Category Archives: Judicial review

by Constitutional Law Group | February 26, 2013 · 9:11 am

David Mead: “Don’t Think Of An Elephant”: How Conceptualising Is Able To Skew The Outcome In Human Rights Cases

In his 2004 book “Don’t think of an elephant” cognitive linguist George Lakoff offered his view on the recent US political landscape. I’m very grateful that Daithí Mac Síthigh made me aware of it. Specifically, Lakoff tried to set out what he thought accounted for the success of the Republican right in winning the battle for the public’s hearts and minds during the 1990s. He analysed the debates surrounding several contentious issues, and the manner in which those debates, literally, were constructed. For example, on the issue of tax, instead of campaigning for “tax cuts” for the rich, Republicans framed the debate as one in which they were arguing for tax relief. As Lakoff wrote, “When the word tax is added to relief, the result is a metaphor: taxation is an affliction. And the person who takes it away is a hero, and anyone who tries to stop him is a bad guy. This is a frame. It is made up of ideas, like affliction and hero. And if people try to stop the hero, those people are villains for trying to prevent relief.”

This short post summarises some of my own “work in progress” which applies Lakoff’s idea of framing, or “conceptualising”, to the law specifically when human rights issues come to the fore. My primary aim in doing so is to seek views on whether it offers anything new and coherent. I vacillate between thinking that the argument it presents seems rather like the emperor’s new clothes and thinking there might somewhere be a relatively rich seam to be mined.

Not being much of a legal theorist or legal reasoner, it has dawned on me several times that I may be barking not up the wrong tree, but up a non-existent tree. That said, the decision – by either counsel or judge – about how to “conceptualise” the case in hand, or more precisely, the facts of the case in hand, doesn’t seem to be given much attention in legal literature. Yet, the way in which any legal scenario is conceptualised, that is to which area of law the factual matrix is best or most appropriately linked, can go a long way to determining the outcome or ultimate disposition, exactly as it can with framing contentious political questions. This happens in most cases at an almost subliminal level and for the most part is unlikely to be disputed, and unlikely to affect the outcome. That’s not always the case. For a plaintiff wrongly to decide – or to be wrongly advised – that a case raises a public law issue, rather than being simply a private law dispute – public sector employment contracts for example – can have serious consequences, as it did in, say, Evans v University of Cambridge.

In the human rights field, how the matter has been framed or conceptualised has the potential to affect how the case is resolved, if not the actual outcome in every instance. The remainder of this blog outlines some of the ways in which this might occur. The fuller article will plot a formal typography. Issues and concerns surrounding the conceptualisation of a case is neither new nor unique to human rights cases – or even public law. This much, I hope, is obvious. We might think of arguments over administrative vs. judicial hearings, in the days of Nakkuda Ali and Ridge v Baldwin, or categorising civil wrongs as actions on the case or damages as pure economic loss. The point is more that it has the potential to have greater effect, simply because of the issues in play and the public nature of the rights at stake.

First and most obviously, a case may not be framed as raising a rights-issue at all. The pre-HRA case of Sultan Khan in 1996 exemplifies this well. There, the House of Lords did not see the placing of a bug on a suspect drug dealer’s house as being about privacy at all. It was, in their eyes, simply a case about the admissibility of evidence. Secondly, there are cases where the courts do not see the facts as engaging a right at all. A good example would be the employment law case Pay where the EAT did not consider that being dismissed by the probation service for engaging in sado-masochistic sexual activity outside of and unconnected to work, raised Article 8 issues at all. Another would be Gillan. There, a half-hour stop and search under s.44 of the Terrorism Act 2000 was held by the House of Lords not to be a deprivation of liberty (within Article 5) and they doubted if it engaged the right of privacy in Article 8. In both, the European Court held (Gillan v UK) or in Pay v UK assumed otherwise – though Mr Pay lost on the facts. It’s crucial, of course, that the engagement issue is “correctly” disposed of, if for no other reason than that – in the case of qualified rights – the burden of showing the proportionality of the measure then falls on the state. Whether the facts are framed as to prefer one right over another is the third way in which conceptualisation rears its head. Was Mendoza really a case about equality and non-discrimination – or is it possible to see it as raising questions about the allocation and regulation of that scarce socio-economic resource, housing supply – albeit in the private market? The extent to which a court is prepared to defer to the primary decision-maker may depend on such categorisations. Last, whether we – and judges – view a case as being about private rights or about public rights, and values, is important too – and will clearly affect the outcome. Of course, the Occupy cases like Samede are about how private landowners can use their own land – but are they not also about how groups of citizens, perhaps disenfranchised, are able to utilise their public rights of free speech and protest? In an area I have written about recently – police searches by consent ([2012] Crim LR 97) – seeing the only issue as one of giving the police licence to do that which would otherwise be trespass and not as raising public law issues of accountability, transparency and power does not fully convey the position when the police come knocking.

Framing is not new – nor confined to law. We see it every day in newspapers – fitting an item into our pre-existing world view or sensitivities, or even expectations. Was Hilary Mantel’s LRB piece, really an attack on royalty – and on Kate Middleton – or was it a comment on the workings of the press, something concealed in the press reports themselves? The press of course “frame” the human rights debate too – by selective inclusion and language, and even perhaps deliberate conflation of that two-headed European beast, the EU and the ECHR. Framing and conceptualisation in the law though is qualitatively different. By its nature, litigation has the potential to juridify social relations and scenarios – they exist no longer on the street or at work but are legally enshrined and given legal form – and not, of course, simply for that one case. Deciding, to take another example, whether a claim for misusing private information is a bastardised equitable claim or a new type of tort will dictate whether damages are can be refused for future claimants on a discretionary basis. It’s important we work at seeing the law through the right lenses.

David Mead is Professor of Public Law & UK Human Rights at the University of Essex

Suggested citation: D. Mead, ‘”Don’t Think Of An Elephant”: How Conceptualising Is Able To Skew The Outcome In Human Rights Cases’ UK Const. L. Blog (26th February 2013)(available at http://ukconstitutionallaw.org).

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Filed under Human rights, Judicial review

Tagged as Constitutional Theory, Human Rights Act, statutory interpretation

by Constitutional Law Group | February 25, 2013 · 8:47 am

Greg Weeks: Can you stop the Revenue from acting on a change of mind?

A recent judgment in an interlocutory hearing in the Federal Court of Australia has raised the fascinating question of what redress might be available against a revenue authority for changing its mind. In Macquarie Bank Limited v Commissioner of Taxation, the applicant sought to restrain the Commissioner of Taxation from acting on his changed view on the law relating to Overseas Banking Unit (‘OBU’) expense allocations. The applicant has commenced judicial review proceedings against the Commissioner which are yet to be heard. The interlocutory application was for urgent injunctive relief to prevent the Commissioner acting on his stated intention for the Australian Taxation Office (ATO) to “apply retrospectively the Commissioner’s new view on the law concerning the allocation of OBU expenses”. Griffiths J rejected the interlocutory application.

Assuming that Macquarie Bank pursues the substantive proceedings in this matter, it will need to overcome some significant hurdles in order to succeed. There is, at present, little scope for preventing a public authority from changing its mind in Australia. There is no doctrine of public law estoppel; public authorities are not bound to their promises in Australia if this would cause them to act ultra vires or would fetter their discretion. The Australian High Court has also consistently rejected substantive enforcement of legitimate expectations and, more recently, has stated that the phrase should be “disregarded” even in reference to the obligation to provide procedural fairness. The extent of the problem facing Macquarie Bank is neatly summarised by the grounds of judicial review on which they propose to rely:

There are several grounds of judicial review challenge. They include a primary claim that the decision [to act on a revised view of the law relating to OBU expenses] is Wednesbury unreasonable. Further grounds are also raised of illogicality or irrationality, no evidence to support the decision, failure to take into account a relevant consideration or taking into account of an irrelevant consideration, failure to observe the requirements of natural justice, excess of authority resulting in the decision being ultra vires, and a failure to comply with procedures which the decision-maker, it is said, was required to observe.

There are few modern examples of Wednesbury unreasonableness being argued successfully in Australian courts. Like the related ground of illogical or irrational fact finding, it demands nothing short of absurdity on the part of a decision maker. This would be difficult to prove particularly where Macquarie Bank has deliberately avoided making any allegation of bad faith against the Commissioner or the ATO (although the two grounds are not coextensive, they share substantial overlap which has been noted in regard to Warrington LJ’s famous example in Short v Poole Corporation [1926] Ch 66). As a “primary claim”, an argument that the Commissioner has acted in a Wednesbury unreasonable manner does not inspire great confidence, given that it is a ground which has never had better than a remote chance of success.

A secondary problem is that the Australian High Court has interpreted the legislative scheme contained in the Income Tax Assessment Act 1936 as limiting the opportunities to challenge decisions of the ATO through judicial review where statutory review or appeal procedures are provided. The rare exceptions to this approach relate to “allegations of bad faith or fraud or abuse of power”, which have not at this stage been articulated in the proceedings commenced by Macquarie Bank.

The fact that Macquarie Bank’s case will be hard to make out does not, however, mean that it lacks merit. Specifically, the applicant’s claim that “the indication given by the Commissioner as to his change of view is in breach of the ATO practice statement PSLA 2011/27” demands consideration. The Practice Statement in question is a soft law instrument entitled “Matters the Commissioner considers when determining whether the Australian Taxation Office (ATO) view of the law should only be applied prospectively”. If the Commissioner acts on his stated intention to apply his altered view of the law concerning OBU expenses retrospectively, and to do so falls outside the terms of the Practice Statement, one might justifiably conclude that those (including Macquarie Bank) who have arranged their affairs in reliance on the ATO’s previously stated legal view as to OBU expenses, along with the terms of the Practice Statement, have been penalised without any fault.

The facts are reminiscent to some extent of those in R (Davies) v The Commissioners for Her Majesty’s Revenue and Customs, in which the Supreme Court considered a vaguely expressed soft law guidance note which purported to indicate when a person ceased to be resident in the UK for tax purposes. The Supreme Court held by majority that the guidance note had not been complied with by the applicants in any case but the case was troubling (and members of the Court of Appeal gave voice to their concerns in this regard) given that the soft law guidance note was on every account very poorly drafted but was nonetheless sufficiently convincing to guide the commercially sophisticated applicants to arrange their affairs on the faith of it.

There can be no doubt that soft law issued by revenue authorities is treated seriously by those looking to arrange their affairs in accordance with the law. It is frequently the case that the view of the law taken by the revenue authority is incorrect, a circumstance which may be pointed out by a court or which the revenue authority may come to realise unaided. In such cases, the revenue authority must of course revise its stated view of the law on a given subject. I doubt that Macquarie Bank would contest this statement in its proceedings. However, this need not oblige a revenue authority to apply its changed view retrospectively. The discretion invested in revenue authorities with regard to the collection of revenue has been recognised at least since the Fleet Street Casuals Case and the Commissioner’s powers to secure an optimal (rather than the maximum) collection of revenue is recognised in Australia both by the ATO and the legislature.

While it is to be hoped, however, that the court which hears the substantive application brought by Macquarie Bank will bear in mind the immense practical power of soft law, it will be confined by the legal framework of judicial review in Australia. There is, on the current state of the law, little hope that Macquarie Bank will be able to constrain the broad discretion invested in the Commissioner with regard to the collection of taxation revenue.

Greg Weeks is a Lecturer in Law at the University of New South Wales

Suggested citation: G. Weeks, ‘Can you stop the Revenue from acting on a change of mind?’ UK Const. L. Blog (25th February 2013) (available at http://ukconstitutionallaw.org)

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Filed under Comparative law, Judicial review

Tagged as Australia, Judicial Review, legitimate expectations, public law estoppel, soft law

by Constitutional Law Group | February 13, 2013 · 5:59 pm

Roger Masterman: The Mirror Crack’d

Until recently, the Ullah principle – that in giving effect to the Convention rights under the HRA the ‘duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’ (at [20]) – was something of a mantra for certain members of the senior judiciary. Since Ullah was decided by the House of Lords in 2004, the core assumption of the principle, that the domestic law of human rights should in content and scope mirror its Strasbourg counterpart, has come to exercise a controlling and pervasive influence over the application, and meanings of, the Convention rights applied under the HRA.

