a growing appreciation that the hybrid public authority question actually involves a two-stage test of both the function and the act (see Lord Hobhouse in Aston Cantlow and Lords Scott and Neuberger in YL v Birmingham City Council [2007] UKHL 27), but this only brought the perplexing conceptual question of how ‘functions’ and ‘acts’ differ to the fore. The Court of Appeal’s ruling in R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587, which concerned the status under s 6 of a registered social landlord that in contrast to Poplar had not been created by government, is an interesting case in point. It is a glorious illustration of how easy it is in this context to become engulfed by a trap with a black hole-like capacity to swallow up virtually all trace of rationality and common sense. The trap’s unsuspecting victim was Elias LJ, who seized on the functions-acts distinction and reasoned that s 6(5), not s 6(3)(b), is effectively the operative provision when it comes to determining whether a particular hybrid public authority is bound in a given instance to respect Convention rights (at [28]). Since s 6(5) has the last word on the body’s liability, and since s 6(3)(b) says nothing of which of a hybrid’s functions must be public, his Lordship took the view that Parliament really only intended to cast s 6(3)(b) in a cameo role: as long as one of a body’s functions is public, then all that matters is the nature of the act complained of under s 6(5). If this act is public, then Convention challenge against the body can lie, regardless of whether the function pursuant to which the act is performed is public or private in nature. What we have under this approach, then, is an apparent broadening of s 6(3)(b): a hybrid body with a single public function on its books could theoretically perform a private function towards the complainant but nevertheless face Convention liability because under the all-important s 6(5) it performed a public act. The effort to open up s 6(3)(b) in this way, if that was indeed the intention, is laudable enough. I am not the only author to have argued (at [2008] EHRLR 524) that the courts’ treatment of s 6(3)(b) is probably too narrow, after all. The approach has moreover been suggested before (by Jonny Landau, at [2007] PL 630). But with the greatest respect to those who are tempted by it, the approach is seriously flawed. The idea that a public act could be performed pursuant to a private function is highly dubious in any event, as Lord Collins MR observed (at [101]). Elias LJ admitted himself (at [28]) that ‘Such situations are likely to be extremely rare.’ One might argue that with a clearer impression in mind of the functions-acts distinction the approach does become tenable, but this is where Weaver becomes even more puzzling. Joined by Lord Collins (at [102]), Elias LJ took the view (at [76]) that the nature of the act under s 6(5) strongly depends upon that of the function pursuant to which it is performed anyway. Acts that are ‘so bound up with’ a public function, he believed, would be public acts. So having showered s 6(5) in roses as the real star of the s 6 show, and having admonished (at [53]) the Divisional Court for failing at first instance to spot its Hollywood potential, his Lordship was in any event forced down the very same road trodden by judges in previous cases – of having to determine the nature of the function in question, around which everything else hinges. Having concluded that the function of allocating and managing housing stock was public, Elias LJ then ruled that the act of evicting the tenant was public as well. Even if the approach is theoretically viable, therefore, it gets the courts nowhere in practice. There is no escaping the need to determine the nature of the particular function performed towards the claimant in the case at hand. Indeed, it was disagreement over the nature of the function that split the court two to one, with Rix LJ dissenting.

The foregoing, I think, exposes three things about the meaning of s 6(5). First, it attests to the sheer difficulty of attempting to pin down the abstract distinction between functions and acts. The only real judicial guidance to have been given on the functions-acts distinction is by Lord Neuberger in YL (at [130]), that ‘functions’ are less specific than ‘acts’ and that various acts may be done in the performance of a particular function, but this is probably as precise, realistically, as it could get. Second, it emphasises that s 6(3)(b) retains the lead role – even if, as I mentioned at the start of this post, it is not the only issue worth worrying about in the hybrid public authority context. This follows not just from the difficulties seen in Weaver of trying to depart from this idea, but also from the very idea of a test that assigns public status to a body according to the function that it performs. A functional categorisation like this is alien to the institutionally-focussed governmental organisation jurisprudence in Strasbourg, as I argued above, so there will be no useful steer on the acts-functions distinction from here. The same is true of the meaning of a public function for the purposes of amenability to judicial review, which constitutes the only domestic body of case-law to provide any potential guidance to the courts on which functions are public and therefore attract legal duties, like Convention obligations, that apply primarily to the state. This is a tricky area in its own right and its link to s 6(3)(b) is equally unclear. I have my own views on both issues, but here is not the place to detail them. The point is that the amenability test itself may be functionally focussed, but there is no similar functions-acts distinction here either, so the courts are unassisted by this body of law as well. Clearly s 6(5) is designed to cut down the scope of hybrid public authority liability by reference to the nature of the particular act complained of, but quite how Parliament intended this to happen is manifestly unclear. All of this militates against reading s 6 in a way that renders s 6(5) the protagonist. There is no substitute for a more precise definition of a public function, difficult though it is to define, which should be able to do the vast majority of the work of determining when a private organisation should be a hybrid liable to Convention challenge and when it should not. Third, and finally, I think the foregoing suggests that in terms of the meaning of a private act under s 6(5), Elias LJ and Lord Collins were probably correct. Although Elias LJ’s specific idea that a public act could flow from a private function is difficult to swallow, the basic idea that an act should ordinarily take the same nature as its parent function is sensible. It strikes a fair balance between giving s 6(5) some sort of role by recognising a basic functions-acts distinction, on the one hand, and bogging the courts down in an artificial, complex and technical assessment of the precise distinction between public functions and public acts, on the other. On this approach, s 6(5) would only come into play if the defendant hybrid could cast real doubt over the idea that the act complained of did in fact result from – was ‘so bound up with’ – the particular public function in question. This might be because the act was more naturally seen as resulting from a private function, or perhaps because in reality it was simply a one-off act with no parent function at all. Not all acts, of course, will have parent functions: what is the function pursuant to which a fight in the street takes place, for example? To-double lock this more minor role for s 6(5), too, the courts would obviously have to treat defendants’ attempts to make use of that provision cautiously. It should not be open to a hybrid public authority care home, for instance, to wriggle too easily out of Convention liability by claiming that the abuse by nursing staff of residents fell outside of the public function of providing care and accommodation and was therefore a private act under s 6(5). The need to avoid simply emptying out the content of s 6(3)(b) is an important reason to ensure that it plays a proper role relative to that played by s 6(5).

Dr Alexander Williams is a Lecturer in Law and Co-Director of the Human Rights Centre at the University of Durham.

Suggested citation: A. Williams, ‘The Scope of Section 6 HRA Revisited’  UK Const. L. Blog (28th October 2013) (available at

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Varda Bondy and Maurice Sunkin: How Many JRs are too many? An evidence based response to ‘Judicial Review: Proposals for Further Reform’

Triggered by the government’s consultation paper Judicial Review Proposals for Reforms published in December 2012, much has been written about the volume of judicial review challenges in the Administrative Court.  As is well known, the government has largely justified its programme of reforms to judicial review in terms of the need to restrict access to JR in order to respond to the massive year on year growth in the use of judicial review, and to cut down abuse of the system thereby saving public funds and reducing delays caused by litigation.

We, and many others, have shown the government’s fears to be exaggerated either because the evidence relied upon is inadequate or because it has been misinterpreted, or perhaps a combination of both. We provided our evidence and analysis in an article published on this blog in January 2013. That paper, and the research upon which it is based, have been cited extensively by organisations and various stakeholders in their responses to the first consultation. It is also acknowledged by the government who in the current consultation note that: ‘Those [respondents] who disagreed [with certain of the proposals] […] pointed to the research undertaken by Bondy and Sunkin, which suggested that the Government was over-estimating the failure rate for applications for permission. …’ (para 69).

One of the puzzles of the reform saga is that the government appears to know that the figures do not justify its concerns in relation to growth: indeed, in the current consultation Judicial Review: Proposals for further reforms  which ends on 1 November 2013,  the government  cite official statistics which show that since 2007 the volume of non-immigration/asylum JRs issued has remained fairly stable at just over 2,000 per annum mark. (para. 10) Yet having given these figures the government repeat the growth mantra, saying that:

‘…the use of JR expanded massively in recent years and it is open to abuse’ (Foreword p.3)

‘…there has been significant growth in the use of judicial review, and …this is sometimes used as a delaying tactic in cases which have little prospect of success’ (para 5 p.5).

