Tag Archives: Judicial Review

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 | 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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Filed under Judicial review

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

by Constitutional Law Group | January 20, 2012 · 4:52 pm

Aileen McHarg: Public Law, Private Law and the Distinctiveness of Scots Judicial Review

Scottish judges and textbook writers are fond of asserting the distinctive nature of judicial review in Scotland compared with England. According to Clyde and Edward, for example, (Judicial Review, 2000, ch 2), the basis for judicial review in Scotland is a more generalised one than in England, historically grounded in equity, and not so dependent on specialised procedures or specific remedies. This view was endorsed by the Inner House of the Court of Session in West v Secretary of State for Scotland 1992 SC 385, which held that, although the grounds of review are essentially the same in the two jurisdictions, the scope of review is not. The correctness of West has subsequently been repeatedly affirmed both by the Scottish courts and by the House of Lords/Supreme Court, and the claimed historical and conceptual distinctiveness of Scots law is sometimes invoked as a reason for not following English authority. For instance in Eba v Advocate General for Scotland [2010] CSIH 78 one of the reasons given by the Inner House for refusing to follow the Court of Appeal’s ruling on the reviewability of the Upper Tribunal in R (Cart) v Upper Tribunal [2010] EWCA Civ 859 was the fact that judicial review in Scotland is available as of right and not dependent upon the discretion of the court. For the same reason, inter alia, the Supreme Court considered it necessary to give separate judgments in Eba [2011] UKSC 29 and Cart [2011] UKSC 28, notwithstanding that it thought that the extent of review of the Upper Tribunal should be the same in both countries.

In fact, though, the practical differences between Scots and English judicial review are fast disappearing. Indeed, the Supreme Court itself has done a good job in recent months of ridding Scots judicial review of some of its more problematic idiosyncrasies. In Eba, reiterating that the grounds of review are the same in Scotland as in England, Lord Hope held that Lord Emslie’s dictum in Watt v Lord Advocate 1979 SC 102, to the effect that the Court of Session could only correct ultra vires and not intra vires errors of law, should no longer be followed, since it was irreconcilable with the decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Then in Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46, the Supreme Court abandoned title and interest, as laid down by the House of Lords in D&J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7, as the test for access to judicial review. According to Lord Hope and Lord Reed, the Nicol test had been adopted before the modern development of public law and was therefore based in irrelevant and inappropriate private law concepts which had had a damaging effect on the development of judicial review in Scotland. Since, in public law cases, the role of the courts was to vindicate the rule of law rather than private rights, they held that the test should be based on interests alone (the precise nature of the interest required depending on the context) and should in future be referred to as ‘standing’. This clearly resembles the English approach, although it remains to be seen how far the Scottish courts will follow England in liberalising access to judicial review.

The abandonment of title and interest in favour of the English test of ‘sufficient interest’ had in fact already been recommended by the Gill Review (Report of the Scottish Civil Courts Review, Vol II, 2009, ch 12 – http://www.scotcourts.gov.uk/civilcourtsreview/theReport/Vol2Chap10_15.pdf), and Gill also recommended following the English approach by introducing a three month time limit within which to bring an application for judicial review, and a requirement to obtain leave to proceed. Both recommendations have been accepted in principle by the Scottish Government, subject to consultation on the length of the time limit (Scottish Government Response to the Report and Recommendations of the Scottish Civil Courts Review, 2010 – http://www.scotland.gov.uk/Resource/Doc/330272/0107186.pdf), although they have not yet been implemented. These proposed reforms are less welcome than the reforms of standing and review for error of law, not only because there is no strong evidence that they are necessary, but also because they are likely to bring in their wake another problematic aspect of English judicial review procedure, namely increased litigation over the exclusivity of the judicial review procedure – a problem which already exists in Scots law, but which has not so far been of major practical concern since there is little incentive to bring an ordinary action instead of judicial review. However, these changes, if implemented, will not only be of practical significance. The introduction of a leave requirement, for instance, will remove the claimed conceptual difference between Scots and English law relied upon in Eba.

What, then, is left of the alleged distinctiveness of Scots judicial review? Apart from the available remedies – there is no Scottish equivalent of the prerogative orders, so ordinary civil remedies are used instead – the major outstanding difference relates to the scope of review and the related question of the classification of the remedy. In West, Lord Hope, as Lord President of the Court of Session, stated that in Scotland, unlike in England: ‘The competency of the application [for judicial review] does not depend upon any distinction between public law and private law, nor is it correct in regard to issues about competency to describe judicial review as a public law remedy.’ Instead, judicial review was competent to correct errors or abuses by ‘any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument.’ The appropriate test for identifying a reviewable decision was therefore the existence of a ‘tripartite relationship’ between the decision-maker, the person affected by the decision, and a third party from whom decision-making power has been delegated or entrusted.