The legacy of Ullah is clearly discernible across a range of judicial comment on the influence of ‘clear and constant’ Strasbourg jurisprudence applied as a result of the HRA; the best known – ‘Strasbourg has spoken, the case is closed’ (at [98]); ‘no less, but certainly no more’ (at [106]) – re-emphasise that the Strasbourg case-law is perceived by some judges as setting the strict boundaries within which a domestic human rights jurisprudence may develop. The Ullah principle simultaneously treats the Strasbourg case-law as an aspiration and as a constraint, and eschews municipal development – by domestic courts at least – of the Convention rights that cannot be clearly underpinned by reference to clear and relevant Strasbourg authority.

In the recent decision of the Court of Appeal in R (on the application of the Children’s Rights Alliance for England) v Secretary of State for Justice Laws LJ encouraged the Supreme Court to reconsider the wisdom of the Ullah principle. In a short postscript to his decision (at [62]-[64]), Laws LJ added the following:

“… perhaps I may be forgiven for stating, with great deference to the House of Lords and the Supreme Court, that I hope the Ullah principle may be revisited. There is a great deal to be gained from the development of a municipal jurisprudence of the Convention rights, which the Strasbourg court should respect out of its own doctrine of the margin of appreciation, and which would be perfectly consistent with our duty to take account of (not to follow) the Strasbourg cases. It is a high priority that the law of human rights should be, and be seen to be, as sure a part of our domestic law as the law of negligence. If the road to such a goal is clear, so much the better. ”

Some clarification from the Supreme Court may well be worthwhile, especially as the cracks in the Ullah principle are becoming all the more evident.

There are, in theory at least, a range of suggested circumstances which might underpin a departure from the apparent application of the Ullah principle. An entirely non-exhaustive (and highly-simplified) survey of the case-law reveals that in HRA adjudication relevant and applicable Strasbourg jurisprudence should be presumptively followed unless:

1. Its application would compel a conclusion which would be ‘fundamentally at odds’ with the United Kingdom’s separation of powers (whatever that might be) (Alconbury at [76]);

2. ‘Special circumstances’ (whatever they might be) justify a departure (Alconbury at [26]);

3. The court can think of a ‘good reason’ that the Strasbourg jurisprudence not be applied (Amin, at [44]);

4. It is ‘reasonably foreseeable’ that the European Court of Human Rights would now come to a different conclusion than in the available authorities (R (on the application of Gentle) v Prime Minister, at [53]);

5. The question to be resolved is one for domestic authorities to ‘decide for themselves’ (Re P, at [31]);

6. The area is governed by common law and the court is minded to exercise its discretion to depart from the Strasbourg line (Rabone v Pennine Care Foundation NHS Trust, at [113]);

7. The court attaches ‘great weight’ to a legislative decision which determines the balance to be struck between rights and interests in a way which might be interpreted as being inconsistent with Strasbourg authority (Animal Defenders International, at [33]);

8. The Strasbourg case-law is past its use-by date (R (on the application of Quila v Secretary of State for the Home Department, at [43]);

9. The domestic court prefers to follow non-Strasbourg authority (R (on the application of Daly) v Secretary of State for the Home Department, at [27]-[28]).

10. The judge/court regards the Strasbourg jurisprudence as being not ‘particularly helpful’ (A v Home Secretary, at [92]);

11. The Strasbourg authority is wrong (or as Lord Neuberger put it in Manchester City Council v Pinnock, at [48]) ‘inconsistent with some fundamental substantive or procedural aspect of our law’);

12. The Convention case-law is badly-informed (or as Lord Neuberger put it in Manchester City Council v Pinnock (at [48]) ‘appear[s] to overlook or misunderstand some argument or point of principle’);

13. The court wishes enter into a ‘dialogue’ with the European Court of Human Rights (on the basis that the applicable case law may be wrong or badly-informed or both) (R v Horncastle).

Even where relevant and potentially applicable Strasbourg authority is available, a number of Strasbourg-avoidance techniques appear to be at the disposal of domestic courts. The currency of the principle can, in part, be explained by the fact that for much of the lifespan of the HRA, these exceptions were – as Jonathan Lewis ([2007] PL 720) has observed – easier to identify in theory than in practice. And even though it may now be possible to identify a greater number of exceptions to the general presumption – though some of the above may not be worthy of the label – the Ullah interpretation of the obligation imposed by s.2(1) HRA remains authoritative and binding on lower courts. The Ullah principle is, however, approaching a crossroads.

The retirement of the Ullah principle’s architect and advocate – Lord Bingham – may have marked something of a turning point. Shortly after, Horncastle provided with perhaps the most visible evidence to date of the United Kingdom’s apex court seeking (ultimately successfully) to engage critically with otherwise relevant and applicable Strasbourg authority. Since then, an increasing number of senior judges – Laws LJ now included – have questioned whether the principle ought not to admit of greater, more concrete, exceptions and whether it in practice exercises a disempowering effect on the courts. Baroness Hale, for instance, argued in 2011 that the ‘mirror principle … can suggest a position of deference [to the Strasbourg court] from which it is difficult to have an effective dialogue.’ Lord Kerr, meanwhile, spoke forcefully in Ambrose v Harris against the ‘Ullah-type reticence’ under which ‘it is … considered wrong to attempt to anticipate developments at the supra-national level of the Strasbourg court’ and which dictates that domestic courts ‘should not go where Strasbourg has not yet gone’ (at [126]). Extra-judicially, Lord Kerr has argued that domestic courts should avoid furthering the suggestion that they are merely the ‘modest underworkers’ to the European Court of Human Rights.

Perhaps most importantly however, the Bill of Rights debate has emphasised that while the legal influence of the Ullah principle is considerable, it has arguably had a damaging effect on political perceptions of the HRA and the link the Act creates between domestic law and the Convention jurisprudence. The relationship between domestic courts and the European Court of Human Rights that Ullah embodies is out of touch with the widely-held view that the content of our domestic human rights law should not be ‘dictated’ to us by the European Court.

This of course raises more difficult questions. Many of those who have criticised the Ullah principle have done so for the reason outlined by Laws LJ; that the rigid relationship it promotes increases the likelihood of the Convention being perceived as an alien appendage, runs the risk of embracing the Convention’s deficiencies and becomes insensitive to national quirks or peculiarities. A good number also reject the view that the Strasbourg standard should be perceived as being both base-line and target for a national rights jurisprudence.

Others – including, it is suspected, a number in the majority of the Bill of Rights Commission – would seek to dilute the influence of the European Court of Human Rights over national law both in order to restore faith in a misguided notion of ‘national sovereignty’ and to simultaneously dilute the level of protection available for rights at the national level. A number of senior judicial figures appear to sympathise with the extent to which the European Court of Human Rights is perceived to shape the content of national protections; Lord Scott has spoken in in the House of Lords of the need to avoid the ‘occasional extravagances of the Strasbourg Court’ while Lord Sumption – in his FA Mann lecture (and prior to taking up his position on the Supreme Court) – raised similar concerns about Strasbourg overreach. This arm of Ullah-scepticism seems to suggest that certain elements of the Strasbourg case-law should be resisted, rather than engaged with constructively in order to better the state of the (domestic and international) law of human rights.

The brief survey of exceptions above highlights that – while important – the Ullah principle is not non-negotiable. The challenge for the Supreme Court, as it was for the House of Lords before it, is to navigate a course between the extremes of unquestioning application of the Strasbourg case-law and unprincipled antagonism towards it. An acknowledgement by the Supreme Court that practice under the HRA reveals a more sophisticated approach to the Convention case law than the Ullah mantra would suggest may go some way to addressing Laws LJ’s concerns and may, in turn, address what the Bill of Rights Commission seemed to think a lost cause; a sense of domestic ownership over the Convention rights.

Roger Masterman is Reader in Law at Durham University.

Suggested citation: R. Masterman, ‘The Mirror Crack’d’ UK Const. L. Blog (13th February 2013) (available at http://ukconstitutionallaw.org)

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Filed under Human rights, Judicial review

Tagged as European Court of Human RIghts, Relationship Between European and National Law, Ullah Principle

by Constitutional Law Group | February 11, 2013 · 2:40 pm

Stuart Lakin: Parliamentary Privilege, Parliamentary Sovereignty, and Constitutional Principle

While this was probably not its primary objective at the time, the Daily Telegraph scoop on MPs’ expenses in 2008 has led to the reinvigoration of debates about Parliamentary privilege. Since then, this area of law and Parliamentary practice has hardly left the news, both mainstream and legal. We have had the Chaytor decision, the arrest of Damien Green MP, the flouting of super-injunctions by MPs, phone hacking as a possible contempt of Parliament, questions about whether certain forms of contempt of Parliament (e.g. refusing to give evidence to a Select Committee) should be enforceable by the courts, and so on. The CLG held a brilliant seminar on this topic towards the end of last year.

The latest stage of this doctrinal resurgence is a Green Paper, Parliamentary privilege Cm 8318, published at the behest of the Government in April 2012 (all references in parenthesis below will be to this Paper unless otherwise indicated). The overarching question in the Paper, in the words of David Cameron, is:

“whether the balance is right in all cases between the necessary protection afforded by privilege, and the important principle that MPs and peers should be subject wherever possible to ordinary criminal and civil laws” (para 32, quoting a letter by the PM)

The Government broadly answers that question with a ‘yes’:

“The Government believes that, notwithstanding the discrete areas discussed in this paper where there may be a case for legislative change, the boundaries of parliamentary privilege have for the most part been very clear, and its operation has not been sufficiently problematic to justify such a radical departure from the UK’s basic constitutional underpinning.” (para 39)

Among some of the more interesting recommendations (or options) for legislative change (or maintenance of the legislative status quo) are the following:

- That codification of the law on privilege is not necessary (paras 37-39)

- That the phrases ‘proceedings in Parliament’ and ‘place out of Parliament’ in Art IX of the Bill of Rights 1689 do not need to be clarified in legislation (para 59-61 and para 80-82)

- That a general rule might be introduced disapplying privilege in cases of alleged criminality, subject to certain excepted offences “where the alleged criminal offence related closely to the principal reason for the protection of privilege” (see, generally chapter 3)

- That a ‘safeguard’ should be introduced whereby the consent of the DPP (or equivalent) is needed before evidence of ‘proceedings in parliament’ can be used in a criminal prosecution (para 141)

- That, given the Speaker’s discretion on the use of the House sub judice rules, there is no need for legislative change on civil liability (e.g. for defamation or breach of court injunctions) (para 167)

- That, given the Chaytor decision, there is no need for legislation to clarify the exclusive cognisance of Parliament (para 206-217)

Discussion

In this post, I want to make three points about the issues covered in the Green Paper (and in debates about Parliamentary privilege more generally). First, I want to say something about the nature of the privilege debate: the type of reasoning that can inform this issue. I shall suggest that both the Green Paper and the decision in Chaytor correctly approach questions about the meaning and scope of Parliamentary privilege as a matter of constitutional principle. Apologies to readers for banging the same old drum!

Secondly, I want to consider the relationship between the privilege debate and debates about Parliamentary sovereignty. I shall argue that these two debates are coterminous: they each involve competing arguments of constitutional principle about, for instance, the separation of powers, democracy, and the rule of law. Both the powers of each House of Parliament to regulate its internal workings, and the powers of Parliament to legislate, will depend on the meaning that one ascribes to these principles.

Thirdly, I shall argue that constitutional principles of the sort just described, properly understood, recommend a narrow account of Parliamentary privilege and legislative power. The undoubted democratic justification for these Parliamentary powers must always be sensitive, I shall say, to the demands of individual rights and the principle of equality before the law. Judges must be left to strike the correct balance between these principles in each given case. (For a compelling recent argument to this effect, see Sir Stephen Sedley’s recent LRB piece on privilege and superinjunctions).

I shall take these three points in turn.

A. The Nature of the Privilege Debate

What is striking as one reads the Green paper is the normative character of its reasoning. Each of the different issues for consideration are presented in terms of a range of competing principles. We could begin with David Cameron’s words (above) which refer, in substance, to the balance between Parliamentary privilege and the principle of equality before the law. Take the following additional examples:

Freedom of speech is necessary for “free and frank debate” and to “freely represent the views of [an MP’s] constituents” (para 45).