And even:  ‘As the data illustrates, there is a large and growing number of judicial review applications’.

It is as if growth in the use of judicial review is a mantra which cannot be dispensed with.

Here we do not intend to repeat what we have already said. Rather in this paper we shall unpack other aspects relevant to assertions of unchecked growth and question the basis for the reforms proposed in the current consultation, in particular those relating to standing and Protective Costs Orders.  Before turning to these we look at what our research tells us about the parties in JRs and the nature of challenges. The analysis presented here is based on data collected in the course of an empirical research study conducted jointly by the Public Law Project and the University of Essex, funded by the Nuffield Foundation on the effects and value of judicial review. The full project report is to be published.

Our database contains extensive details on 502 JR final hearing decisions heard in a 20 month period between July 2010 and February 2012. All the cases are civil JRs, including immigration/asylum cases.  In addition, we received completed questionnaires from claimant solicitors in respect of 198 cases, from defendant solicitors in respect of 53 cases, and we interviewed solicitors and barristers in relation to 56 cases.

Who are the claimants in JRs?

In our sample (which it is to be stressed covers cases at final hearing, not cases issued), approximately three quarters (77 per cent, 388 cases) were brought by individuals. The next largest group of claimants consists of corporations/legal persons, who with 76 cases represent 15 per cent of the sample. A variety of interest groups and charities, were the claimants in 16 cases, comprising three per cent of the sample. This category is specifically targeted in the current consultation (see para 78 of the consultation and our breakdown below).  The remaining claimants were:  12 local authorities, four other public authorities bringing one case each, (NHS trust, a school, a chief constable, and a commissioner of police), and one case brought by the SSHD (on whether sensitive security service information can be considered by the coroner in closed session)

Who are the defendants in JRs?

Unsurprisingly over half the cases in our sample of 502, (57 per cent, 284 cases) were against central government. As we will see below these cases were spread (unevenly) among 26 government departments.

The next largest group of defendants, again unsurprisingly, consisted of  local authorities, who were the defendants in 117 cases. Only 20 local authorities experienced more than one JR final hearing over the 20 month period covered by our sample.

The remaining challenges involved a wide range of bodies, including adjudicatory bodies, prisons, central government agencies, police, health authorities,  regulators, professional bodies , Welsh Ministers and schools.

A breakdown of the JR challenges against the Government:

As we’ve seen above, in the 20 month period of our research, of 502 JRs, 284 hearings were challenges brought against central government departments. Of these, 137 involved immigration and asylum. We can put these to one side bearing in mind that immigration cases are being transferred to the tribunal system and those transferred will be untouched by the current reforms.  In passing we may note that by the end of 2014 the number of JRs in the Administrative Court will be substantially reduced – the number of JRs involving the SSHD in that court are likely to be halved.

Categories of cases against central government as a whole:

The remaining 147 central government challenges involved 28 different case categories, such as adjudication, cemeteries, customs/excise,  elections, environment, inquests , mental health, police and tax, to name but a few.

Breakdown of challenges by government department:

The most challenged departments (comprising 53 per cent of all challenges involving central government) were the SSHD (40) and the SSJ (38).

The remaining 69 JR hearings over the 20 months involved another 24 government departments, most of which had no more than one or two JRs during the sample period.

In other words, during our sample period central government as a whole had to respond on average to 7.3 (non- immigration/asylum) JRs per month. This number was spread across 26 government departments. The SSHD and the SSJ, attracted the largest number of challenges, and each had an average of two final hearings per month. Another 24 government departments shared the burden of the remaining 69 JRs, an average of 0.14 JR final hearings a month.

Bearing in mind the concerns raised by government in relation to the damaging effects of judicial review, these numbers are surprisingly low.

The proposal to restrict the scope of the standing requirements

The Government proposes to ‘to restrict standing so as to prevent claimants without a direct or tangible interest from bringing judicial review proceedings’ (para 81). The proposal does not extend to challenges raising environmental issues which are governed by EU law and the Aarhus Convention (para 81). A twofold rationale is given. The first is to prevent abuse of the process by interest groups who exploit the broad standing rules: ‘… individuals or groups without a direct and tangible interest in the subject matter to which the claim relates, sometimes [seek to use judicial review] for reasons only of publicity or to cause delay.‘ (para 67) The second is to prevent courts dealing with matters ‘which are the proper preserve of Parliament and the elected Government’ (paras. 79-80).

This paper is intended to contribute to discussions by providing evidence drawn from our current research which indicates that broad reform of standing is a disproportionate response given the current ability of the judges to control the caseload and the small number of cases which appear to fall within the category about which the government is concerned.

The proposed restrictions on standing are not justified

The requirement that claimants for judicial review must have a sufficient interest in the matter has been central to the judicial review process since the modern judicial review procedure was introduced in the 1970s. (The Senior Courts Act 1981 section 31(3))  It was introduced following a recommendation of the Law Commission that the older ‘person aggrieved’ test be replaced because the courts had been interpreting that test too narrowly. (Law Comm. Cmnd. 6407 (1976), para 48; Law Comm. Working Paper (no 40) (1971) pp 95-101). The Law Commission strongly felt that a broader and more flexible approach to standing was needed. The Law Commission subsequently recommended that those adversely affected by a decision ‘should normally be given standing as a matter of course’ and that the court should have ‘a broad discretion to allow ‘public interest and group challenges. (Law Comm No 226, Para 5.22.)  The current approach to standing reflects this approach.

The basic purpose of the broad and flexible approach is, in the words of Lord Diplock, to vindicate the rule of law. (R v IRC, ex parte National Federation of Self Employed and Small Businesses Ltd [1982] AC 617, 644E) By opening the doors to cases in which it is shown that government may have abused or exceeded their power the courts can maximise their ability to ensure that public bodies act in accordance with the law. A broad test of standing furthers the rule of law and as such the test can only be narrowed if a compelling justification exists for doing so. No such justification is established in the consultation paper.

The courts are concerned to prevent abuse of the judicial review process and the permission stage already enables the filtering of frivolous claims by ‘meddlers and busybodies’ with no sufficient interest.  An important aspect of the broad approach is that it enables the judge to concentrate on the substance of the matter and the public interest in having it determined, rather than having to spend time and resource on more technical procedural issues. In the case of Evans cited in the consultation document (para 75), for example, the court expressly noted that the claim had been brought ‘in the public interest’ and raised ‘issues of real substance’.

The burden on the courts and on taxpayers is reduced because a broad test of standing may enable groups and representatives to bring claims and eliminate multiple individual challenges. The quality of argument is maximised because groups and public interest litigants are often best placed to mount well informed challenges and are often the most able and focused claimants.

The government posits a number of possible alternatives to the sufficiency of interest test, each intended to ensure that claimants have a direct and tangible link to the matter being challenged.  In the area of public law, a direct and tangible link cannot be defined in terms of legal rights. An attempt to do so would be fundamentally incompatible with our system of public law, which as Lord Justice Sedley has famously observed, is at base about preventing and redressing wrongs rather than protecting rights. (R v Somerset County Council, ex p Dixon [1998] Env LR 111 at 117-121)

Moreover, an attempt to define what is a direct and tangible link to a decision being challenged without using the language of rights or the more flexible and well understood ‘sufficient interest’ test, is to invite a new generation of satellite litigation over what does, or does not, constitute a direct and tangible interest. It would set JR back to the years before the reforms of the 1970s, when public bodies and the courts were struggling to cope with a system bogged down by sterile technical jurisdictional distinctions.

To take just one example from our sample of cases: is an interest in having access to a free library a direct or tangible interest?  Would the answer differ depending on whether the claimant was a regular user of the service or whether the claimant was bringing the claim on behalf of readers generally?  (Green Rowe and Hird Gloucestershire CC & Somerset CC  [2011] EWHC 2687 (Admin))

The statistical evidence does not justify the reforms

In justifying its proposals the government draws on the Administrative Court records for cases lodged between 2007 and 2011, which show that ‘around 50 judicial reviews per year have been identified that appear to have been lodged by NGOs, charities, pressure groups and faith organisations, i.e. by claimants who may not have had a direct interest in the matter at hand.’ (para 78). Significantly, footnote 38 says that the figures are: ‘Based on a manual analysis of case level information. Due to uncertainties in recording and interpretation this analysis is largely illustrative.’ This is an important caveat given that it can be difficult to identify the nature of the claimant’s interest in the matter from court records alone, which in our experience rarely if ever specifically record this information.