This test has the major advantage over the English approach of not excluding from review powers derived solely from contract, and review of so-called ‘domestic tribunals’ is therefore more readily available in Scotland, even extending, in several cases, to the decisions of golf club committees. More generally, though, the West test is highly problematic as a conceptual explanation of the scope of review and has proved no easier to apply in practice than the English public/private distinction (for fuller discussion see A McHarg, ‘Border Disputes: the Scope and Purposes of Judicial Review’ in A McHarg and T Mullen (eds), Public Law in Scotland, 2006). Nevertheless, as already noted, Scottish judges continue to cite West with approval. However, it too has been placed under considerable conceptual strain by the recent trend towards assimilation with English law.

The strain first began to show in Davidson v the Scottish Ministers (No 1) [2005] UKHL 76, which concerned whether the prohibition on granting coercive remedies in civil proceedings against the Crown in s.21 of the Crown Proceedings Act 1947 extended to judicial review. In order to bring Scots law into line with the decision in M v Home Office [1994] 1 AC 377 that the prohibition did not extend to judicial review in England, but at the same time unwilling to draw a direct analogy between Scots and English judicial review, the two Scottish Law Lords, Lord Hope and Lord Rodger, introduced a distinction between ‘public law’ and ‘private law’ judicial review proceedings. Arguing that the main purpose of the Crown Proceedings Act was to reform English law as it applied to private law proceedings against the Crown, they held that the phrase ‘civil proceedings’ in s.21 therefore only applied to private law proceedings. Because judicial review in Scotland was not solely a public law remedy, it was not possible to exclude it entirely from the meaning of ‘civil proceedings’. However, cases in which judicial review was being invoked against the Crown were public law proceedings, and so were not covered by the s.21 prohibition.

Although intended as a reaffirmation of West, the decision in Davidson in fact significantly revised it: contrary to West, judicial review in Scotland does involve a distinction between public law and private law, although this is a distinction that must be drawn within the judicial review caseload, rather than a means of delineating the boundaries of review. The distinction is, however, a problematic one. In the first place, it was not clear from the decision in Davidson how and where the boundary between public law and private law judicial review was to be drawn – there are suggestions in some places of an institutional approach to the distinction, but elsewhere of a functional approach. Secondly, it was also unclear what, if anything, was the practical significance of the difference (although there is some authority to the effect that the grounds of review might be different for at least some categories of private decision-maker, such as arbiters – Diamond v PJW Enterprises Ltd 2004 SC 430).

Until recently, therefore, it might have been tempting to dismiss the deployment of the public law/private law distinction in Davidson as merely an expedient for getting round a problematic point of statutory interpretation, of no real practical importance. However, the Supreme Court’s decision in Axa has both reinforced and given some substance to the distinction. This is because both Lord Hope and Lord Reed expressly limited their rejection of title and interest to public law proceedings. Lord Reed did not discuss what the test should be in private law cases, but Lord Hope stated that title and interest remains appropriate because: ‘The fact that a person upon whom a decision-making function has been conferred by a private contract is amenable to the supervisory jurisdiction is not something that is likely to affect anyone other than the parties to the contract.’

Nevertheless, while it may now have some substance, the distinction is no less problematic than it was before Axa. There is no discussion whatever in Axa of how the line is to be drawn between public law and private law judicial review proceedings, and Lord Hope’s reason for differentiating them in relation to standing is, in my view, unconvincing. While it may be true in some cases that contractually-based decisions are of no interest to third parties, just as some decisions taken under statutory authorities have no wider implications, it is not necessarily true in all cases, and certainly not in the more important instances of judicial review in the private sphere, such as in relation to self-regulatory bodies or contracted-out service providers. It is not difficult to conceive of circumstances in which people not in a contractual relationship with such bodies – say the intended beneficiaries of self-regulation or the recipients of contracted-out services – might wish to challenge their decisions. And while there may be legitimate concerns about over-exposing private decision-makers to potential challenges, these could readily be met by a contextually-sensitive application of an interest-based standing test, rather than by continuing to require proof of title to sue.