“[I]t is unsatisfactory that anyone should not know, in any given circumstance, whether the actions they are undertaking are covered by absolute privilege.” (para 51)

“Though an individual’s right to approach their MP is an essential part of the democratic process, this has to be balanced against the rights of others, including potentially the right to a fair trial and the right to privacy. Extending qualified privilege to all forms of correspondence could…undermine the rule of law” (para 73)

“It can be argued that it is wrong in principle to deny the courts access to any relevant evidence when the alleged act is serious enough to have been recognised as a criminal offence.” (para 94)

“The draft clauses are therefore one way in which it might be possible to balance two competing requirements – ensuring that parliamentary privilege cannot be used to evade the reach of the courts where criminality is suspected, while protecting the right of free speech and debate in Parliament by minimising any chilling effect to free speech in parliamentary proceedings.” (para 101)

“the issues [in relation to super-injunctions] are similar to a longstanding concern about anonymity injunctions and the balance between the legal and human rights of others and the ability of parliamentarians to make statements about them in proceedings under the protection of absolute privilege. (para 164)

Any lawyer could be forgiven for thinking that they were reading passages from a Lord Steyn judgment rather than a set of governmental proposals. Expressed in this way, the debate about Parliamentary privilege is rightly cast as one of constitutional principle. Where one stands on the correct balance between the principles mentioned above (and other relevant principles), will depend, in part, on one’s general theory of the correct distribution of powers between Parliament and courts. Someone who believes that representative democracy is the paramount principle in the constitution will likely defend a robust account of Parliamentary privilege, one that elevates MPs’ freedom of speech and the exclusive cognisance of Parliament, over judicially enforceable individual rights. Someone who, by contrast, believes that the rule of law and individual rights lie at the foundations of the constitution may advance a much weaker account of Parliamentary privilege. He may think that democracy must sometimes give way to those principles – or that democracy entails the judicial protection of those principles. I shall explain in the third section below why I am with those who favour the latter account.

The Chaytor decision sets the tone for the Green Paper. Throughout its judgment, the Supreme Court places the concept of Parliamentary privilege in the context of the written and unwritten principles of the constitution. The threshold question of kompetenz-kompetenz (i.e. who gets to decide on the limits of Parliamentary privilege) is a good early example. That the courts have the power to decide on the scope of Parliamentary privilege is justified by the principle that the Houses of Parliament cannot be a judge in their own cause about the extent of their own jurisdiction (see paras 14-16 of Chaytor, applying the seminal case of Stockdale v Hansard). Similarly, the key finding in Chaytor that privilege applies only to the ‘core or essential business of Parliament’ stems from the principles that justify the very purpose of the Bill of Rights 1689: the need for collective deliberation and decision-making (para 62 of Chaytor). I shall return to this reasoning about the Bill of Rights in the next section when I turn to the notion of Parliamentary sovereignty.

Two points occur about the privilege debate just described. First, the type of reasoning in both the Green Paper and Chaytor is in stark contrast to more traditional debates on this topic. One customarily finds dry, textual debates about the meaning of the phrases ‘proceedings in Parliament’ and ‘place out of Parliament’. People compile and compare lists based on the ‘ordinary language’ meaning of those statutory phrases. And when this exercise fails (as it inevitably does), they call for the creation of a new committee to draw up further lists. The Green Paper and Chaytor decision are refreshing for their rejection of that unreflective approach. As we have seen, they each focus instead on the constitutional principles that determine whether any given form of conduct should or should not be covered by Parliamentary privilege. It is little surprise that the Government has counselled against codification of the law of privilege in the Green Paper. Beyond relatively abstract statements of principle, constitutional law simply does not lend itself to this kind of formalism (a point made very well by Forsyth and Elliott in relation to administrative law in their recent post).

Secondly, we should welcome the open-minded approach taken both by the Government and the Supreme Court towards constitutional doctrine in general. Note the following phrase in the Ministerial Forward to the Green Paper:

“[The Chaytor decision] served as a reminder that even the most durable of constitutional tenets should periodically be reviewed.”

A more elaborate way of putting this same point is as follows. The correct understanding of the British constitution must depend on a constant reassessment of how the underlying principles of the constitution – democracy, individual rights, the rule of law, the separation of powers, and so on – impact on the practices of institutions, officials and individuals.

B. Parliamentary Privilege and Parliamentary Sovereignty

The two points I have just made about the privilege debate bring me to my second argument in this post. It is that debates about Parliamentary sovereignty (i.e. the legislative powers of Parliament) should be conducted in precisely the same way as debates about Parliamentary privilege. Indeed, these two debates, I suggest, are coterminous: they revolve around the same types of principles, and they generate identical accounts of the proper scope of Parliament’s powers (or each type) vis-a-vis courts.

Before I develop this argument, let me first contrast the privilege debate described in the last section with traditional Parliamentary sovereignty debates. Where the debate about Parliamentary privilege in the Green Paper and Chaytor is principled and open-minded about the tenets of the constitution, the sovereignty debate in the UK is typically unprincipled and dogmatic (can you imagine a periodic review on the question of the whether or not Parliament is still sovereign?!) Parliamentary sovereignty, it is often contended, is just a fact about law and the constitution; it requires no justification in its defence, and no argument of principle can dislodge it from its preeminent position. This latter approach is, of course, the legacy of influential figures such as Dicey. Dicey is often lauded as the Father of the constitution, but he is really the Father – or at least one important ancestor – of a morally sterile mode of constitutional argument, one that embraces empirical observation of what ‘actually happens’ in the constitution (as if everybody agrees on this!) over normative argument about why and how different facts about the constitution are morally significant.

This blog is not the place to delve too deeply into the case for one or other of these approaches (or some other approach) to constitutional analysis. I have had a tentative go at this elsewhere. For now, I shall take my lead from the Green Paper and the Chaytor decision, and explain how the principled arguments of the Government and Supreme Court about Parliamentary privilege can be applied equally to the issue of Parliamentary sovereignty.

Our starting point is John Locke, the Glorious Revolution of 1688, and the Bill of Rights 1689. Locke’s arguments in his Second Treatise on Government are often thought to have precipitated the Glorious Revolution, or at least to have provided the ex post facto justification for it. At the heart of Locke’s argument is a repudiation of the idea of absolute authority. His immediate target was Monarchical power. But his argument against absolute authority is wider than that. It is an argument against any form of absolute authority, and an argument in support of authority limited or defined by law. Locke gives his own detailed account of the nature of those limits. Parliament (or ‘the Commonwealth’), he said, must act in a way that honours peoples’ natural rights of liberty and quality, and the fundamental law of nature (the preservation of life). But again, we should not lose sight of Locke’s bigger point. It is this: an authority only has the legal power to act in a way that accords with the principles or reasons that justify the existence of that authority (whatever those principles or reasons might be).

The Bill of Rights 1689, I suggest, is an attempt to enshrine the broad Lockean principle just stated. Art IX tells us – to put it a plainly as possible – that Parliament has the legal right to do its particular job, and that, in so far as it is doing that job, no person or body has the legal power to interfere; but Art IX also suggests that there may be a need for some other person or body to interfere if Parliament does things that are not part of its job. This is precisely the way that the Supreme Court approached the Bill of Rights in Chaytor. As noted above, Lord Phillips said, first, that Art IX should be given a “narrow ambit restricted to the important purpose for which it was enacted” (para 62 of Chaytor); and secondly, that it must be the courts that decide what that purpose is, and whether or not Parliament has acted contrary to it. Crucially, Lord Phillips’s point speaks as much to Parliamentary sovereignty as it does to Parliamentary privilege. The idea that Parliament can do anything in its legislative capacity is equally inimical to the Lockean principle as the idea that Parliamentarians are protected by privilege for any type of conduct. There is no principled basis, in my view, on which to treat these two sets of Parliamentary powers differently. (It therefore makes no sense to suggest, as the Government occasionally does in the Green Paper (e.g. para 23), that Parliamentary privilege is justified by Parliamentary sovereignty. This is entirely circular.)

Three points need to be made on the back of these conclusions. First, a clarification. I said above that the Bill of Rights 1689 enshrines the Lockean principle; it does not create that principle. In other words, even without the Bill of Rights, the powers of Parliament and courts would depend on the principles that justify the existence, role and functions of those institutions in the constitution. The need for principled justification of the powers of Parliament and courts is fundamental to the constitution; it is not something that any Act of Parliament or judicial ruling can dispense with.

That first point leads to a second. Given that Parliament’s powers arguably derive from the principle of democracy (properly understood), it is doubtful whether it even has the legislative power to control some of the issues canvassed in the Green Paper. If, as I shall argue in the next section, the principle of democracy needs to be understood in the light of individual rights and the rule of law, then some individual rights (and corresponding civil or criminal law duties) may be among the principles that define Parliament’s powers (of each type). In familiar public law parlance, certain proposals/recommendations in the Green Paper are arguably ultra vires the powers of Parliament.

That second point raises a third. The conclusion that Parliament and courts must act in accordance with the principles that justify their existence, role and functions still leaves much work to do. We need to advance arguments about which principles, understood in which way, have which effect in the constitution. There is plenty of room for disagreement on these questions. My point in this section is that these questions apply as much to the issue of Parliament’s legislative power as they do to the issue of Parliamentary privilege.

C. Parliamentary Power and the Role of Courts

And so we come to the crunch question. What are Parliament’s powers (of each type) vis-a-vis courts in the British constitution? Those who take an expansive view of the ‘core or essential business of Parliament’ rely, whether explicitly or implicitly, on a particular model of democracy, rights, the rule of law and the separation of powers. Democracy, they suppose, means that elected representatives should be free to say or do whatever is necessary to promote the collective interest. Individual rights and the principle of equality before the law must yield to that democratic imperative. The role of courts, they say, is simply to implement Parliament’s will (or to acquiesce to the different forms of conduct of MPs): judges have no legitimate power to question any aspect of Parliament’s work.

These arguments, I think, misunderstand the principles of the constitution. If democracy has any value at all, it must be that each member of a political community is treated as an equal in the way that political decisions are taken. On this understanding, democracy entails that individuals enjoy certain political rights against Parliament, rights that protect them against discriminatory or arbitrary treatment (the right not to be defamed or subjected to hate speech may well be among such rights). Closely allied to that conception of democracy is an egalitarian model of the rule of law. The legal rights and duties that flow from Parliamentary enactments or judicial decisions must be applied rigorously and consistently to institutions, officials and individuals alike. As Dicey himself said: noone is above the law. And to return to Locke: “where law ends, tyranny begins”.

These understandings of democracy, rights and the rule of law recommend a narrow account of Parliamentary privilege and Parliamentary legislative power (or perhaps even the negation of the former). Whether or not an individual MP, or Parliament as a legislature has the power act in a given way must depend on how that form of action impacts on individual rights. Only exceptionally, if ever, can the interests of the many override these rights. What concrete implications do these arguments of principle have for the questions raised in the Green Paper? To take the central question of the Paper, I do not think that MPs should enjoy blanket protection against any form of criminal or civil liability. Much is made in the Green Paper (and elsewhere) of the ‘chilling effect‘ on MPs of potential liability (para 100); but an MP’s licence to operate outside the law, I suggest, is a far more chilling prospect. A judgment must be made in each case on whether MPs have acted lawfully or not. For example, MPs should be free to debate hate speech, but not to engage in hate speech (see para 118-119). The criminal law concept of mens rea should apply in Parliament as everywhere else.

What, then is the role of courts. Should Parliament itself have the power to punish/prevent the infringement of individual rights through its contempt jurisdiction (and should Parliament have the power to determine the legality of its own enactments); or should courts have this power? The answer, I think, is clear for at least two reasons. First, Parliament cannot be a judge in its own cause about the legality of its Members’ conduct, or the legality of its own enactments. An independent branch of government must perform this role (can Chaytor be read as a British Marbury v Madison?) Secondly, specifically in relation to privilege, for Parliament itself to exercise coercive powers, and impose coercive penalties and punishments would surely fall foul of ECHR art 6 and its common law equivalent. If Parliament was once the ‘High Court’ of Parliament, that is manifestly no longer the case.

Stuart Lakin is a Lecturer in Law at the University of Reading

Suggested citation: S. Lakin ‘Parliamentary privilege, Parliamentary sovereignty, and Constitutional Principle’ UK Const. L. Blog (11^th February 2013) (available at http://ukconstitutionallaw.org)

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Tagged as Chaytor Case, parliamentary privilege, Parliamentary sovereignty

by Constitutional Law Group | January 10, 2013 · 2:23 pm

Varda Bondy and Maurice Sunkin: Judicial Review Reform: Who is afraid of judicial review? Debunking the myths of growth and abuse.