Our evidence

We tried to identify cases within our sample which are most likely to fall within the group which concerns the government, namely cases brought by individuals or groups which have no apparent direct tangible interest in the matter.

First, we looked at cases brought by NGOs and interest groups. When we excluded environmental challenges (which are not within the government’s proposed reform) and the EHRC which has statutory power to bring proceedings, we were only able to identify four cases in which it might be said the claimant had no apparent direct and tangible interest. These were as follows:

Children’s Rights Alliance for England v SSJ ([2012] EWHC 8 (Admin)) in which the claimant challenged a decision of the SSJ to refuse to disclose the names of children subjected to unlawful restraint techniques at centres run by the interested parties. This was an access to justice issue intended to enable children to make their own claims.

British Pregnancy Advisory Service v SSH ([2011] EWHC 235 (Admin) which concerned the interpretation of provisions in the Abortion Act 1967.

Child Poverty Action Group v  SSDWP ([2011] EWHC 2616 (Admin)) which was a challenge to reforms to housing benefit scheme.

Medical Justice v SSHD ([2010] EWHC 1925 (Admin)), which was a challenge to the legality of the policy giving less than 72 hours’ notice of deportation.

Only in the Children’s Rights Alliance for England case was standing considered to be an issue and here the discussion concerned the ‘victim’ test in section 7 of the Human Rights Act 1998 rather than the sufficiency of interest test. While it was decided that the organisation was not a victim Foskett J commented that:

Given the serious nature of the issues raised concerning young and vulnerable individuals, it would seem strange that a reputable charity such as the Claimant should not be entitled to come to court and raise the kind of issues raised’ (para 213).

Protective Costs Orders (PCOs)

The government‘s rationale for the need to curtail the grant of PCOs follows the same pattern as that proffered in relation to standing: judges now adopt too liberal an approach, (par 157), which  ‘has tipped the balance too far and now allows PCOs to be used when the claimant is bringing a judicial review for his or her own benefit.‘ (para 158), as well as facilitating  ‘the use of judicial review as a campaign tool with challenges brought by groups which do not have a direct or tangible interest in the claim’ (para 159)

Having looked through all the judgments in our sample and having asked solicitors to tell us in the questionnaires whether a PCO was granted in the case, we came across only seven cases in which a PCO was granted over this 20 month period, namely:

-        Child Poverty Action Group v SSDWP [2011] EWHC 2616 (Admin); Challenge to reforms to Housing Benefit scheme and calculations/limits to housing benefit.

-        ClientEarth v SSEFRA [2011] EWHC 3623 (Admin); Breach of EU environmental law.

-        Garner v Elmbridge [2011] EWHC 86 (Admin); Protection of palace from unsightly development out of keeping with setting.

-        Griffin v LB Newham [2011] EWHC 53 (Admin); Challenge to expansion of London City airport.

-        Medical Justice v SSHD  [2010] EWHC 1925 (Admin) ; Legality of policy of giving less than 72 hours’ notice of deportation.

-        Warley v Wealdon District Council [2011] EWHC 2083 (Admin); Challenge to planning permission to allow floodlights.

-        Public Interest Lawyers v LSC [2010] EWHC 3259 (Admin); an application for a PCO  in relation to the award of contracts to provide publicly funded legal services for public law work and mental health law.

Of these seven cases, four (Griffin, Warley, Garner and ClientEarth) were environmental challenges, which are not affected by the proposed reforms (para 156). This leaves only three PCOs out of 502 cases over a 20 months period.


In our view, the current evidence does not justify the government’s concerns regarding the adverse impacts of judicial review

In relation to standing, the following observations may be made. First, in our 20 month period there are very few cases which clearly fall within the category which appears to most concern the government, namely cases brought by groups or individuals in which the claimant clearly has no direct and tangible interest and which may be loosely described as ‘political’ in character. Secondly, this low number may be because other claims have been filtered out at the permission stage. Thirdly, there were few, if any, instances in which the sufficiency of interest (as opposed to the ‘victim’ requirement) was a live issue at the hearing stage – in other words the defendant public bodies appeared willing to accept the claimants’ standing. Fourthly, in many of the cases the court expressly acknowledged the public importance of having the matter determined.

The findings confirm our view that it is not necessary to introduce a new and narrower test of standing. The current procedures are well suited to eliminating abuse. A narrower test of standing will restrict the court’s ability to deal with issues of public importance and undermine the rule of law. A narrower test may also give rise to difficult and time consuming definitional problems for litigants (both claimants and defendants) over what constitutes a direct and tangible interest. If this occurs it will be a significant retrograde step in our law that is likely to increase costs and delays and undermine the flexibility of the judicial review system. No case has been made which justifies restricting the current approach to standing. Our conclusions are similar in relation to the proposed reforms in respect of Protective Costs Orders.

Varda Bondy is Director of Research, Public Law Project

Maurice Sunkin is Professor of Public Law and Socio Legal Studies, University of Essex

Suggested citation: V. Bondy and M. Sunkin, ‘How Many JRs are too many? An evidence based response to ‘Judicial Review: Proposals for Further Reform’’ UK Const. L. Blog (26th October 2013) (available at

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Filed under Judicial review

Ruvi Ziegler: The missing right to vote: The UK Supreme Court’s judgment in Chester and McGeoch

Magd tower cropped[2]On 16 October 2013, a seven-judge panel of the UK Supreme Court (UKSC) unanimously rejected two challenges (R (Chester) v Secretary of State for Justice  and McGeoch v The Lord President of the Council & Anor  and the judgment summary) brought by prisoners serving terms of life imprisonment against their disenfranchisement in UK national elections pursuant to section 3(1) of the Representation of the People Act 1983 (RPA) and in EU Parliamentary elections and UK local elections pursuant to section 8(2) of the European Parliamentary Elections Act 2002.

The UKSC rejected the Attorney General’s submission that the principles proclaimed by the Grand Chamber of the European Court of Human Rights (ECtHR) in its 2005 Hirst (No 2) and Scoppola (no. 3) judgments should not be followed. However, the UKSC declined to issue a declaration of incompatibility under section 4 of the Human Rights Act (HRA); such a declaration has been issued in 2007 by the Scottish registration appeal court in Smith v Scott.  Furthermore, the court concluded that EU law does not enunciate an individual right to vote paralleling the stipulation in Article 3 of Protocol I (AP1-3) of the European Convention on Human Rights (ECHR), and declined to make a referral to the European Court of Justice. Rather ironically, the present legal situation in the UK is that pursuant to section 1 of the Representation of the People Act 1981, a prisoner who is serving less than 12 months is eligible to stand in elections as an MP, but not to vote for herself in such elections.

Prime Minister David Cameron, having previously opined that the notion of prisoner voting makes him ‘physically ill’, tweeted that the ruling is a ‘great victory for common sense’. His general observation, albeit for rather different reasons, was shared by Adam Wagner. In the critique that follows, I argue that a more suitable description for this judgment may be judicial realpolitik in a politically toxic zeitgeist with potentially harmful long-term implications for the legal protection of the right to vote in the UK.

Question-framing and point(s) of departure

The main judgment, written by Lord Mance, considers whether the UKSC ought to depart from the ECtHR judgments’ reasoning. The ECtHR’s consistent jurisprudence in cases involving voting eligibility considers at the outset the right to vote in a modern democracy, the extent to which it is infringed in the relevant circumstances, and the justification(s) for such infringement(s). By contrast, Lord Mance’s analysis focuses on whether prisoner disenfranchisement is a fundamental principle of UK law: it concludes that ‘it is difficult to see prisoner disenfranchisement as fundamental to a stable democracy and legal system such as the United Kingdom enjoys’; consequently, following the Horncastle ratio, Lord Mance holds that the Strasbourg jurisprudence should be followed. Scant reference is made to the justifications for disenfranchisement (compare Lady Hale [93]); the rationales for protecting the right to vote are hardly detectable (compare Lord Clarke [107]).    