In fact, in my view, the attempt to distinguish between public law and private law judicial review proceedings in general is misguided. Rather than resolving some of the problems created by West, it simply compounds the wrong-turning taken by Scots law in that case when the Inner House refused to follow English law in accepting, as I have argued elsewhere (see McHarg, 2006, above), that judicial review is always a public law remedy. The essential problem is that, in West and subsequent cases, the Scottish courts have attempted to maintain two mutually inconsistent positions: first, that the Scots law of judicial review is fundamentally different from English law; but, second, that Scotland should follow England’s lead in relation to the substantive grounds of review, and now also in relation to procedural matters. Instead of advancing a conceptually distinct account of the nature of judicial review in Scotland, the result, in my opinion, has simply been muddle and confusion. By contrast, adopting the English version of the public/private distinction would undoubtedly bring with it practical difficulties, but it would provide greater conceptual coherence, by acknowledging the conceptual linkages between questions of scope, grounds and procedure. Assimilation with English law would not, however, necessarily imply that the Scottish courts should follow every aspect of English jurisprudence on the scope of review – arguably, for instance, the English courts are wrong to exclude review of contractually-based decisions. On the contrary, one of the benefits of abandoning the claim to a fundamental distinction between Scots and English law is that it would provide Scottish judges with a stronger conceptual foundation upon which to make a more active contribution to the development of judicial review – leading as well as following – than they have done in recent years.

In short, the time has come to consign West to the legal history books, along with Watt and Nicol.

Aileen McHarg is a Senior Lecturer in Law at the University of Glasgow.

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Tagged as Judicial Review, Public-Private Divide, Scotland

by Constitutional Law Group | September 23, 2011 · 8:42 am

Gavin Phillipson: Constitutional Principles and the Human Rights Act: Moving Beyond One-Way Street Approaches

I’ve been thinking recently about the relationship of the Human Rights Act with the existing principles of the UK constitution – themselves not always easy to pin down or agree upon of course. I realise that I’d unconsciously taken the view, in some of my previous writings, that this relationship operated as a basically one-way street: it was about, and only about, how far the HRA transformed the existing constitution. And as one of the enthusiasts for the HRA, I’d been eager to argue for that effect to be of maximum possible extent. But increasingly recently I’ve been wondering – and have started to write about – the opposite question: how far the HRA itself must be read in the light of pre-existing constitutional principles. And my thought so far is that this question not only tends open up what we might crudely call a ‘legal v political constitutionalism’ divide in scholarship, but that it poses something of a paradox for that divide too.

Under the traditional UK constitution, the key principles were the political accountability of the Executive branch to Parliament, and of the sovereign Parliament to the people, while the judges were confined to a modest role in policing a narrow, formal conception of the view of law, in the shadow of parliamentary supremacy. So how far has the HRA changed this? A very large question of course, not to be tackled in a single article, let alone a single blog post, but what I want to point out here is how approaches to this question – including how it is posed – cannot help but fall into – or open up – the legal-political constitutionalism divide I’ve mentioned. I think we can sketch two basic contrasting views, which of course bear directly upon not only a range of specific interpretive issues raised by the HRA, but also the assessment of the overall significance of the Act. These interpretive issues, all of which are keenly contested, include in particular, (a) the role of judicial deference in reviewing decisions of the elected branches, (b) the extent to which the courts can re-define the meaning of legislation to conform with the Convention rights, and (c) how far courts have an obligation to develop protection for those rights even in the sphere of private common law (the ’horizontal effect’ debate). But the difference between the two views is not simply the different answers they give to these specific questions, although they do tend to give different ones; from it also follows two sharply opposing analytical perspectives through which the interface between the HRA and traditional constitutional principles is itself approached. (Before going any further I must add the rider that these two contrasting approaches are relatively crudely sketched here and that there are many important nuances I would have acknowledged (at least in footnotes!) are thereby glossed over. In particular, some judges and scholars have taken rather minimal readings of the HRA seemingly for ‘small c conservative’, rather than political constitutionalist reasons) .

Under the first view, associated with the school referred to variously ‘as liberal normativists’ or ‘legal constitutionalists’, the HRA amounts to a hugely significant re-orientation of the UK constitution away from its traditional majoritarian basis. On this view, the HRA, despite its relative weakness as a merely statutory ‘Bill of Rights’, formally subject by its provision to parliamentary supremacy, marks a signal change in the judges’ previous ‘procedural’ role, and a major re-balancing of the three arms of government in favour of the judiciary. In turn, under this view, the interpretation of the HRA itself should be driven by the overriding objectives of ensuring maximal protection for, and further development of, the Convention rights and be strongly informed by the Convention’s implicit requirement that questions concerning rights are primarily for judicial determination, as they are at Strasbourg.