The Government claims that its proposals to restrict access to judicial review are based on evidence that growth in the use of judicial review has been fuelled by abuse of the system. It is suggested that judicial review has become an impediment to government policy and economic progress and that reform is needed ‘to tackle red tape, promote growth and stimulate economic recovery’. The government’s proposals are contained in a MoJ consultation paper published on 13 December 2012. The reforms are said to be ‘simple and proportionate’, and capable of being introduced ‘quickly’. The consultation closes on 24 January.

The following comments are based largely on empirical work undertaken by the University of Essex and the Public Law Project in a series of studies in recent years, including The Dynamics of Judicial Review Litigation: The Resolution of Public Law Challenges before final hearing; Bondy and Sunkin PLP 2009 (The Dynamics of JR report), and their current Nuffield funded research on the effect and value of judicial review (due to be published Summer 2013). This body of work has generated what is probably the most comprehensive independent information on the use and impact of judicial review in England and Wales in recent years.

This blog does not set out a detailed response to the consultation. Its aim is to question the evidence-base for the proposed reforms and to propose that if the government is genuinely concerned to relieve pressure on the courts and hard-pressed public bodies, these reforms are not the way to go and may well have the reverse effect. The Public Law Project will submit a full response to the consultation which will be available on its website.

Myth: there has been a significant increase in the number of JR challenges

We are told by the MoJ that, “There has been a significant growth in the use of JR to challenge the decisions of public bodies. In 1974, there were 160 applications for JR, by 1998 this had risen to over 4,500, and by 2011 had reached over 11,000.”.

Over the past few weeks these headline figures have attracted a good deal of attention and several points are now clear. The most important is that these figures alone provide a potentially grossly misleading impression of the degree to which government has been challenged in the courts.

First, comparisons with the use of JR as far back as 1974 are almost totally meaningless, not least because in the world before O’Reilly v Mackman [1983] 2 AC 237 claimants did not need to use JR in public law matters, and the number of challenges to the legality of government decisions brought by way of ordinary civil proceedings was (and remains) unknown. We simply do not know how often government was challenged in the courts before the 1980s in ordinary proceedings and we still don’t have data on this.

Second, the increase in the scale of JR litigation is substantially attributable to immigration and asylum cases. This is recognised by the government, and in any event this is not an expressly targeted area for this round of reforms. Immigration and asylum challenges have been the subject of numerous statutory and procedural changes in recent years. Most such challenges have already been transferred to the First-tier Tribunal (Immigration and Asylum Chamber), a move which is expected to reduce significantly the volume of JRs in the Administrative Court. Given these changes, it could be misleading to rely on data relating to immigration/asylum JRs in order to justify reforms to the JR system as a whole.

Third, and following on from the above point: it is now widely acknowledged that once immigration and asylum claims are placed to one side, there has been little change in the volume of JR claims over the last 10 years or so. Since the mid 1990s the volume of non-immigration/asylum JRs has remained fairly stable at just over the 2,000 per annum mark. This is evidenced also by the official statistics as is clearly shown in the Dixon and Hood graph. As Harlow and Rawlings remind us, these numbers are ‘infinitesimal’ when compared with the scale of government decision making (Harlow & Rawlings, Law and Administration, p 712).

No one knows how many public decisions are being made and we therefore cannot tell whether or not there has been a change (let alone any increase) in JR activity relative to the scale of government decision making over past decades. Nonetheless, it is clear that, beyond immigration and asylum, there has been no radical growth in the use of JR, and quite possibly no increase at all.

For many informed observers, it is not the growth in JR that is surprising and disconcerting. It is that beyond immigration, JR has not grown more, despite factors such as the enactment of the Human Rights Act 1998 and the general heightened profile of the law and courts.

Myth: JR is an impediment to economic growth

The government is concerned about the adverse impact of the use of JR on public finances and development projects. The consultation says that JR ’ … comes at a substantial cost to public finances, not just the effort of defending the legal proceedings, but also the additional costs incurred as a result of the delays to the services affected. In certain types of case, in particular those involving large planning developments or constructions where significant sums may be at stake, any delays can have an impact on the costs of the project’ (para 34).

It would be interesting to see what are the ‘substantial costs’ generated by JR litigation, or more specifically on allegedly frivolous JR litigation. As far as we are aware no comprehensive information on this is available. Even the much more straightforward question of determining how much JR activity directly or indirectly relates to economic activity is extremely difficult to answer on the basis of our current knowledge.

Certainly, in order to determine how much JR litigation is likely to be economically important we need to look behind the official statistics relied upon by the government because the official statistics do not provide detailed figures on the types of JR claims brought. Were we to look behind the official statistics to attempt to discern the number of ‘economically relevant’ claims we would almost certainly find (assuming we could identify them) that these claims constitute only a small proportion of the caseload.

Judicial review claims cover a wide variety of subject matter, including housing, education, community care, prisons, police, mental health, to name but a few. They are brought against a wide range of public authorities including central government departments, local authorities , courts, PCTs, the police, many different prisons, the GMC, ombudsman and so on. A high proportion of claims concern local authority services and are likely to have been brought by disadvantaged and vulnerable claimants. Given the range of issues litigated, it is not surprising that relatively small numbers of claims concern particular types of issue or affect particular types of public body.

Very few public authorities are challenged more than a handful of times a year. Research on JR litigation against local authorities over the six years 2000-2005 inclusive, for instance, showed that over that period 85 per cent of local authorities attracted no more than one or two challenges per annum (Maurice Sunkin et al Mapping the use of Judicial Review to Challenge Local Authorities in England and Wales (2007) Public Law, 545, 550). Moreover, over half of the challenges to local authority decisions concerned housing related issues, including homelessness, (a factor highlighting the importance of JR to the most disadvantaged).

Aside from local authorities, the main other targets of JR are the Secretary of State for Justice, the Secretary of State for the Home Department, the Parole Board and Prison Governors. Few other central government departments are challenged more than rarely.

Planning JRs are specifically referred to by the government as being of concern, having potential adverse effects on economic development. A recent parliamentary question revealed that between 1 January and 31 November 2012 there were 169 applications related to planning.

The above figures relate to claims for permission. However, given that one of the main concerns of the government is delay, the cases most worrying are likely to be those that go to final hearing rather than those that proceed no further than the permission stage. In our current study of JR we concentrate on this class of case. Having recorded all reported final JRs for 2011 we found 30 planning JRs that went to final hearing, of which only six were brought against central government. Some of these may have had economic ramifications, but this small number hardly justifies restricting access to JR across the board.

Other planning matters will have been litigated by way of the specialised planning appeal system, but these are not JR claims and reform of the JR process would not directly affect these. Moreover, reforms designed to reduce the number of ‘hopeless‘ claims is unlikely to have much effect on the quantitatively few (but qualitatively important) planning matters that will still end up in the Administrative Court.

These data altogether do not paint a picture of a government being overwhelmed by JRs, nor do they support a credible claim that JR presents a significant impediment to economic progress.

Myth: there is widespread abuse of the JR process

The consultation document says that ‘… the Judicial Review process may in some cases be subject to abuses, for example, used as a delaying tactic’ (para 2).

That some abuse occurs is widely acknowledged and the judiciary is alive to its risks and have been astute in developing techniques – especially the use of costs orders – to penalise abuse where it occurs (see e.g. R(on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin)).

What is the evidence that abuse is widespread and justifies reforms to the process? The government finds the evidence in the judicial statistics, which apparently show that while there has been ‘significant growth’ in the use of JR only a ‘small proportion of cases … stand any reasonable prospect of success’. ‘In the majority of applications considered by the courts, permission to bring Judicial Review proceedings is refused. Of the 7,600 applications for permission considered by the Court in 2011, only around one in six (or 1,200) was granted. Of the applications which were granted permission, 300 were granted following an oral renewal (out of around 2,000 renewed applications that year)’ (para 31). The inference is that five sixths of claimants abuse the process by knowingly bringing unmeritorious claims. The government draws this inference by looking at the 7,600 claims of all categories that were considered by a judge for permission, of which ‘only’ 1,200 were granted permission. However, as explained below, the official statistics provide a very dubious basis for drawing the inference that only one sixth of claims for JR have merit.

The official statistics provide a snapshot of the caseload in a year and the number of permission decisions made in the year. The decisions made in any one year do not necessarily relate to the claims brought in that year, but may relate to claims brought in a previous year. Additionally, the Court periodically adopts a strategy of clearing backlogs in certain types of case, which can artificially inflate the statistics regarding numbers of decisions. So, for example, in 2001 the Official Statistics showed there to be more permission decisions recorded than there were claims filed.

Thus we cannot use the official statistics as anything more than a very rough and ready way of determining how claims in particular years fare. For an analysis and explanation of trends in the permission grant and failure rates since the mid 1990s see, Bondy and Sunkin, ‘Accessing Judicial Review (2008) Public Law 647.

The official statistics have a number of other limitations as well.

For instance, the government’s analysis leaves out of the equation the 3,600 JRs that seem to have disappeared between being issued and the permission stage (11,200 less 7,600). The disappeared cases are significant and we simply can’t tell from the official figures what happened in relation to these claims, which appear to make up 32 per cent of the 11,200 issued claims.

As it happens this proportion is consistent with the research Dynamics of Judicial Review findings showing that 34 per cent of JR claims are withdrawn after being issued but prior to being considered by a judge for permission. We found that they are usually withdrawn following a settlement in favour of the claimant. That figure is worth holding on to and we shall return to it in a moment.

The official statistics are divided into three categories: immigration/asylum, criminal and other i.e. civil JRs excluding immigration/asylum. As neither immigration/asylum, nor criminal JRs are at issue here, let’s examine the figures for civil JRs which include all other categories such as housing, education, community care, planning etc. The statistics tell us that in 2011 2,036 civil JRs cases were considered for permission of which 1,509 (74%) were refused and 527 (26%) were granted. This is a permission success rate of more than one in four and not one in six as presented in the consultation document

Now let’s go back to the cases that settled prior to permission. Success and failure cannot be measured solely by examining permission decisions. We have just mentioned that over a third of claims are likely to be settled prior to permission, usually in the claimant’s favour. When this is factored into an assessment of outcomes, the actual success rate of claims becomes significantly higher than one in four. In short, the one in six success rate at the permission stage is misleading and significantly exaggerates the actual failure rate of claims.

In fact, the success rate may be significantly higher. When we look, for instance, at the success rate of permission claims that are dealt with at oral hearings in open court as opposed to by a judge on the papers alone, we find that over twice as many oral claims are granted permission as are paper claims. In our sample of cases for the Dynamics of Judicial Review report, the success rate of oral only permissions was 62 per cent.

Is there any other evidence of abuse? When we examined the comments made by judges refusing permission we found that it was relatively unusual for judges to state that claims had been refused because they were hopeless or totally without merit. In our research we found, for instance, that in 104 civil claims (excluding immigration and asylum) where judges gave observations, only 12 cases were said to be hopeless or without merit or perverse. One such case was successfully renewed by a litigant in person and went on to succeed at the final hearing (Leyton v Wigan CC (Co 7428)).

In short, our analysis suggests that the government is overestimating the failure rate at the permission stage, especially in civil JRs, and is overestimating the degree to which the system is being abused by claims that lack merit. Where abuse occurs it is strongly arguable that effective mechanisms already exist and that general reforms restricting the use of JR is unnecessary.

Time limits

A key element in the government’s strategy is the proposed reduction in the time limit for seeking JR, at least in some claims. It is easy to see why reducing time limits might appear an attractive and superficially easy option for the government. The current obligation to bring a claim ‘promptly and in any case within three months’ is already very tight, especially when contrasted with general limitation periods. However, it is longer than the six weeks limit for bringing statutory appeals in planning cases. The real question for the moment is whether shortening the JR limitation period will help or hinder the government’s aim of eliminating abuse and saving cost and time.