The key to understanding the rather casual approach to the right to vote may lie in Lord Sumption’s account of the history of suffrage [126]. He describes prisoner disenfranchisement as ‘mainly the incidental consequence of other rules of law’, and dismisses the claim that it was part of a ‘civil death’ philosophy. By describing the happenstance in which prisoner disenfranchisement came about, Lord Sumption affirms the perception that disenfranchisement has not come about following principled discussion in which the justifications for disenfranchisement were fully threshed out. Lord Sumption submits that [128] ‘imprisonment is more than a mere deprivation of liberty. It is a temporary reclusion of the prisoner from society, which carries with it the loss of the right to participate in society’s public, collective processes’. This argument offers an analytically distinct basis for disenfranchisement than the bases proposed by the UK in its submissions in Hirst (no. 2). Clear legislative aims are important not just because they convey concern and respect for individual members of society whose rights are infringed: they are crucial also because, in their absence, line-drawing turns conspicuously arbitrary.

Consequently, it is unclear from the main judgment whether, absent clear Strasbourg jurisprudence, the UKSC would have held the current blanket ban to be incompatible with AP1-3. It should be recalled that John Hirst was denied permission to appeal against the High Court judgment, leading to his successful ECtHR litigation. In his separate opinion, Lord Sumption declares that he would not have found the RPA to be incompatible with AP1-3. Conversely, Lord Clarke would have likely adopted Strasbourg-like reasoning: in [110], he notes that ‘there seems to me to be much to be said for the Strasbourg Court’s approach to a blanket ban, at any rate absent detailed consideration of the pros and cons of such a ban’. Lady Hale would have possibly joined him, expressing in [98] ‘some sympathy…for the view of the Strasbourg court that our present law is arbitrary and indiscriminate’, and noting in [96] that there is ‘an element of arbitrariness in selecting the custody threshold as a unique indicator of offending so serious as to justify exclusion from the democratic process’.

More worrying still is the conceptual indeterminacy surrounding the basis for an individual right to vote and restrictions on its exercise that may follow were the UK to withdraw from the ECHR (or indeed repeal the HRA). Lord Mance posits that [59] ‘under EU law Eligibility to vote in Member States is basically a matter for national legislatures’. Now, the fundamental importance of the right to vote in the UK Constitutional order should be recognised notwithstanding its membership of the EU (or the ECHR). It is at least arguable that EU treaties assume that member states recognise their own citizens’ right to vote, and so the principles of non-discrimination are hardly meant to serve levelling down approaches.

Institutional justiciability and public opinion

The justices clearly diverge as to whether the judiciary should consider challenges to legislation determining voting eligibility. In the main judgment, Lord Mance cites (approvingly) the Attorney General’s submission that the court should respect [32] ‘the choice made by the institution competent to make such choices in a democracy’. Lord Sumption posits that this is a [137] ‘classic matter for political and legislative judgment’. In contradistinction, Lady Hale notes that [88] ‘in any modern democracy, the views of the public and Parliamentarians cannot be the end of the story’ and that ‘if there is a Constitution, or a Bill of Rights, or even a Human Rights Act, which guarantees equal treatment in the enjoyment of its fundamental rights, including the right to vote, it would be the task of the courts, as guardians of those rights, to declare the unjustified exclusion unconstitutional’ (my emphasis).

Nonetheless, Lady Hale begins her opinion [86] by citing YouGov polls disapproving of prisoner voting, and suggests that ‘[o]f course the exclusion of prisoners from voting is of a different order from the exclusion of women, African-Caribbeans or homosexuals’. Now, it is not usual practice for courts in this country to cite opinion polls, not least in cases concerning fundamental rights: one can assume that the outcomes of some Article 8 cases, for instance, are not always particularly popular. The choice to cite opinion polls is thus rather surprising. Moreover, dismissing any comparison between other electoral exclusions and the disenfranchisement of prisoners seems too quick: for instance, the Prison Reform Trust in its submission to the joint Select Committee notes that an estimated 11% of the prison population is black even though blacks make up only approximately 2% of the UK population; it is at least arguable that, even if the ground for exclusion is not invidious, its consequence is a perpetuation of the marginalisation of black and minority groups from the political process (across the pond, the political ramifications in respect of African-American are far greater, and even the invidiousness of disenfranchising legislation can hardly be dismissed).

Proper acknowledgment of the (prima facie) right to vote of serving prisoners  

Lord Sumption contends [114] that ‘[f]rom a prisoner’s point of view the loss of the right to vote is likely to be a very minor deprivation by comparison with the loss of liberty’ and [115] ‘decline[s] to regard it as any more significant than the fact that it may coincide with a special anniversary, a long anticipated holiday or the only period of fine weather all summer.’ However, notwithstanding the contentious substance of this claim, consistent Strasbourg and UK jurisprudence (explored in the case for letting prisoners vote) has held that the legal question is not whether the infringement or denial of a prisoner’s right to e.g. freedom of expression is a greater deprivation than denial of liberty but, rather, whether it is an inevitable consequence of imprisonment: if it is not, then one needs to consider the justifications for such infringement on its merits, not in comparison with other infringements.

Lady Hale posits that [101] ‘[t]he Electoral Registration Officer for Wakefield refused his [Mr Chester’s] application for inclusion on the electoral roll. But in my view that could not have been incompatible with his Convention rights, because (at least following Scoppola v Italy) the Convention does not give him the right to vote.’ However, consistent Strasbourg jurisprudence, which Lady Hale otherwise accepts, rightly notes that qua adult citizens, prisoners have a prima facie right to vote; the question to be determined is whether legislative arrangements justifiably infringe or unjustifiably violate that right. Hence, the Convention (AP1-3, more accurately) does give Mr Chester the right to vote, though (following Scoppola (no. 3)) a contracting state may legislate to disenfranchise prisoners serving life sentences.

Declaration of incompatibility in abstracto in light of Scoppola (no. 3)

The question whether declarations of incompatibility should be issued in abstracto has wider implications beyond the present case. Over at Head of Legal, Lady Hale’s ‘attack on the sort of abstract rulings these appellants, both of whom are serving life for murder, were asking for’ was described as ‘trenchant’, although she notes that [102] ‘[t]here may be occasions when that [a declaration of incompatibility in abstracto] would be appropriate…[though] the court should be extremely slow’ to do so.

Lord Sumption critiques the outcome of the Scoppola (no. 3) judgment, noting that [135] ‘wherever the threshold for imprisonment is placed, it seems to have been their [the ECtHR] view that there must always be some offences which are serious enough to warrant imprisonment but not serious enough to warrant disenfranchisement. Yet the basis of this view is nowhere articulated.’ With respect, this observation is accurate. Elsewhere, I have lamented Scoppola (no. 3)’s step backwards from the First Section Chamber’s reasoning in Frodl which in turn logically followed from Hirst (no. 2). As Judge Thór Björgvinsson’s dissent in Scoppola (no. 3) (cited by Lord Mance in [24]) stipulated, the judgment ‘offer[ed] a very narrow interpretation of the Hirst judgment’ which stripped it of ‘all its bite’. In particular, Björgvinsson argued, the Grand Chamber had overlooked significant elements of the reasoning in Hirst (no. 2), notably the absence of any direct link between the facts of the individual case and the ban on voting, the bluntness of the Italian legislation, and the absence of evidence that either the legislature or the courts had weighed the proportionality of the ban.

Declining to issue a declaration of incompatibility, Lord Mance notes that [40] ‘it can…now be said with considerable confidence that the ban on Chester’s voting is one which the United Kingdom Parliament can, consistently with the Convention right, and would maintain, whatever amendments it may be obliged to make or may make to allow any prisoners detained for different reasons or periods to vote.’ Indeed, legislation disenfranchising all life prisoners without individual consideration appears to be compatible with Scoppola (no. 3), whereas such an unequivocal conclusion could not have been drawn after Hirst (no. 2).  The chickens of Scoppola (no. 3) have, as it were, come home to roost in Chester and McGeoch. It is open to question whether a case concerning prisoners serving e.g. ten months in prison would have yielded a declaration of incompatibility.

The (ECHR) Rule of Law

On 22 November 2012, after lengthy feet-dragging (discussed on this blog), and on the very last day of the extension granted to the UK to comply with the Hirst (no. 2) judgment, the Voting Eligibility (Prisoners) Bill was introduced. The bill sets out three legislative options: (1) ban from voting those sentenced to four years’ imprisonment or more; (2) ban from voting those sentenced to six months’ imprisonment or more; (3) maintain the status quo. The bill is undergoing pre-legislative scrutiny by a joint select committee which is expected to report to both Houses of Parliament by 18 December 2013.