It is well known that, particularly in relation to the three interpretive issues mentioned above, the Act allows for a degree of judicial choice between the use of what may be crudely termed its ‘pro-rights’ provisions (s 6(1), 3(1) in particular) and its ‘pro-majoritarian’ aspects (s 6(2), 3(2)) and 4) – and thus gives rise to a sliding scale of judicial power. Under the rights-driven interpretative approach, the dial of judicial power is generally turned to the maximum. The result is that the judicial role becomes elevated to such an extent as to give rise to what has been referred to as a ‘bi-polar sovereignty’, with the rule of law and protection of fundamental rights given equal or near-equal status with the supremacy of Parliament to which they were previously so firmly subordinated. Under this view, then, the HRA plays a major road in re-conceptualising – even transforming – the UK constitution.

In sharp contrast, under the second view, associated with the ‘political constitutionalist’ school, the HRA has a much narrower role and a primarily practical one: it is there simply to give British citizens access, in domestic courts, to the rights that previously only Strasbourg could enforce. In turn this means that, when assessing and interpreting the HRA, instead of asking how far the Act should change our view of the constitution, such a view instead assumes that traditional constitutional principles must shape our view of the HRA. Such views tend to stress the continuing operation of what can be termed ‘the constitutional constraint’ on judges, represented by the separation of powers and the primacy of Parliament’s democratic role. Under this view, the courts must grant considerable deference to the elected branches of government, continue to develop the common law only incrementally, and take particular care to ensure that ‘interpretation’ of legislation never tips over into effectively re-writing it. Conor Gearty has been particularly active in arguing for this viewpoint.

While remaining broadly on the ‘legal’ rather than ‘political’ shores of constitutional scholarship, I have started to perceive more of a need to consider the ‘fit’ of the HRA within the existing constitution, particularly where its provisions are ambiguous. For example, in a forthcoming article with my colleague Alex Williams at Durham, ‘Horizontal Effect and the Constitutional Constraint’ (MLR, 2011), we argue that the horizontal effect puzzled posed by the HRA cannot ultimately be solved simply by consideration of the provisions of the Act itself or even of the Convention rights. Rather, given the paradox set up by section 6(1) and (3)’s inclusion of judges within those public authorities bound to act compatibly with the Convention rights taken together with the Act’s presumably deliberate silence on private law and common law, we must turn to existing constitutional principles governing the role of the judiciary, which (we argue) provide the ‘constitutional constraint’ of incrementalism; this supplies the necessary definition of and limitation upon the judicial role in developing common law compatibly with the Convention rights.

Of course, in the end, either view is incomplete on its own. To focus only on how the HRA changes the constitution misses the inevitable question of how far the constitution governs how we approach the HRA in the first place. But, equally, to argue that interpretation of the HRA’s provisions must be governed by traditional principles is a very partial view: first it leads one into the kind of doctrinal messes we’ve seen when judges have tried to water the section 6(1) head of judicial review down into a muddled kind of heightened Wednesbury; but second, of course, going too far in reading down the plain terms of the HRA – an Act of Parliament – risks disrespect to Parliament’s sovereignty – the first principle of the traditional constitution. And this leads us to the possible paradox I mentioned at the beginning of this essay. Those who, through interpretation of the HRA, seek to turn down its dial of judicial power are in the end appealing to principles of the UK constitution – the separation of powers, and a particular view of parliamentary democracy – and asserting that Parliament cannot change these things; rather, legislation like the HRA which seemingly seeks to do so finds itself in turn simply re-interpreted by those principles. (An example would be the way that their Lordships in Bellinger read the limits of the interpretative obligation imposed by section 3(1) HRA in the light of the limits to the judicial role prescribed by the constitutional background as they saw it). The paradox I sense, then, goes something like this: enthusiasts for the Act – ‘true blue Convention lawyers’ as Gearty once dubbed us – essentially rely on parliamentary sovereignty in order to assert that Parliament can, and has, transformed the traditional constitution through enacting the HRA – and yet are often not major fans of that doctrine. Conversely, those ‘political constitutionalists’ who resist such an expansive reading of the Act’s constitutional significance seem to rely in doing so on Parliament’s inability to change certain constitutional fundamentals; and yet it is the political constitutionalists who, broadly speaking, are most supportive of a traditional view of parliamentary sovereignty, under which any and every principle other than the basic sovereignty of parliament itself is open to change by Parliament. I can think of various possible ways of debunking this seeming paradox myself but am eager to see what readers have to say.