One of the lessons of our research is that procedural changes can affect the dynamics of litigation in ways that are not always obvious or predictable. Another is that the judicial review process needs to be understood holistically and changes to one aspect will affect other elements of the process. There are, for instance, sound reasons for fearing that shortening the time period for claims may both increase the proportion of weak claims and impose additional costs on public authorities. We have already noted that over a third of claims filed settle prior to permission, usually in the claimant’s favour. Our research shows that this usually occurs after the defendant concedes the substance of the claim having been prompted to reassess the claim once the proceedings are commenced and an Acknowledgment of Service has to be filed. At this point lawyers often become more centrally engaged in the matter. Many solicitors acting for claimants and for defendants told us that had more time been available for negotiation their case may have been settled out of court, but proceedings had to be issued in order to meet the time limit. Shorter time limits are likely to increase pressure on claimants to file and reduce space for settlement. As well as potentially increasing the possibility of weak and premature claims, shortened time limits may also increase the burden on public authorities who will be obliged to respond to more premature claims. This would not be in the interests of either claimants or public authorities. It would certainly be unfortunate if reforms here were to reduce opportunity for informed settlement and there is a strong argument that more attention should be given for increasing incentives upon public authorities to look again at disputed decisions with a view to securing settlement out of court.

So to conclude

Other claims made in the consultation may be disputed in the light of the evidence, including the implication that the overall impact of JR on public decision making is negative.

On this, the existing evidence is very patchy. The issue was recently considered by the Law Commission (see Administrative Redress: Public Bodies and the Citizen, May 2010, HC 6, esp Part 1V). While some work suggests that the threat of legal challenge may lead to defensive behaviour, there is also evidence that judicial review litigation may act as a driver to improve public services and the quality of government. See especially, L. Platt, M Sunkin and K Calvo, ‘Judicial Review as an incentive to change in local authorities in England and Wales’ (2010) Journal of Public Administration Research and Theory 20:i243-i260 .

Here, we have high-lighted some of the weaknesses in the government’s evidence base in relation to the scale of litigation and abuse. Reforming the process is a major step that may have unintended consequences that could increase burdens on public bodies and the courts without achieving the ends that the government hopes. Restrictions on access may also have a disproportionate adverse affect on claimants (often the most vulnerable) with genuine legal disputes with public bodies especially in relation to public service provision. The weakness of the evidence base for these reforms is startling and worrying and we can only hope that the government will take the consultation responses seriously and think again before introducing reforms that will undermine the integrity of the JR process without achieving the government’s desired aims.

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, ‘Judicial Review Reform: Who is afraid of judicial review? Debunking the myths of growth and abuse.’ UK Const. L. Blog (10th January 2013) (available at http://ukconstitutionallaw.org)

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Tagged as Judicial Review, Ministry of Justice Consultation on Judicial Review, Reforming Judicial Review

by Constitutional Law Group | December 16, 2012 · 3:46 pm

Mark Elliott: Judicial review – why the Ministry of Justice doesn’t get it

mark1 Following the Prime Minister’s declaration of “war” on judicial review last month, the Ministry of Justice has now published a consultation paper in which it sets out, and invites comments on, specific proposals concerning the judicial review process. They include reducing the time limit for seeking judicial review in certain circumstances. In planning cases, the limit would come down to six weeks, and in procurement cases to 30 days. The Government also proposes to reduce the scope for renewing applications for permission to seek judicial review following an initial refusal. In particular, such renewal applications would not be permitted by way of an oral hearing in cases where “substantially the same matter” had already been the subject of a hearing before a judge or where, on the papers, a judge had ruled the claim to be “totally without merit”. Court fees would also go up. Applying for judicial review would cost £235 instead of £60 (as at present), and a new fee (of £215-£235) would apply to oral renewals.

These ostensibly dry proposals do not appear to amount to a “war” on judicial review, not least because there is no attempt to immunize any categories of Government decisions against all judicial scrutiny. But this does not mean that the proposals are trivial. Shorter time limits will undoubtedly make it harder for some challenges to be made, given the time needed to put together some applications. Meanwhile, reducing the scope for challenging initial refusals of permission to seek judicial review arguably assumes that the initial stage is more robust than it actually is. In fact, empirical research by Bondy and Sunkin shows that it is something of a lottery, with significant variation between individual judges’ inclination to grant permission. And while, in the general scheme of things, £235 may not be a huge amount of money (given the other costs often associated with litigation), there is something rather troubling about increasing court fees in order to make access to the courts more difficult – which is arguably the purpose here.

These aspects of the proposals are considered in more detail by Adam Wagner in a thoughtful piece published on the UK Human Rights Blog. In this post, however, I wish to focus more on the “mood music” associated with the MoJ’s consultation, and will suggest that it inadequately reflects – indeed, distorts – the constitutional significance and role of judicial review.

“Pyrrhic victories”

Part of the Government’s case for making judicial review more difficult is that, compared with a few years ago, far more claimants are now seeking to bring judicial review applications: a phenomenon which, the argument goes, has undesirable implications both for judicial resources and public administration. Much is therefore made of the fact that only a small proportion of applications for permission to seek judicial review are granted; that fewer than half of cases that proceed to a substantive hearing are decided in favour of claimants; and that even those claimants who are successful may win only “pyrrhic victories” – all of which supposedly demonstrates that the judicial review process is, for the most part, an unwelcome and unnecessary distraction from the business of governing.

This argument can be contested in a variety of ways, but here I concentrate on one particular aspect of it – namely, the dismissal of some (perhaps many) successful judicial review claims as merely pyrrhic victories, “with the matter referred back to the decision-making body for further consideration in light of the Court’s judgment”. Given the context (described above) of this claim in the consultation paper, its import is presumably that pyrrhic victories are pointless ones, because the decision-maker might ultimately make the same decision again. But to make such an argument is to miss the point in spectacular fashion.

It is undeniably the case that success on a number – but by no means all – of the judicial review grounds will result in the matter being referred back to the decision-maker in the way described in the consultation paper. But such victories are far from unimportant. Viewed in instrumental terms, it is impossible to know in advance whether any given judicial review victory will be pyrrhic – in the sense of failing to prevent the unwanted substantive decision from being retaken – or not. If, for instance, a court rules that the decision was flawed because a legally irrelevant consideration was taken into account or an improper purpose pursued, the new decision – taken only on the basis of relevant considerations and for statutorily authorized purposes – may or may not differ.

But even this instrumental analysis misses the point – or at least fails to capture the whole of it. For judicial review is about far more than merely helping some claimants to get the decision they want. In normative terms, it discharges a constitutionally imperative function by enabling the Government to be held to rule-of-law based standards of good administration and due process. Viewed in this way, there is no such thing as a pyrrhic judicial review victory: every victory – whatever the eventual outcome for the individual – is a victory for the rule of law.

The “negative effect” of judicial review on decision-makers

The consultation paper contains a second, equally surprising assertion. According to paragraph 35:

“It is not just the immediate impact of Judicial Review that is a concern. We also believe that the threat of Judicial Review has an unduly negative effect on decision makers. There is some concern that the fear of Judicial Review is leading public authorities to be overly cautious in the way they make decisions, making them too concerned about minimising, or eliminating, the risk of a legal challenge.”

As well as noting the highly impressionistic nature of this assertion – should not Government policy be based upon more than “belief” and unsubstantiated “concern”? – three specific points may be made in response to it.

First, the argument, even if taken at face value and assessed on its own terms, is lamentably weak. It reduces to the contention that public authorities should be shielded from judicial review to a greater extent than they are at present because of their tendency – if exposed to judicial review – to do things that the law does not actually require of them. The solution to this problem – if it exists – is so obvious as not to require elaboration.

Second, it could just as easily – and, arguably, more convincingly – be contended that the threat – or, putting the matter less pejoratively, possibility – of judicial review may have a positive effect on decision-makers. This point can be made in relation to specific individual cases, an obvious and notable recent example being supplied by the collapse of the Government’s decision to award the West Coast rail franchise to First Group. It is clear that that decision – which had been robustly defended by Ministers – may well have stood had judicial review not been in prospect.

Third, the foregoing argument can be applied in a broader sense. Not only may the prospect of judicial review impact upon particular decisions; it may also influence the approach to decision-making within Government more generally. Looked at in this way, the principles of good administration enforced via judicial review constitute a template of best practice – and one that is taken seriously thanks to its legal enforceability. This is reflected, for instance, in the former Cabinet Secretary’s foreword to the 2006 edition of The Judge Over Your Shoulder, who commended it “as a key source of guidance for improving policy development and decision-making in the public service”. This point cannot be pressed too far. It is, for instance, well-known that public authorities are not particularly good at internalizing judicial decisions within their front-line decision-making processes; but this is hardly a reason for attempting to shield public bodies from judicial review.

Judicial review as an unwelcome irritant

In one sense, the consultation paper says the “right” things about judicial review. It is, for instance, acknowledged to be a “critical check on the power of the State”; and the intention behind the reforms “is not to deny, or restrict, access to justice, but to provide for a more balanced and proportionate approach”. (“Proportionate to what exactly?” one wonders.) But underlying the consultation paper is a mindset that postulates judicial review proceedings as an unwelcome irritant. For instance, it is said (without the provision of any examples) that:

“[They] create delays and add to the costs of public services, in some cases stifling innovation and frustrating much needed reforms, including those aimed at stimulating growth and promoting economic recovery.”

Similarly, in his media statement accompanying the publication of the consultation paper, Chris Grayling, the Lord Chancellor and Secretary of State for Justice, said:

“We have seen a huge surge in Judicial Review cases in recent years. The system is becoming mired in large numbers of applications, many of which are weak or ill-founded, and they are taking up large amounts of judicial time, costing the court system money and can be hugely frustrating for the bodies involved in them.”

This reflects sentiments expressed by the Prime Minister in his speech to the CBI in November. Judicial review, like other trappings of the administrative state such as consultations, audits and compliance with EU procurement rules, was cited as a factor that makes the Government “far too slow at getting stuff done”. Being distracted by such matters was not what had made the UK “one of the most powerful, prosperous nations on earth”. And so part of the solution, said Cameron, was to cut back on judicial reviews, “many of which are completely pointless”, thereby “getting a grip” on this “massive growth industry”.

Whatever lip service is paid to the constitutional importance of judicial review in the consultation paper, the mood music is pretty clear. Judicial review is not a Good Thing. Of course, it is hardly surprising that politicians are not fond of judicial review, given that they are among those on the receiving end of such proceedings (not, of course, that this should really bother them that much if many cases are “completely pointless” and victories merely “pyrrhic”). In that sense, the fact that the Government has brought forward these proposals against the backdrop of antagonism towards the courts’ judicial review powers has a certain “Dog Bites Man” quality to it.

Judicial review in its broader constitutional setting

But this surface observation masks a deeper point about the nature of the constitution and judicial review’s place within it. If Parliament is sovereign, then there is clearly no legal inhibition upon its clipping the courts’ wings – whether in the relatively modest ways proposed in the consultation paper, or more profoundly via (for instance) the use of statutory ouster provisions. And there is equally nothing that legally prevents the Executive – its obvious vested interest notwithstanding – from pressing Parliament to enact such legislation. On this view, then, judicial review is fair game, and there is nothing improper – at least in a legal sense – if the political branches modify or curb the High Court’s supervisory jurisdiction.

However, as I have argued elsewhere, the UK’s unusual – including unwritten – constitutional arrangements are defensible and sustainable only for as long as the three branches of Government exhibit appropriate respect towards one another. This requires, among other things, that Parliament and the Executive acknowledge and accept that a key part of the courts’ constitutional role involves securing Government according to law. Indeed, it is increasingly clear that for at least some senior judges – consider, for instance, the by now well-known dicta in Jackson – the absence of such respect for the courts might trigger a wider breakdown in institutional comity.

It is difficult, if not impossible, to predict what would happen were such circumstances to eventuate, precisely because the unwritten constitution is animated and sustained by a fundamental uncertainty, or mystery, about the relationship between different loci of power. It would, for instance, be going too far baldly to argue that judicial review is a constitutional fundamental such that Parliament is not sovereign – just as it would be going too far to assume blithely that the courts’ powers of judicial review are as constitutionally precarious as an orthodox application of the doctrine of parliamentary sovereignty would suggest. What can, however, be said with relative confidence is that acceptance by the political branches of the courts’ judicial review powers is a crucial component of the implicit institutional comity upon which the British constitution – in the absence of an explicit, formalized constitutional settlement – depends.