Now, it is evident that option (3) is incompatible with the Hirst (no. 2) judgment; as Lord Sumption [118] notes, the explanatory memorandum acknowledges that government is unable to issue a HRA section 19 statement of compatibility. Nevertheless, neither the main judgment nor any of the separate opinions comment on the implications of parliament voting to retain the current ban whilst the UK remains bound by its international obligations. The main judgment merely notes that ‘[w]ithin the domestic legal context, it is now therefore for Parliament as the democratically elected legislature to complete its consideration of the position’. It seems that, in matters concerning supra-national institutions and obligations, rule of law considerations carry less weight.

Article 46 of the ECHR unequivocally stipulates that the UK must abide by a final decision of the ECtHR in any case to which it is a party. Indeed, the Brighton Declaration pronounced [27] that ‘[t]he Committee of Ministers [of the Council of Europe] should be able to take effective measures in respect of a State Party that fails to comply with its obligations under Article 46 of the Convention.’ The Committee of Ministers in its September 2013 meeting considered the execution of the Hirst (no. 2), underlining the urgency of bringing the legislative process to a conclusion, and declaring its intention to resume examination of the progress made to these ends in December 2013. Meanwhile, 2,354 UK prisoners’ cases (App. nos. 47784/09 et al Firth and 2,353 Others v. UK) are pending before the ECtHR, which adjourned their consideration until 30 September 2013. If, as Lord Sumption posits [118], ‘the only reasonable conclusion that can be drawn from this [parliamentary] history is that there is no democratic mandate for the enfranchisement of convicted prisoners’, a clash with the Committee of Ministers (and the ECtHR) may be inevitable.

Concluding thoughts

It appears that the legal basis for an individual right to vote in the UK and the (curtailed) protection for voting rights of incarcerated adult citizens lies (only) in the ECHR and its incorporation into domestic law, and is extended (only) insofar as the ECHR does (arguably excluding consideration of eligibility for participation in referenda e.g. the upcoming Scottish independence referendum on 18 September 2014). The main judgment made a ‘negative’ finding, namely that prisoner disenfranchisement as such is not fundamental to the UK, being a stable democracy, rather than enunciated a UK right to vote. Indeed, it is possible to read this judgment as suggesting that, were it not for the ECHR (and the HRA), absent a right to vote, voting eligibility questions in the UK would (at best) be determined based on general non-discrimination principles. This outcome is regrettable.

Dr. Reuven (Ruvi) Ziegler is a Lecturer in law at the University of Reading.

Suggested citation: R. Ziegler, ‘The missing right to vote: The UK Supreme Court’s judgment in Chester and McGeoch’ UK Const. L. Blog (24th October 2013) (available at


Filed under Human rights, Uncategorized

Adam Perry and Farrah Ahmed: Constitutional Conventions and Legitimate Expectations

FarrahAdamCourts and commentators have sometimes said the administrative law doctrine of legitimate expectations is incoherent. They say that the various ways of acquiring a legitimate expectation do not hang together; nothing unifies them. For example, Lord Brown in Paponette v Attorney General of Trinidad and Tobago agreed with a commentator’s description of the doctrine of legitimate expectations as a mere ‘patchwork’ and ‘little more than a mechanism to dispense palm-tree justice’. Both Richard Clayton and Mark Elliott have in the past favoured the ‘disaggregation’ of the doctrine.

We think this is too pessimistic. The doctrine of legitimate expectations does rest on a coherent foundation, and this post is an attempt to sketch the reason why, based on an analogy with constitutional conventions.

As readers of this blog will know, in addition to the legal rules of the constitution, there are non-legal conventions of the constitution. These conventions are normally grounded in a long practice among constitutional actors. Dicey thought that all constitutional conventions governed the exercise of the Crown’s discretionary powers. This ignores the many conventions that do not apply to the Crown, but it is correct insofar as conventions typically impose limits on discretionary powers. More exactly, the non-legal rules of the constitution impose limits on the powers conferred by the legal rules of the constitution.

Like constitutional actors, administrative decision-makers are given discretionary powers by legal rules. And, like constitutional actors, they are limited in the exercise of those powers, including by non-legal rules. We think that it is these non-legal rules that give rise to legitimate expectations.

Let us step back for a moment and explain some of the basic features of the doctrine. When you have a legitimate expectation that a decision-maker will follow a procedure or make a decision, you may be entitled to the law’s protection if that procedure is not followed or that decision is not made. There are difficult questions about when, exactly, you are entitled to the law’s protection, and what form that protection should take. But the most basic question – and the one we are discussing here – is what gives you a legitimate expectation in the first place.

Courts have answered that question in a piecemeal way. They have said that you have a legitimate expectation to a procedure or a decision if a decision-maker has promised to follow that procedure or to make that decision (for example, in R v North and East Devon Health Authority, ex p Coughlan). They have said that a policy of following a procedure or making a decision generates a legitimate expectation (as in R v Home Secretary, ex p Khan). Lastly, a consistent practice generates a legitimate expectation (as in the Council of Civil Service Unions v. Minister for the Civil Service ).

At first glance, promises, policies, and practices seem to have little in common. But in fact each of these three grounds of legitimate expectations can be thought of as constituting or making applicable a non-legal rule of one kind or another.

1.     Promises and moral rules. It is widely accepted, including by John Rawls and Joseph Raz, that there is a moral rule that requires people to keep their promises. If you promise to read a friend’s paper, you come under a moral, rule-based requirement to do as you promised. Likewise, if a decision-maker promises to hold a hearing, say, or to provide housing, it triggers the application of the promise-keeping rule.

2.     Policies and self-prescribed rules. Unlike promises, which make applicable a rule, policies are themselves rules. You create a rule for yourself by creating a personal policy, such as a policy not to mark late papers or a policy not to eat dessert. An administrative decision-maker creates or prescribes a rule for itself by making a policy designed to structure the exercise of its powers.

3.     Practices and social rules. Social rules arise, in essence, from a practice of people regularly acting in some way and of them treating that pattern of conduct as a standard or guide to how to behave. The practices that generate legitimate expectations are the same sort of practice. Take R v Inland Revenue Commissioners, ex p Unilever plc. The Inland Revenue had the discretion to accept late claims for tax relief, and on at least 30 occasions exercised that discretion in favour of Unilever. Unilever would submit an estimate, and then after a delay it would submit its final calculation, which the Inland Revenue would accept. This arrangement lasted harmoniously for 25 years. But then one year, without warning, the Inland Revenue enforced the time limit, reaping a ‘windfall’ of £17 million. Unilever successfully claimed a legitimate expectation to an exemption from the time limit. What is significant, from our perspective, is that the ingredients of a social rule are present in the case, too. There was a long pattern of conduct. That pattern was not a coincidence of habits. It grew on itself over time. Past interactions formed the basis of future interactions. There was a ‘scheme of close cooperation’ that the parties ‘faithfully followed’. Just as long practice forms a guide to future conduct in the constitutional context, the long interaction between Unilever and the Inland Revenue helped establish a standard against which the parties conduct could be measured. In this way there arose a norm, a ‘micro’ social rule, between the parties, one that required the Inland Revenue to accept Unilever’s late returns. Other cases (eg, R v British Coal Cpn, ex p Vardy and R v Brent LBC, ex p Gunning) can be thought of similarly.

Thought of in these terms, the coherence of the doctrine of legitimate expectations lies in the fact that legitimate expectations always arise from the fact that an administrative decision-maker has bound itself with a non-legal rule, whether moral, self-prescribed, or social.

What we see, then, is a similar dynamic between legal and non-legal rules in the constitutional and the administrative context. In each context, legal rules confer powers and those powers are restricted by non-legal rules. There are differences, of course. The law usually (though not always) protects legitimate expectations, but there is no law requiring constitutional actors to comply with constitutional conventions. It is a serious matter to break a convention, but it is not illegal in itself. (Even if, as Dicey believed, the breach of a convention always leads to a violation of a legal requirement.)

Reflecting on other possible differences could shed light, not just on the nature of legitimate expectations, but also on the nature of conventions. For example, some commentators (including Joseph Jaconelli) think that conventions are, or are very similar to, social rules. That would make all conventions like the regular practices that generate legitimate expectations in cases such as Unilever.

But what about the promises and policies that generate legitimate expectations? Do they not have counterparts in the constitutional context? The Sewel Convention may be an example of a ‘convention’ that arose from a promise, but it is a controversial case. Nor is it easy to think of clear examples of policies that amount to ‘conventions’. It would be surprising – but interesting – if the constitution included non-legal rules of only one mode of origin. That would be a difference with the administrative context, and one without an obvious explanation.

In summary, administrative decision-makers bind themselves with non-legal rules as constitutional actors do. In so binding themselves, administrative decision-makers generate legitimate expectations. That fact helps establish the coherence of the doctrine of legitimate expectations, which has been in some doubt. More generally, it might be possible to gain some insight into the non-legal rules present in the constitutional and administrative contexts by considering them alongside each other. We develop these points in more detail in an article forthcoming in the Cambridge Law Journal.

Adam Perry is a Lecturer in Law at the University of Aberdeen.

Farrah Ahmed is a Senior Lecturer in Law at the University of Melbourne. 

Suggested citation: A. Perry and F. Ahmed, ‘Constitutional Conventions and Legitimate Expectations’ UK Const. L. Blog (18th October 2013) (available at


Filed under Judicial review

David Mead: The Continuing Mystery of “Publicness” Within Section 6 of the HRA

davidmeadGuessing that it was not on my usual diet of journals, a colleague recently suggested an article in The Conveyancer that might be of interest. Emma Lees had written an interesting piece ((2013) 77 Conv. 211) on protest occupations and actions for possession but one aspect unrelated to the main topic intrigued me more than any other. In Olympic Delivery Authority v Persons Unknown [2012] EWCA 1012 Ch, the ODA, established under s.3 of the London Olympic Games and Paralympic Games Act 2006, sought injunctions to restrain protesters from entering and/or occupying land that was being developed as part of the Olympic site. Mr Justice Arnold had held that he was required to balance the rights of the putative protesters under Articles 10 and 11 with the ODA’s rights to peaceful enjoyment of possessions under the 1st Protocol (at [24]). I’d skimmed the case last year when judgment was delivered but hadn’t really noticed the point that Emma Lees was making: that it was “somewhat surprising that [the ODA] is deemed capable also of possessing human rights” (Lees, p.215) as it is acknowledged elsewhere in the judgment as a public authority (though Lees uses the term ‘public body’).

This short post will consider this aspect of the ODA case points. It will assert that in fact that whatever type of public authority the ODA is (on which see below) on current authority Arnold J was mistaken in holding that it had any Convention rights at all to be balanced. It will branch out into a short, brief discussion of the troubling public/private narrative using the case to identify some wider conceptual or operational problems.


First, a brief outline of section 6. The proper scope of s.6 has been subject to more voluminous literature, and case-law, than any other. The state of play is fairly well settled, judicially speaking.

  1. There are two types of public authority, to which different names attach, but these are broadly speaking core and hybrid (or functional). The reason for this it seems, is that the word “includes” in s.6(3)(b) – “includes persons certain of whose functions are functions of a public nature” – must mean there are authorities not “certain” of whose functions are public but all of whose functions are public.
  2. There is no list of either – but attempts were made by Lord Nicholls in Aston Cantlow both to describe criteria by which we might identify the former and indeed to identify a small cohort of specific authorities, so we “know” it encompasses the police, the army, government departments and local authorities.
  3. Core public authorities have no “private” side – whatever they do, they are capable only of performing public functions even when, to the outside world, they are engaged in an otherwise private activity such as, for example, buying land.
  4. Core public authorities do not possess any Convention rights.
  5. Hybrid authorities on the other hand have both public and private sides, leading to the as-yet unresolved matter of what Alex Williams calls “chameleonic effect” ([2011] PL 139) – can a hybrid authority, when discharging its public functions (howsoever we might determine these) lay claim to the rights-guarantees in the HRA?
  6. Resolving the putative exposure to the s.6 duty of an alleged hybrid authority is a two-stage test, based on a close reading of s.6(3) and s.6(5). First, is this entity performing any public functions and secondly, is the act complained of one that is private (or public)?
  7. Private entities that undertake (or even assist in?) the discharge of a public authority’s public functions – such as its statutory duty to provide care and accommodation – pursuant to a contractual/commercial arrangement are not thereby and themselves transformed into public authorities, against whom victims can make direct Convention claims using s.7(1)(a).
  8. That Article 34 of the ECHR – and its definition of want counts as a victim for the purposes of lodging an application – underpins all these approaches and outcomes.


The ODA is a statutory corporation and executive non-departmental public body (NDPB) (see The Cabinet Office Public Bodies 2012) responsible to the Department of Culture Media and Sport. Its original budget, announced in March 2007, was £9.325bn. According to the Cabinet Office, classification as an NDPB is administrative rather than legal, “a body which has a role in the process of national government but is not a government department, or part of one and therefore operates to a greater or lesser extent at arm’s length from ministers” and an executive NDPB is “typically established in statute and carrying out executive, administrative, regulatory and/or commercial functions.” It is, in the Cabinet Office scheme, at one greater remove than an executive agency. According to the ODA’s own website, its responsibilities were the “construction of venues and infrastructure for London 2012, including the Olympic Park, planning and funding transport for the Games, and regulating advertising and trading”. Its role now (until it is wound-up in 2014) is planning for, overseeing and working towards the transformation of the Olympic Village into 2,800 residential homes (East Village) an area that will include social housing, medical and educational facilities. The remaining development and regeneration of the Park and various sites is being undertaken by the London Legacy Development Corporation.

It must be beyond doubt that the ODA must be categorised as one or other of the two types of public authority. Whichever and why is not my immediate concern, though this post will address some of the matter thrown up by that distinction, for the simple reason, that on current doctrine, Arnold J took a wrong turn.

As to whether the ODA is a core authority, it is clearly not any of the four bodies named by Lord Nicholls in Aston Cantlow (see 2. above). It is clearly possible to argue that the ODA could be a body for which the UK would be directly answerable at Strasbourg, the touchstone of a body being governmental in nature and thus core. Beyond his “instinctive classification” of government departments, local authorities, police and the army, Lord Nicholls lists the possession of special powers, democratic accountability, public funding in whole or in part, an obligation to act only in the public interest and a statutory constitution. Yet, if it were a core authority, on current doctrine (see 4. above), the ODA would have no Convention rights to offset against those of the protesters. Either current doctrine is not as strong as we assume – but Arnold J would be bound to uphold it – or the ODA is not a core authority. Either way, and this goes for the aspect immediately below, greater explanation of his holding was needed.

The ODA may well be considered a hybrid authority, by virtue of performing some or “certain public functions” in relating to planning, development, construction of publicly-funded buildings and sites, transport coordination, security and safety (see s.6 of the 2006 Act) and its regulatory role in relation to trading, it meets the first hurdle in point 6 above – albeit that not all its functions are public. Construction and development might well be seen as private – on which see the discussion below – despite the source of capital being public: the Public Sector Funding Package for the Games as a whole was about £9bn. That being so, two further questions arise. First, does it have any rights of its own it can assert in the instant scenario as is assumed by Arnold J? Secondly, is it liable under the HRA to the protesters for any possible violations of their rights – i.e. does it owe them a duty under s.6 to act in a Convention compatible manner? This will be so if it is not acting privately”, as dictated by s.6(5). The answer to both turns on one single point: in what capacity was the ODA acting at the time? Taking the first point, if the ODA were conceived as being a private body at the time it sought the injunction – then, like any other private person, it could lay claim to its own Convention rights yet – and this seems to create an irresolvable tension – if it is so conceived, then it is not acting publicly within s.6(5) and so is under no rights-respecting duties towards the protesters or at least not directly (and Arnold J does not seem to be alluding to horizontality in his judgment). That being so, Arnold J must be wrong to assert that the rights of both are in play – it can only be on or the other, surely? The only caveat, and which in fact complicates yet more, is whether in considering whether a hybrid authority can exercise its rights, the question is whether it was performing a public function but if deciding if it is under a duty to third parties, it is the public (or private) nature of the act that is the key. This a matter that has not been before the courts for positive resolution.