The Ministry of Justice’s proposals fall well short of a full-frontal attack upon judicial review, and as such they do not fundamentally threaten that comity. But they reflect both an underlying antagonism towards judicial review and an assumption that the courts’ powers in this area exist only on the terms and to the extent that the other branches are prepared to tolerate them. That assumption is a misplaced one, which exhibits inadequate sensitivity to the delicate, if unarticulated, nature of the UK’s constitutional settlement.

Mark Elliott is Reader in Public Law at the Faculty of Law, University of Cambridge.

Suggested citation: M. Elliott, ‘Judicial review – why the Ministry of Justice doesn’t get it’ UK Const. L. Blog (16th December 2012) (available at http://ukconstitutionallaw.org

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Tagged as Judicial Review

by Constitutional Law Group | October 4, 2012 · 8:41 am

Robert Thomas: The New Immigration Rules and the Right to Family life

In June 2012, Theresa May, the Home Secretary, laid a new statement of changes in immigration rules before Parliament. There is nothing necessarily extraordinary in that; the immigration rules set out the criteria governing the entry into and removal from the UK of foreign nationals and they are frequently amended – as a previous blog by Carol Harlow has noted – to reflect changes in immigration policy.

However, there is something quite distinctive and significant about the June 2012 rules – HC 194 – namely, they seek to prescribe how judicial bodies are to interpret and apply the right to family life under Article 8 ECHR in immigration cases. The government’s aim is, essentially, to reduce the scope for foreign nationals to avoid removal from the UK on the basis that this would breach their right to family life. The machinery for administering immigration policy has been repeatedly been criticised for not being fit for purpose and also for allowing foreign nationals without any right to remain in the UK under ordinary immigration categories to use Article 8. One particularly high-profile issue has been the use of Article 8 by foreign national prisoners, which has been highlighted by the Daily Telegraph in its “End the Human Rights Farce” campaign. Furthermore, the Coalition Government’s general policy is to reduce inward migration.

The new immigration rules raise a number of issues: (i) what exactly is being proposed and how? (ii) what Parliamentary process has been used? and (iii) how might the courts respond to the new rules?

What is being done and how?

Article 8 is a qualified right and any interference is permissible only so long as it is proportionate and justifiable. In the immigration context, Article 8 has assumed a distinctive role as it is frequently relied upon by foreign nationals who challenge their removal. These challenges have generated an enormous volume of case-law on the legal test to be applied as regards the balance to be struck between family life on the one hand and immigration policy on the other. But, to summarise, the key issue is this: should the courts accept that in most cases the balance between family life and immigration control has been laid down in the Immigration Rules – or should decision-makers themselves determine in each individual case where the proportionate balance lies?

In Huang, the Court of Appeal held that the Immigration Rules represented the appropriate balance between public policy and private right: individuals who did not qualify under the ordinary immigration rules would only succeed under Article 8 grounds if their case was truly exceptional. However, when the same case went to the House of Lords, it held that there was no test of exceptionality: the ultimate question is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. There was, the House of Lords held, no reason to defer to the Immigration Rules which “are not the product of active debate in Parliament, where non-nationals seeking leave to enter or remain are not in any event represented.”

Following Huang, then, it was for the decision-maker – whether initially a caseworker at the UK Border Agency, an immigration judge on appeal, or a court judge by way of further appeal – to make her own assessment as to whether or not removal would breach an individual’s right to family and private life. This test has been accepted and applied since 2007. However, the loss of control here has evidently been too much for the Coalition Government to bear – especially when under acute media and political pressure to respond to public concern – real or otherwise – on immigration.

The rationale for the new rules, therefore, commences by way of critique. According to the Home Office, the Huang approach has resulted in unpredictable and inconsistent decision-making which are anathema to good administration (seasoned observers of the behaviour, action, and inaction of the UK Border Agency and its predecessors may relish the irony here: see, for instance, a special report of the Parliamentary Ombudsmen and multiple reports by the House of Commons Home Affairs Committee on the UKBA’s handling of immigration applications). It has also meant that the courts do not defer to Parliament’s or the Government’s view of where the appropriate balance lies between family life and immigration control. Consequently, the solution – so the Government says – is to introduce new Immigration Rules to do two things: (i) to specify where the balance is to lie, that is, adopt a rules-based approach to proportionality; and (ii) to do so in a way which ensures that the new Rules have democratic legitimacy and should therefore only be subject to a light-touch judicial review.

How do the new Rules attempt to do this? By specifying the criteria to be applied in family life cases. For instance, in foreign national prisoner deportation cases, the new rules state that family or private life (including the best interests of any child, even though always a primary consideration) will not outweigh the public interest in seeing the person deported where they have received a custodial sentence of at least 4 years unless there are exceptional circumstances. This rule allows little scope for a Huang-style general balancing exercise; the main issue under the new rule is whether or not there are “exceptional circumstances”, ie a return to the position reached by the Court of Appeal in Huang.

For those foreign national prisoners with a custodial sentence of between one and four years, the new rules introduce different requirements. Deportation will be proportionate unless they have a genuine and subsisting relationship with a partner in the UK and they have lived in the UK with valid leave continuously for at least the last 15 years and there are insurmountable obstacles to family life with that partner continuing overseas; or they have a genuine and subsisting parental relationship with a British citizen child, or a foreign national child who has lived in the UK continuously for at least the last seven years immediately and it would be unreasonable to expect the child to leave the UK and there is no other family member who is able to care for the child in the UK. Alternatively, they might have lived continuously in the UK for at least the last 20 years and they have no ties (including social, cultural or family) with their home country; or they are under 25 years, have spent at least half of their life living continuously in the UK and have no ties or there are exceptional circumstances.

There are similarly complex and lengthy rules concerning the tests to be applied to other categories of person other than foreign national prisoners, such as cases concerning children and those individuals who seek to remain by virtue of their long residence in the UK. Putting the detailed rules to one side, thee general thrust is to limit and confine discretion and for the Government to give a clear policy steer to the courts as to how they should interpret Article 8. What the Government intends is for the focus of the courts to shift away from assessing the proportionality in each individual case to assessing the proportionality of the Rules themselves. As the rule embody the proportionality assessment at a general level, it is not necessary – the Home Office says – to re-determine it in every individual case.

What Parliamentary process has been used?

A key aspect of the Government’s plan has been to circumvent the concern expressed by the House of Lords in Huang – that the Immigration Rules are not the product of active debate in Parliament. The new rules were debated and approved by the House of Commons.

Or were they? What actually happened on 19 June 2012 is that the Commons debated and approved a Government motion that Article 8 is a qualified right and that the criteria governing immigration are laid down in the Immigration Rules. So much is obvious to anyone with a passing acquaintance with the issues. However, some MPs at the time and, later the House of Lords Scrutiny of Secondary Legislation Committee, queried the relevance and consequences of the June debate. The Home Office’s inconsistent use of the term “Immigration Rules” caused considerable confusion throughout the Commons’ debate. One MP, for example, asked which Rules they were being asked to endorse – the ones current on 19 June or the new version of the rules as amended by HC 194 which would come into effect on 9 July 2012 (HC Deb col 806)).

The Scrutiny Committee has doubted whether procedurally the debate delivered a sufficiently clear endorsement of the wider policy to assist the courts. Although it was the Home Office’s firm intention to provide the courts with a clear policy steer on the weight to be given to Article 8 of ECHR in relation to the Immigration Rules, it was equivocal about the procedural approach for delivering it. According to the Scrutiny Committee, while the Home Secretary’s intention is clear, questions remain about whether the Government’s approach can deliver it: the Home Office provided no evidence to support its view that the procedural approach it proposes will lead the courts to react in the way the Home Office anticipates.

Putting the formal motion to one side, the purpose of the June debate was all about sending a clear message to the courts: apply the new rules or else risk defying the Government. As Theresa May stated:

“the immigration rules will no longer be a mere starting point, with leave granted outside the rules or appeals allowed under article 8 for those who do not meet them. The immigration rules will instead take into account article 8, relevant case law and appropriate evidence and they will be proposed by the Executive and approved by the legislature. Of course, the courts have a clear constitutional role in reviewing the proportionality of measures passed by Parliament, but now the focus of the courts should be on considering the proportionality of the rules rather than the proportionality of every individual application determined in accordance with the rules. Where the courts consider individual deportation decisions, it should now be with consideration of Parliament’s public policy intent firmly in mind.” (col 763)

The Government would no doubt have been confident that it would face few problems in the Commons on the substantive issue of confining family life for, amongst others, foreign national prisoners: only a few brave MPs would take issue with that. The Labour party’s line was that the message being sent to the courts was not strong enough because the policy was only being introduced through the Immigration Rules and not through primary legislation (col 774).

How, then, might the courts respond?

It is clear that the new rules will, before long, be challenged in the courts. This might initially take a little while. A case may first be determined by the Upper Tribunal (Immigration and Asylum Chamber), then by the Court of Appeal, the Supreme Court, and perhaps ultimately Strasbourg. The Home Office, though, seems ready for it. Along with the new rules, it published a detailed statement of ECHR compatibility which, unsurprisingly, concluded that the new rules are compatible with Article 8 ECHR.

What then of the courts? Since Huang, the Supreme Court has, in a number of cases, emphasized that the fact-sensitive and judgmental nature of the proportionality assessment in immigration cases cannot be constrained by rules. In EB (Kosovo), Lord Bingham stated:

“the … [tribunal] … must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires.”

In another Article 8 case decided at the same time as EB (Kosovo) – Chikwamba – Lord Scott put it more succinctly:

“policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not.”

The problem with the new rules is that there will always be cases that fall on the wrong side of the rigid requirements laid down, but which a court or tribunal may nonetheless conclude deserve to be allowed because of the strength of countervailing factors. It is generally recognised in administrative law that when the decision task at hand is particularly important – when the error costs of incorrect decisions are particularly high – then flexibility and discretion are to be preferred to rigid rules which are over-inclusive. Also, a flexible standard as applied by a court or tribunal enables affected individuals to participate directly in the decision-making process. But, these factors have to be weighed against political forces pushing in the opposite direction.

There are a number of options for the courts. First, the courts could simply accept the new rules and apply them by recognising them as the Government’s clear wish as approved by the House of Commons. This supine posture, however, seems unlikely. The Immigration Rules are subordinate legislation and not in any way immune from judicial scrutiny. Even if the courts recognise the need for some deference, the importance of Article 8 is a major countervailing force. As the House of Lords noted in Huang:

“Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.”

Secondly, the courts could go the other extreme and strike down the relevant immigration rules as incompatible with Article 8 as interpreted by the House of Lords in Huang. This is possible – if, for instance, the courts find that the rules so restrict the proportionality assessment that they do not comprise a valid interpretation of the case-law. Judicial invalidation of the Immigration Rules is rare, but not unknown. A determined Government could in response do two things: (i) change the rules on each occasion to accommodate the flexibility required by the courts; or (ii) introduce primary legislation, but that would take up valuable legislative time.

Thirdly, the courts could take a middle path by interpreting the Rules against the general background of the Human Rights Act and hold that the new rules do not absolve the courts from applying Article 8 under the HRA. After all, what is the legal status of formal secondary rules which seek to lay down the executive’s interpretation as to how independent courts ought to assess the proportionality of decisions that infringe a qualified ECHR right? The courts could conclude that, in the human rights context, the rules are to be treated as more akin to administrative guidance – a set of relevant considerations no doubt, but not formally binding because of overarching ECHR standards.

The scene is, then, set for a showdown – sometime in 2013-14 I would guess. It is almost as if the Government has drawn a line in the sand and has now dared the courts to cross it. Picking an argument with the courts has, of course, long been the stock-in-trade of Home Secretaries when the normally hard-grind of government gets even tougher; former Home Secretaries such as Michael Howard and David Blunkett both had their run-ins with the courts. A cynical observer might suggest that lying beneath all the formal surface issues of the rules, Parliamentary procedure, case-law, and so on, the Government has been in search of a future blame-avoidance strategy. If the courts accept the rules, then fine, but they are rejected, then the Government can always throw any political come-back into the courts’ direction. As Baroness Hale noted in Walumba Lumba, “[t]hese are just the sort of circumstances, where both Ministers and their civil servants are under pressure to do what they may know to be wrong, in which the courts must be vigilant to ensure that their decisions are taken in accordance with the law. To borrow from the civil servants’ correspondence, the courts must be prepared to take the hit even if they are not.”

Robert Thomas is Professor of Public Law at the School of Law, University of Manchester

Suggested citation: R. Thomas, ‘The New Immigration Rules and the Right to Family Life’ UK Const. L. Blog (4th October 2012) (available at http://ukconstitutionallaw.org

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Tagged as Courts and Parliament, Huang, Human Rights Act, Immigration Rules, Parliament, proportionality review

by UKCLG blog editors | September 15, 2012 · 8:20 am

Carol Harlow: How not to do things with rules

For many years now, administrative lawyers have been puzzling over the relationship of rules and discretion. When is a rule a rule? Does the term properly cover ‘quasi-legislation’ or what is now generally called ‘soft law’? In his seminal study, Discretionary Justice (Urbana, Louisiana State University Press, 1969), KC Davis argued that rules of this type should be used to structure and confine administrative discretion. The consequence would be greater transparency; light would be cast on some ‘dark and windowless areas of administrative law’. The managerial style of public administration since the 1980s has taken the technique very much further. Public administration is now dominated by various forms of rule, a development hastened by the greater use of ICT by government departments. Policy statements, government papers, guidance and other information is now widely accessible on government websites and what is not openly published is often made available through requests made under the Freedom of Information Act 2000.

Generally benign, these developments have brought their own problems to which the over-burdened and generally unloved immigration service has been particularly prone. It is not so long since a previous Home Secretary declared his department ‘unfit for purpose’ and immigration case law regularly reveals scenes of great confusion, with policy changes introduced so rapidly that even officials cannot keep up (see eg R (Rashid) v Home Secretary [2005] EWCA Civ 744). The recent Supreme Court case of R (Munir and Rahman) v Home Secretary [2012] UKSC 32 casts further light – if this were needed – on the somewhat arbitrary way in which ministers of all political persuasions tinker with immigration policy. In 1996, the Home Office issued a Policy Document (DP 5/96) on deportation policy in cases involving children born in the UK and resident for seven or more years (the so-called 7-year concession). In practice, concession effectively glossed a later policy document contained in departmental ‘Instructions’ (the ‘Long Residence Concession’) which made no mention of the 7-year concession. In 1999, the Home Office ‘modified’ DP5/96 in a ministerial statement that significantly stated (i) that each case must be considered on its merits subject to a ‘general presumption’ that the 7-year concession would be observed; and (ii) that ‘certain factors’ should be considered as ‘relevant to reaching a judgment’ in such cases. In 2003, the Long Residence Concession was modified in a Statement of Changes to the Immigration Rules duly laid before Parliament (HC 538, 2003), which actually made no direct mention of the concession – never formally withdrawn, though it was at some point apparently taken off the departmental website. Suddenly, in 2008, however, the Minister for Borders and Immigration in a written parliamentary statement withdrew DP 5/96. M and R, who had hoped to benefit from the 7-year concession, challenged the withdrawal by judicial review, arguing that it was irrational and unfair and also invalid because the proper parliamentary procedure had not been followed.

Before setting out the argument in greater detail, it is necessary to feed in a second case decided by the same court (Lords Hope, Walker, Clarke, Dyson and Wilson JJSC) on the same day. R (Alvi) v Home Secretary [2012] UKSC 33 concerned the points-based system of entry for non-EEA nationals who wish to work in the United Kingdom, introduced in 2008 by a Statement of Changes in Immigration Rules duly laid before Parliament (HC 1113, 2008). So far, so good. But HC 1113 made reference both to a resident labour test as defined in ‘guidance’ published by the United Kingdom Border Agency (UKBA) and to a ‘list of skilled occupations’ to be maintained by UKBA. A, who had entered lawfully as a student but stayed on illegally, was in 2009 refused leave to remain on the ground that his job was not so listed and that his salary fell below the stipulated requirement for the policy. A challenged this decision on the ground that the list was contained in ‘Occupational Codes of Practice’ published only on the departmental website; it had never been laid, as it should have been, before Parliament.

These cases raised several tricky questions concerning the nature and quality of ‘bureaucratic rules’. The status of the Immigration Rules has always been a puzzle. They derive from the Immigration Act 1971, which for the first time imposed statutory controls on Commonwealth citizens. Section 3(2) provides that the Home Secretary

shall from time to time… lay before Parliament statements of the rules or any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter…

In both our cases Statements of Changes had been made and laid and their validity was not in issue. The question was whether policy changes introduced through informal rule-making were valid, or if they too ought to have been laid. Taken together the two cases raised three central questions:

What is the legal status of the Immigration Rules?
Can the Rules be changed or modified by ‘soft law’?
Is it open to the Home Secretary fall back on the prerogative powers?

The prerogative power

This question got a brusque reception! The only mention of prerogative in the 1971 Act was a saving clause (s 33(5)), which provided that the Act should not be taken to ‘supersede or impair’ the prerogative as applicable to aliens. Unanimously, in a single judgment delivered by Lord Dyson, the Supreme Court ruled (i) that the prerogative powers had never extended to Commonwealth citizens and (ii) that Parliament had in any event intended the 1971 Act to be the sole source of powers to regulate immigration (Munir at [23]-[26]). This simple application of the principle in De Keyser’s case (A-G v De Keyser’s Royal Hotels [1920] AC 508) will come as no surprise to constitutional lawyers, who have watched the courts in recent years ‘structure and confine’ the ultimate discretion of the royal prerogative almost out of existence. It is only in exceptional cases, involving defence and security or foreign affairs – as in the recent case of the unfortunate Chagos Islanders, expelled from the islands by an Order in Council made under the prerogative – that an argument based on prerogative powers will receive a sympathetic hearing – and even then the courts are hard to persuade (see, eg, the judgment of the High Court in R (Bancoult) v Foreign Secretary [2006] EWHC 1038, overruled by the House of Lords at [2008] UKHL 61). In our rule-based administration, such arguments will become increasingly rare.

The Immigration Rules (IRR)

If the power to make the IRR derives from statute, then the Immigration Act was in more ways than one ambiguous. It contained no specific grant of power to make regulations, and the Supreme Court was driven to imply one from a reference in a Schedule to ‘Instructions’. Both a power, exercisable in terms of s 3(2), and a duty to make regulations, vested in the Secretary of State, was however confirmed (Munir at [27]). Lord Dyson went on to dispose shortly of the thorny question of the legal status of the IRR: these were not, as the House of Lords had opined in MO (Nigeria) v Home Secretary [2009] ULHL 25, an executive statement of policy; they were subordinate legislation made under the authority of the 1971 Act. The IRR were in short ‘hard law’ that had to be laid before Parliament. This decisive ruling should end the uncertainty and unease registered by Sedley LJ in Pankina v Home Secretary [2010] EWCA Civ 719 at ‘rules being elevated to a status akin to law’.

Changes of policy

The ground was now cleared for the crunch question: when was a rule a ‘statement of practice’ that needed to be laid in terms of s 3(1)? In Munir, the Court was able effectively to side-step this question since, if withdrawal of DP 5/96 was, as argued, unlawful because of failure to follow the requisite parliamentary procedure, it must follow that DP 5/96 was itself invalid for the same reason. In any event, DP5/96 was not a ‘statement of practice’ because it incorporated discretion: each case had to be considered on its merits and the factors ‘relevant to reaching a judgment’ might or might not be applied. Judged by the rule-of-thumb established by Lord Dyson, that the less the flexibility inherent in the concessionary policy, the more likely it was to fall within s 3(2), DP5/96 was merely a ‘concessionary policy statement’. Perhaps the only surprise here lies in the total absence of any mention of the doctrine of legitimate expectation.

In Alvi, it was harder to resolve the crunch question and, although there were no dissenting judgments, the Supreme Court Justices were not so tidily at one. There was general agreement that the points system did amount to a statement of practice within s 3(2) and did need to be laid. Both the ‘guidance’ and the ‘List of Skilled Occupations’ posted on the departmental website created requirements which the immigrant ‘must’ satisfy; they were in short, determinative of rights and must be laid before Parliament.

These nice distinctions (which surely fall within Humpty Dumpty’s famous observation that words mean what the speaker wants them to mean) leave much room for jurisprudential analysis. What are we to make, for example, of Lord Dyson’s conclusion in Munir that a ‘concessionary policy statement’ is not a ‘statement of practice’? Of more interest, however, is where the boundary between rules and discretion lies. This is, after all, a question that administrative lawyers have been discussing at least since KC Davis wrote, with many contributions from distinguished jurists, such as Ronald Dworkin’s ‘hole in the donut’ metaphor. It is fair to say that there is much academic support for the idea of rules and discretion as points on a spectrum or sliding-scale, though needless to say, the academic debate (summarised in ch 5 of C Harlow and R Rawlings, Law and Administration, Cambridge University Press, 2009) found no place in the two Supreme Court decisions. Indeed Lord Dyson in Alvi simply brushed aside the notion of a spectrum as advanced by Sullivan LJ in R (Joint Council for the Welfare of Immigrants) v Home Secretary [2010] EWHC 3524 (Admin) in favour of a clear binary distinction between ‘substantive’ and ‘procedural/evidential’ requirements – a distinction that he immediately rejected as not providing a ‘satisfactory basis for deciding what is and what is not a rule within the meaning of s 3(2)’. Lord Dyson’s solution was that ‘a rule is any requirement which a migrant must satisfy as a condition of being leave to enter or leave to remain’ (emphasis mine). This ‘solution’ reprises the well-known problem of distinguishing ‘must’ from ‘may’ traversed many years ago in Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997 and rather suggests that a rule is a rule when Humpty Dumpty (a.k.a. the Home Office, UKBA or, indeed, the Supreme Court) chooses to treat it as mandatory.

What is the outcome for immigration law? It is now clear that the IRR are subordinate legislation and that any change to them involving mandatory requirements or conditions will have to be laid. This is a conclusion reached by Lord Wilson ‘without enthusiasm’; he rightly saw that it would create ‘an astonishingly prescriptive system’ (Alvi [128]). Lord Hope in the leading judgment, expressed similar concern (Alvi [65]) over the burden on Parliament, falling for the most part on the House of Lords Committee on the Scrutiny of Secondary Legislation (formerly the ‘Merits Committee’), if the process of laying were not to become a mere procedural formality. Equally, there would be a burden on the courts from the ‘rapid succession of cases’ and new opportunities afforded for challenge (Alvi [54]). Against these negative impacts, however, the dangers of allowing the Home Secretary unfettered discretion to change the rules must be weighed.

How can this rigid and inflexible system, brought about through a laudable desire for legal certainty and administrative consistency, be ameliorated or, better still, evaded? Has the Supreme Court opened an escape hatch in Munir? Provided the draftsman is careful to scatter the magic words ‘may’ liberally throughout the text, perhaps substituting ‘advice’ for ‘guidance’, statements of policy change may ’scape laying. How immigration officials will read the rules is, of course, another question altogether!

Carol Harlow is Emeritus Professor of Law at the London School of Economics

Suggested citation: C. Harlow, ‘How not to do things with rules’ UK Const. L. Blog (15 September 2012) (available at http://ukconstitutionallaw.org).

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Tagged as Immigration Rules, prerogative power, rule-making, secondary legislation

by Constitutional Law Group | July 26, 2012 · 2:44 pm

Paul Daly: Taking Statutes Seriously

Drawing on English, American and Canadian material, I develop in A Theory of Deference in Administrative Law: Basis, Application and Scope (CUP, 2012) a unique approach to judicial review of administrative action. Animated by a desire to inspire change rather than wholesale implantation, I elaborate a comprehensive theoretical approach which is not tied to any particular jurisdiction. Bringing the intractable ultra vires debate to a friendly resolution was not a goal of mine (though useful sources of inspiration sprung from the debate). Nevertheless, I realized to my surprise that I might have something of relevance to say. Resolving the dilemma at the heart of the debate was beyond me: I baldly assume that judicial review is legitimate and thereby dodge the central dilemma entirely. But my approach to substantive review has something to say to both sides of the ultra vires debate. First, let me outline my approach. Second, let me amplify its implications for the ultra vires debate.