Let us dissect a little more the possible nature of the act in question. Following Weaver the real question, and one that required again greater explication than a simple assertion of doctrinal truth, was to consider the nature of the act. On this, various views could have been reached. The majority in Aston Cantlow (Lord Scott dissenting on this point) conceived the case, enforcing liability for chancel repairs, as akin to enforcing liability for debt, a quintessentially private law relationship. The question in the ODA case should have been: is seeking injunctive relief in relation to the land it owns a private act? Here, Arnold J should have had to confront two linked issues arising from Weaver. First, must the act – which is alleged to be public – be one that is being done in pursuit of obviously or decidedly public functions? This is the paper clip point raised by Jonny Landau ([2007] PL 630). Here the Court of Appeal in Weaver divided but not along the lines by which it was disposed. Elias LJ holds that ([54]) “section 6 is not structured so as to ask whether the particular function in the context of which the disputed act takes place is a public function”. Lord Collins on the other hand – but also in the majority in terms of disposing of the case in favour of the applicant – held that ([95]) “it seems to me plain that the act in question must be an act in pursuance of the entity’s relevant functions of public nature.” Rix LJ dissented in the outcome but can be seen as aligned with Lord Collins, though not with such clarity. His judgment is largely aimed at demonstrating the non-public nature of the Trust, in terms both of function and the act of termination. He does confusingly conflate the two (see e.g. [147]) but at the very end of his judgment says this: “ While it is conceded by the Trust that in certain limited but irrelevant respects the Trust is a hybrid authority for the purpose of s.6(3)(b), I am sceptical how far the management of social housing can be brought within the meaning of that subsection” (my underlining). Clearly, in his mind – and more obviously in that of Lord Collins – the act at the heart of the dispute must be on done in performance of the body’s public functions. It thus might be relevant that the act at issue related to development of the land for the Games – not clearly a public function, certainly not so much as planning or transport coordination – despite being publicly funded. How we conceive the nature of acts performed by public authorities is what we turn to now.

Secondly, though this short post is not the place to seek to determine the “publicness” of either the ODA or the specific act of seeking an order enjoining trespass, Arnold J should have engaged in what we might call the conceptualisation issue. Is seeking that form of relief, since it is one we each can do should we worry about a possible trespass by a neighbour, be seen as “private” or, because it is being undertaken by a public authority (as we are assuming of the ODA) and (again let us assume) is being sought in pursuance of its public function to create an Olympic park, therefore a public act? This is really what divided the Court in Weaver, with the majority holding – after several pages of analysis of funding, the framework, public policy – that the act of terminating an assured tenancy for rent arrears was so bound up with the public function of providing social housing. To paraphrase Lord Scott’s approach in Aston Cantlow, is this simply enforcing a debt (private) or is it really enforcing a debt to ensure funds to maintain the parish church, a building of the established church and which itself serves certain public functions, such as burial and marriage? Clearly, in the ODA case, providing the Olympics and providing a venue for that event is not of the same quality as providing social housing (as in Weaver), so as to meet an identified public need. Arnold J could have reasoned this was “simply” seeking or maintaining possession so as to develop land, land that – once used – would be sold off. It would then likely have been seen as private. Alternatively, he could have decided the act of seeking an injunction to be public, inextricably linked as it was to developing the venue for the Olympics, and is thus the exercise of a statutory power in relation to land (s.3(2) of the 2006 Act) in order to achieve one of its statutory purpose, preparing or making arrangements for the preparation of the London Olympics. None of this is evident in the short judgment of Arnold J in the ODA case.

This short post has, I hope, illustrated some wider issues at the heart of s.6. I’ll conclude this post with two points. First is the difficulty of drawing precedent from an application for an interim injunction, at short notice, at which the protesting defendants were not represented. All that said, His Lordship reached a view on the status of the ODA and the applicability of the HRA to it that is, I have argued, misconceived (at best) or at least not fully reasoned and explained yet which stands as an authoritative ruling – or implicit aspect of the ratio – by the High Court. It thus shows the problems when public law or HRA issues arise in or before the common law courts or courts of chancery. It is the same, but in reverse, when issues of licences and trespass come before the magistrates or crown court when the police seek to enter property by consent, about which I have been writing over the past few years. The second is linked to that – that much is often assumed of the term “public authority”, in argument and reasoning, and it is only as we start to unpack it all a little that we can see there is, in many cases and in general, much more than meets the eye. Some of this is being resolved by the growing case law on s.6 but much is still up in the air.

One of those is, and this is the third point, the still elusive nature of “publicness” at the heart of s.6 analysis. While the two-stage approach to the question, following Weaver, is now both clearer and more in line with the statutory framework, by disgorging the function question from the act question, we are still no nearer knowing the criteria by which we might gauge the difference between “public acts” and “private acts”. It cannot simply be resolved by looking at the actor as that misses the point of the earlier disjoining of the two, conceptually. Neither can it be assessed by looking at the factors which tells us that the actor is public – who funds the activity – as these (without more) are institutionally constitutive, or of the agency, not the act. It further begs the question, as alluded to above. Do we assess it simply by considering whether this is an act that Joe Bloggs on the street could perform, along lines proposed by Dawn Oliver and, if so, then it is essentially a private act? This would leave very few acts – of hybrids at least (acts of core authorities are always public no matter how we view them) – as being public in nature. Alternatively, we could construe the act more contextually: would authority A be doing act X at all were it not for the fact that A is empowered, perhaps obliged, to perform public function Y or achieve public policy goal Z? If so, doing X might then be seen as performing a public act, if it is so intertwined, so integral to A’s “publicness” even if, if performed by you or me, we’d say it was obviously private. There are some indications in the judgment so the majority in Weaver here to assist: Elias LJ talks ([76]-[77]) of an act being “so bound up” and “acts which are necessarily involved in the regulation of the function” and, in reverse, excludes acts that are “purely incidental or supplementary to the principal function”. Lord Collins (paraphrasing [95] and [100])) put it thus: that the act must be in pursuance of, or purportedly in pursuance, or at least connected with, performance of functions of a public nature” but not all acts would be so construed: “many acts which are in pursuance of performance of functions of a public nature will be private acts.” While terminating a contract (Lord Collins) with a builder to repair one of the houses in the housing stock or (Elias LJ) with a window cleaner for the Trust’s properties would not be seen as anything other than a private act, what about the employees of hybrid authority A? Dismissing an employee for a Convention-protected reason, simply because it is the exercise of a contractual right is not per se a private act as that would “significantly undermine the protection which Parliament intended to afford to potential victims of hybrid authorities” (Elias LJ in Weaver at [77]). Clearly employing staff to perform the authority’s duties or role is not as wrapped up in its public functions as the termination of a tenancy in Weaver – it is one stage removed at least. We could say though that employee X would not have been employed had authority A not had to perform public function task Y – the regulatory duties say of the Environment Agency but does this not risk differential protection for those employees who perform its non-public functions, conducting research into climate change? This is problematic and we await more detailed clarification rather than, as in the ODA case, simple assumption.

David Mead is Professor of UK Human Rights Law in the Law School at the University of East Anglia

Suggested citation: D. Mead ‘The Continuing Mystery of “Publicness” Within Section 6 of the HRA’ UK Const. L. Blog (17th October 2013) (available at


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Richard Cornes: 11-1 gender ratio Court’s Achilles Heel: Reporting of the Supreme Court’s start of the year press briefing

SCA relationship of cooperation but also competing interests

On October 2 at 10am, the United Kingdom Supreme Court held an hour long pre-term press-briefing to mark the opening of the Court’s fifth year. This blog looks not only at what was said by the Court, and asked by the journalists on the day, but also what was then reported.

The Supreme Court’s relationship with the media is marked by the same combination of common interests and tensions which mark the media’s relationship with any other public body. Yes the Court wants media coverage; and a function of the media is to cover the Court. The media though will always want more than its subjects are looking to give up, and not only that, will often frame how the subject is presented according to each outlet’s particular agendas. Further, the Court, and its justices, will also have their own goals about what messages should be highlighted.

The new transparency – Court opens year with press briefing

That a press briefing featured in the start of year events says something about this still new court. Unlike what went before – the Appellate Committee – the @uksupremecourt has a now seasoned press office (for previous analysis see here and here). While the Court will not rival Strictly for coverage (and likely would not want to – justice, while prepared to show a little leg, still likes to maintain some mystique), its communications operation, which continues to innovate, has made it a world leader amongst top courts for transparency and accessibility.

The President and Deputy President speak

First, what did the Court say in opening? The President and Deputy President both spoke for a total of about fifteen minutes. Lord Neuberger opened by seeking to set the boundaries of what he and Lady Hale would be prepared to say:

As judges we are constrained in some respects as to what we can discuss. For instance, it is inappropriate for judges to give opinions publically on political matters save in so far as they impinge on the rule of law. We have to be wary of expressing views on issues which we may have to decide in due course in court.

His remaining remarks reviewed the number of cases decided since October 2012 (82), and highlighted a selection before closing with a paean to the importance of open justice, including discussing elements of the Court’s communications innovations.

Lady Hale, still, remarkably, the only woman on the Court noted some of the forthcoming terms “highlights”. There’s a curiosity here, almost all cases require leave, and must therefore be “Supreme Court worthy”, and yet this trailing of cases the Court considers likely to be of greater public interest gives us a new gloss on the leave process: the “super-Supreme Court case”. Lady Hale closed with a reflection she must be tiring of making about the lack of women on the Court, and the need for greater diversity in the judiciary generally. It was a reflection though which, as we shall see, made for good press.

Questions from the press

Then came the press questions – each topic necessarily revealing of the questioners’ interests, and in places, their outlet’s agendas. The Court (its Chief Executive, Jenny Rowe, in the chair for this purpose) gave the prized first question to Joshua Rozenberg who asked for a reaction to Conservative policy on repeal of the Human Rights Act, with a techy follow up on what the Court would do if the Act were repealed: develop a common law equivalent of the s.3 obligation (my gloss on Rozenberg’s question)? Faced so directly with such a potentially politically charged question both the President and Deputy declined to speculate. However, coming back to the point later in the hour Dominic Casciani from the BBC did get a little further, eliciting this from Lord Neuberger:

I am now doing what I said I would not do – picking up on Joshua’s point… if we did not have the Human Rights Act, the common law might develop in certain directions to accommodate a degree of change because the common law does change with the times. How it would change and in what respect is pure speculation.

The subtle message being sent by the President that repealing the Human Rights act might not be the last word on human rights principles appearing in Supreme Court jurisprudence was not one which lent itself to an easy headline (the discussion was really only covered by the UKSC blog); the skill was in putting the idea on the record without providing material for “Supreme Court responds to Tory plan to scrap Human Rights Act” type coverage. And indeed, Rozenberg chose the elements of the briefing touching on open court processes for a subsequent Guardian piece.

Francess Gibb of the Times was called next and followed up Lady Hale’s comments about diversity – an issue she did choose for one of her subsequent reports, the others highlighting the concerns Lord Neuberger raised over legal aid, and the Court’s openness agenda. David Barrett of the Telegraph followed up on diversity asking Lady Hale whether she still did not favour positive discrimination (she does not). Barrett’s story on the topic ran under the headline, “Top female judge questions male ‘dominance’”. The other story Barrett chose for print concerned a series of comments Lord Neuberger made about the importance of open justice.

Jack Doyle from the Mail then followed with a question about the wearing of veils in court rooms, including whether the Supreme Court would allow veiled advocates before it – a question which the President chose, in his own words, to “duck”. The veil question did not headline in Doyle’s coverage (though it did make the Express). Like others, one of Doyle’s subsequent pieces also pursued the theme of judicial diversity, “Women not being made top judges because men ‘dominate’ the selection process, says Britain’s only female Law Lord.” Another “’I welcome increased openness unreservedly’ Supreme Court judge’s praise for Mail’s open justice fight”. While both headlines had a basis in what had been said by the two judges, both were the most tendentious of all the subsequent coverage. The open justice theme in particular being linked to a wider Mail campaign about openness in the justice system per se.

Owen Bowcott from the Guardian brought the discussion back to open justice issues, referring to the Supreme Court’s decision (on a 6-3 vote) to allow for closed sessions in connection with the Bank Mellat case. While subsequently reporting on that discussion, and a latter question about the appropriateness of judges attending an Anglican church service to mark the opening of the legal year (which Bowcott raised as a possible independence problem for a court system grappling with questions of veils in courts), the headline for Bowcott’s coverage was, “Lady Hale, supreme court’s sole female justice, calls for diversity.”

From the BBC, this time Danny Shaw, came a question to Lord Neuberger about his previously expressed concerns about cuts to legal aid. For political sensitivity – touching as it does on sensitive resource questions for the Ministry of Justice – the question was up there with Rozenberg’s gambits on the consequences of repeal of the Human Rights Act. Lord Neuberger’s comments on October 2 included:

Rights, whether human rights or other rights, are valueless if they cannot be enforced in court. Reductions in legal aid therefore inevitably cause one concern. … I think that legal aid cuts therefore do cause any person concerned with the rule of law a worry.

The President did couch his concern in an explicit acknowledgment that difficult economic times have to be taken into account; referring back to his opening comments, he provided more of an insight into his view of the wider role of a lead judge, “one of our functions is not merely to sit in court, but also to support and ensure the rule of law.” It was a potent point, subtly made.

With the clock heading towards 11am, Brian Farmer from the Press Association asked about the wearing of legal wigs in court, linking discussion about rules for dress in court back to earlier questions about veils in court. Jane Croft from the Financial Times then came in with a question about divorce cases which allowed Lady Hale, while commenting that the principles in the area were now mostly settled (and thus not likely to give rise to Supreme Court level questions) to note, “obviously, we are not law reformers.” The line, “we are a court, and not a law reform body”, it will be recalled was one strand of Lady Hale’s dissent in the Radmacher v Granatino decision. Croft’s story the next day though was the “First woman law lord Brenda Hale calls for more female judges.”

So far I have only mentioned press coverage. The only other media coverage I found was on Radio 4’s 6pm news which picked up Lady Hale’s comments about the lack of female appointments to the Court. Standing back then, what comes through? First, the event resulted in no media “gotchas.” In particular neither what was said about the Human Rights Act nor legal aid were written up in any sense as “judges criticise government (or Conservative party) policy”. Partly I suspect that is because the judges did not give their audience any suitably juicy sound-bite. Second, there were clearly other issues running of potentially greater controversy on which the press wanted comment on the day: specifically, veils in court, and general concerns about the openness of judicial processes.

Stand-out message? 11-1: the Court’s Achilles heel

The stand-out message emerging from the exercise though is that despite 13 appointments at the Law Lord level since Brenda Hale was appointed 10 years ago, Lady Hale remains the lone female voice on the UK’s top court. Lady Hale can take only some of the credit for this point dominating the next day coverage (including comments which made it online in video form). What actually gets covered from an event like this is the press’s call. And it is striking that of coverage of the briefing (I counted around 15 or so stories), about 75% headlined the diversity point. The Court’s 11-1 gender ratio is clearly of interest to a goodish cross section of the mainstream press. And if that is the message getting through to readers from the Guardian to the Telegraph (and all points in between and beyond), the Court should be worried.

Dr Richard Cornes (@CornesLawNZUK) is a Senior Lecturer at the @EssexLawSchool, and Associate Member of Landmark Chambers, London.

 Suggested citation: R. Cornes, ’11-1 gender ratio Court’s Achilles Heel:  Reporting of the Supreme Court’s start of the year press briefing’  UK Const. L. Blog (16th October 2013) (available at

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Conference Announcements: University of Strathclyde

logotab[2]1. 2013 Public Law Lecture

Strathclyde University School of Law is delighted to host the 2013 Public Law Lecture sponsored by the journal Public Law, a Sweet and Maxwell publication.


Constitutional Transitions:

The Peculiarities of the British and the Politics of Comparison


Christine Bell

Professor of Constitutional Law, University of Edinburgh


Date & time: 13 November 2013, 6pm – 7.15pm (refreshments served from 5.30 pm).  The lecture will be followed by a reception, to which all attendees are invited

Venue: University of Strathclyde, Court/Senate Suite, Collins Building, Richmond St, Glasgow

Registration: Attendance at the lecture is free, and all are welcome, but booking is essential.  To register for this event, please visit 

2. Scottish Constitutional Futures Forum Workshop: After the Referendum: A Constitution for an Independent Scotland

This is the first of two workshops exploring the implications of a referendum for Scotland’s constitution.  This workshop focuses on the constitutional implications of a yes vote; the second, to be held at the University of Glasgow on 26 November 2013, will discuss what constitutional changes might nevertheless be desirable in the event of a no vote.

Date & time: 13 November 2013, 9.15 am – 5 pm

Venue: University of Strathclyde, Court/Senate Suite, Collins Building, Richmond St, Glasgow

Registration: Attendance at the workshop is free, and all are welcome, but booking is essential.  For further details and to register for this event, please visit


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