The Basis of Curial Deference in Administrative Law

I have two arguments here, one based on the delegation of authority by legislatures to administrative decision-makers, the other based on what I call practical justifications for curial deference. My delegation argument is that because the legislature has delegated (or granted – nothing turns on the terminology) variable degrees of power to administrative decision-makers, courts must also follow a variable approach in order to give effect to legislative intent. A uniform approach to judicial review would be inapposite in an era of many and varied administrative decision-makers with many and varied powers. If the same standard of review were to be applied, then the legislative choice to delegate varying degrees of power would be undermined. With such varying levels of power and such different administrative decision-makers, it would be contrary to legislative intent to apply the same standard of review across the board. Not, I hasten to add, legislative intent in some sort of literal, ‘voices in the air’ sense. Rather, legislative intent as evidenced in individual statutes and the statute book as a whole.

My practical justifications argument also flows from an obligation to take statutes seriously and runs as follows. Just as a variable standard of review would be necessary if the legislature directed courts to develop and implement one, reference to the reasons whydelegation took place would also be necessary if the legislature directed it. If reasons which explain the delegation of power can plausibly be inferred from a proper consideration of the relevant statutory provisions, then it can be argued that they influenced the legislative decision to delegate power to a body other than a court, and are thus factors that a reviewing court ought to consider. I identify four: expertise, complexity, democratic legitimacy and procedural legitimacy; as with delegations of power, these vary from statute to statute. The judicial task in this context is to ascertain by reference to the statute, and the statute alone, what plausibly can be taken to have influenced the legislative decision to delegate power.

Taking statutes seriously, then, leads to the conclusion that the intensity of judicial review ought to vary. How variable standards of review are implemented may vary from jurisdiction to jurisdiction: England has its super-, sub- and plain-vanilla Wednesbury unreasonableness, for example. I urge courts to employ a general conception of unreasonableness. To simplify greatly, what is unreasonable will be determined in individual cases by application of considerations drawn from the rule of law and principles of good administration. Where do judges get the authority to do this? On my account, a consideration of individual statutes and the statute book at a whole will suggest that courts should develop variable standards of review. Variable standards of review have to be implemented somehow. Unreasonableness, given its central importance in administrative law and its pliability, is as good a tool as any. In other words, taking statutes seriously opens up space for judges to apply the rule of law and principles of good administration.

The Ultra Vires Debate

For many years the orthodox English position was that the ultra viresprinciple was the keystone of judicial review. The legislature delegated authority within certain parameters which the courts would police, thereby giving effect to the intentions of the legislature: the judiciary was faithfully imposing on the executive limitations laid down by the legislature in statutes. However, as the ‘common law’ theorists pointed out, in reality judges were fashioning principles of good administration. They were doing so of their own volition, independent of legislative intent, and the ultra viresprinciple was merely a ‘fig-leaf’. Defenders of the orthodox position, although agreeing that the ultra viresprinciple was a fig leaf, considered it a vital one, hiding the immodesty of the courts’ challenge to parliamentary sovereignty. For, if courts were fashioning independent principles of good administration, these were, surely, fetters on the sovereignty of Parliament.

Nonetheless, the orthodox account remained deficient. The ultra viresprinciple needed to be re-conceptualised to accommodate the intentions of Parliament and the creative role of the courts in developing principles of good administration. Grasping the nettle, the defenders of orthodoxy argued that Parliament, save where it clearly indicates otherwise, intends to legislate in conformity with the rule of law and must to be taken to legitimate the courts’ role in developing the principles of good administration. As Mark Elliott explained:

While the details of the principles of review are not attributed to parliamentary intention, the judicially-created principles of good administration are applied consistently with Parliament’s general intention that the discretionary power which it confers should be limited in accordance with the requirements of the rule of law.

Because descriptive accuracy is sacrificed for theoretical consistency, even its supporters had to admit that this ‘modified ultra viresdoctrine’ was formal and conclusionary in nature. But if the ultra viresprinciplecan be relied upon to justify any decision reached by a reviewing court, the judicial obligation to give effect to legislative intent may be dissolved in an elixir of judicial creativity. For the ‘common law’ theorists, the development of judicial review is almost entirely divorced from legislative intent. Only where the legislature affirmatively specifies grounds or standards of judicial review is legislative intent said to be relevant. Judicial review would develop, on this approach, in splendid isolation from statutory language, limited only by some variant on the following principle proposed by Paul Craig: it must ‘reflect the considered judgment of the courts at that time that this was the best reading of the rule of law’.

My approach to legislative intent charts a middle course between two extremes: the common lawyers discount statutory provisions save for those extremely rare instances in which the legislature affirmatively specifies clear rules for the conduct of judicial review; and the traditionalists identify legislative intent with doctrines developed by judges. In fact, once it is accepted that judicial review is legitimate, legislative intent can play an important role in shaping the general principles of judicial review, suggesting, in particular, the development of variable standards of review. The principles of good administration need not be marginalised and will be relevant to determining whether or not a decision survives the appropriate standard of review. Following my approach, the fundamental insight of the common law theorists – that it is for judges to develop the general principles of judicial review – is incorporated, but the judicial role is relocated in such a way as to give more prominence to legislative intent, thus avoiding what Elliott described as the ‘substantial implausibility which is involved in the assertion that the complex principles of good administration simply spring from Parliament’s legislative silence’.

In short, legislative intent need not be treated as marginal, or as an empty vessel into which judicial review doctrine can be poured. Taking statutes seriously is thereby a ‘third way’ of approaching the ultra vires debate.

Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at paul.daly@umontreal.ca. He blogs at administrativelawmatters.blogspot.com.

Suggested citation: P. Daly, ‘Taking Statutes Seriously’ UK Const. L. Blog (26 July 2012) (available at http://ukconstitutionallaw.org).

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Filed under Judicial review

Tagged as Basis of judicial review, Judicial Review, statutory interpretation, Ultra vires debate, Unreasonableness

by Constitutional Law Group | July 10, 2012 · 3:03 pm

Se-shauna Wheatle: The Residual Powers of the Court

There has, justifiably, been much debate about the implications of the judgments of the Supreme Court of the United Kingdom in R (Jackson) v Attorney General [2005] UKHL 56, [2006] AC 262 and AXA General Insurance Ltd v The Scottish Ministers [2011] UKSC 46, [2011] 3 WLR 871. What is perhaps the most constitutionally significant aspect of these judgments is the court’s professed residual power to review legislation on common law grounds. The term ‘residual power’ is the coinage used by Lord Reed in a seminar conducted at Balliol College, Oxford, on May 2, 2012. The very labelling of the power as residual is significant because it evokes questions about the source of the power and the frequency with which it be deployed. The label ‘residual’ suggests that the power is not to be located in the text of a statute. This is rather basic, but is of course, one source of controversy surrounding the very assertion of this residual power. The fact that it is not located in a statutory text raises questions as to the democratic legitimacy of the power; it also heightens concerns about the scope of such a power and about the wisdom of permitting judges to delineate the scope of that power. Beyond the question of legitimacy lie further questions about the implications of the judgments in Jackson and AXA with respect to the definition and application of the purported residual power to review legislation. I will first distinguish the residual powers asserted by judges in the two cases, discuss whether the vagueness of the residual powers poses a problem, and end with a note on the precedential impact of the judgments.

1. The Purported Residual Powers of the Court

Two residual categories have been identified by the Law Lords in these two cases. The first of these is ‘exceptional circumstances review’ as outlined by Lord Steyn in Jackson and Lord Hope in AXA. This category of review may arise where a statute violates the rule of law and the court is required to invalidate the statute because of its duty to protect the rule of law. The second is where review can be justified on the principle of legality as outlined by Lord Reed in AXA. The latter branch of residual power is potentially more limited than the former in at least two senses. It is conceptually more limited in that, though Lord Reed invokes the rule of law in support of this power, it is based more specifically on the principle of legality. For Lord Reed, then, the court’s residual power to invalidate legislation rests on the presumption of legality, which ‘means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so.’ This is a restatement of the principle of legality as articulated by Lord Steyn in Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539 and Lords Steyn and Hoffmann in R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115. Secondly, legality-based power is of more limited scope in its applicability. Insofar as it allows courts to disapply or invalidate legislation, it appears to only be applicable to subordinate legislatures because Lord Reed’s reasoning on the principle of legality is that Parliament cannot, by general or ambiguous words, confer on another body the power to override fundamental rights or the rule of law [152-153]. The principle is therefore quite potent as applied to legislation of a subordinate legislature because it would allow the court to invalidate a statute or statutory provision as outwith the powers of that legislative body. As applied to a sovereign Parliament such as the UK Parliament, the principle allows for (creative) interpretation of Acts of Parliament but not outright judicial rejection of such legislation. By contrast, the power identified by Lord Steyn in Jackson and Lord Hope in AXA has the potential to be much broader, encompassing the potential for review of legislation enacted by the UK Parliament.

2. Vagueness: Problem? What Problem?

Commentators have rightly indicated that the residual categories (particularly ‘exceptional circumstances’ review based on the rule of law) suffer from a vagueness problem. The vagueness arises in at least two areas. The first is the lack of clarity as to what constitutes ‘exceptional circumstances’. This in turn raises questions as to the rule of law values which would have to be threatened and as to degree of threat to such values which would provoke the court’s intervention. The second area of vagueness is that it is unclear what action or intervention such a threat might provoke from the courts. Will the court’s intervention appear in the form of extremely creative (re)interpretation of statute, disapplication of a statute in a particular case or invalidation of a statute? The vagueness inherent in the exceptional circumstances category may be defended on the ground that as a residual power, there must be uncertainty in its formulation. Yet, it is not entirely convincing that a residual category must necessarily be vague. A residual power could be formulated to permit the court’s intervention only in circumstances where legislation seeks to abolish judicial review, thereby interfering with access to the courts. This was one of the examples given by Lord Steyn in Jackson [102] and it is conceivable that exceptional circumstances review could be limited to exceptional possibility. The problem is that Lord Steyn did not limit the circumstances to such cases nor did he provide a definite indication of the scope of ‘exceptional circumstances’. It is arguable that the judges have quite deliberately left the category vague in order to allow flexibility for the court to develop the category as it sees fit and to craft what it deems to be an appropriate response to circumstances it has not, and perhaps could not have foreseen. Perhaps more importantly, Lord Reed in the seminar at Balliol College, took the view that it was ‘not a problem’ that the content of the ‘rule of law’ and ‘fundamental rights’ which underlie both categories of residual power are vague. In his view, this may encourage authorities to be more careful. This argument in defence of the vagueness of the scope of the residual powers emphasizes the inter-institutional dialogue that is at play in AXA and Jackson.

3. Inter-Institutional Dialogue and Setting Precedents

It has been accurately observed that some of the obiter dicta in Jackson were a direct response to the proposed Asylum and Immigration (Treatment of Claimants etc.) Bill, which would have sought to oust judicial review of decisions of the court, even where those decisions were alleged to be in breach of natural justice. One could therefore be tempted to relegate these judicial pronouncements to the realm of inter-institutional dialogue and as mere warning shots directed at the government and Parliament. This, however, does not mean that we must not take the judges seriously. AXA is proof of the need to take the assertion of residual powers of the court seriously and of the need to debate the practical implications of the purported residual powers of the courts and to interrogate the normative justification for such powers. It is true that the actual judgment in AXA was limited to finding that the Supreme Court had power to review Acts of the Scottish Parliament on the common law grounds identified by the judges, however, this in itself is a significant development which was based, in part, on the dicta in Jackson regarding the power to review Acts of the UK Parliament. Further, Lord Hope’s judgment in AXA, with which the other Law Lords concurred, stated that ‘[t]he question whether the principle of the sovereignty of the United Kingdom Parliament is absolute or may be subject to limitation in exceptional circumstances is still under discussion.’ [50] Out of inter-institutional dialogue, the roots of dramatic precedent may spring up. We should not discount the role of persuasive precedent in developing the law, particularly the ‘uncharted territory’ of constitutional law which arose for discussion in these two cases.

It remains to be seen exactly how these judgments will affect the development of constitutional theory and practice. The issues raised in this piece, and others that have been discussed elsewhere, must be addressed. The judgments are, at least, one step in grappling with the tension that may arise between parliamentary sovereignty and other constitutional principles.

Se-shauna Wheatle is a DPhil Candidate at Balliol College, and Lecturer in Law, Exeter College, University of Oxford.

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Filed under Human rights, Judicial review, Judiciary

Tagged as Axa Insurance, constitutional review, Jackson

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