It seems obvious that the solution to the polarity of the ‘two views’ on this issue I’ve sketched above is a more sophisticated reading of the relationship I’m considering, whereby the HRA is both interpreted through existing constitutional principle while viewed as simultaneously starting to change those principles over time. It certainly seems to me that one’s overall constitutional leanings are always going to condition how one perceives the relative balance between those two contradictory tendencies. In the absence of a formal mechanism for constitutional change in the UK, analysing and justifying the process and direction of such change is always going to be a murky and contested business.

Gavin Phillipson is Professor of Law at the University of Durham. Some of the above thoughts will be fleshed out in a forthcoming chapter in Leigh and Masterman, The UK’s Statutory Bill of Rights: Constitutional and Comparative Perspectives (2012, British Academy).

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Tagged as Constitutional Principles, Human Rights Act, Judicial Review

by Constitutional Law Group | June 27, 2011 · 3:48 pm

Liz Fisher: Transparency

‘We want to be the most open and transparent government in the world’ is the first line of the website for the Prime Minister’s Office dedicated to the issue of transparency (http://transparency.number10.gov.uk/) and in the time since the Coalition government has been in office, the need for transparency has become a common refrain. Transparency is an aspiration that few would disagree with and Cameron’s statement echoes Obama’s Open Government Initiative in the US (http://www.whitehouse.gov/open) and numerous other proposals across the world. Nor is it something particularly new in the UK. Over the last decade there have been many legal and policy reforms dedicated to improving transparency. Some of these have been overarching such as the Freedom of Information Act 2000 but many have been far more specific: Environmental Information Regulations 2004; International Development (Reporting and Transparency) Act 2006; and the Public Contracts Regulations 2006. Likewise, institutions such as the National Institute for Health and Clinical Excellence (NICE) have been created so that they operate transparently. Pieces of legislation such as the Constitutional Reform and Governance Act 2010 are also promoting transparency in a range of different government activities. Yet while most agree that transparency is ‘good’ there has been very little substantive analysis of the nature of these reforms. That is a problem – not because transparency is ‘bad’ but because transparency is far more complex than a lot of current discourse presumes it to be.

First, there are many different reasons that transparency is being promoted. For example David Cameron’s letter to government departments on opening up data stated that greater transparency would:

‘enable the public to hold politicians and public bodies to account; to reduce the deficit and deliver better value for money in public spending; and to realise significant economic benefits by enabling businesses and non-profit organisations to build innovative applications and websites using public data’ (http://www.number10.gov.uk/news/statements-and-articles/2010/05/letter-to-government-departments-on-opening-up-data-51204).

There are lots of different goals, assumptions, and expectations in there – political accountability, administrative accountability, deficit reduction, better financial management, economic opportunities, non-governmental involvement, and technological innovation. And that is just one statement. Look right across government and one can see a range of other hopes about transparency – market efficiency, building trust, stopping corruption, education, encouraging participation, stopping mistakes, giving people choice and encouraging self-discipline. Some of these goals do overlap but the reality is that transparency is being promoted for many different reasons. There may general agreement that transparency is ‘good’ but different people think it is ‘good’ for different and sometimes contradictory reasons.

Second, and even more significantly, transparency mechanisms themselves are complex and multi-faceted. No transparency mechanism is about making everything visible all of the time. Decisions have to be made about what is to be made visible, when it is to be visible (and for how long), and what the triggers for making something visible are. Thus for example, freedom of information legislation concerns making ‘information’ visible when there is a request. In contrast, financial accounting tends to be in the form of regular reporting, while Registers of Member’s Interests are often being constantly updated. Likewise, different transparency mechanisms will have different users, different institutional apparatuses for their operation, and lead to different consequences. Thus, for example inspectorates a very well entrenched form of making institutions transparent and require a specialized apparatus to do so. Yet different inspectorates have different expected end users. Thus one of the functions of OFSTED reports is producing information for parents who are considering whether to send their child to a school but Her Majesty’s Inspectorate of Prisons for England and Wales is obviously not serving that sort of function. It is also the case, that many of these transparency mechanisms require the creation of something so as to make it transparent – whether it be a report, an account, or an assessment.

Third, transparency has a range of different implications. There are many that could be highlighted but here it is useful to note those most significant to public lawyers. Most obviously, these mechanisms give rise to an administrative law of transparency. Thus, tribunals and courts have been busy dealing with questions about the operation and nature of transparency mechanisms and how they interrelate with other legal concepts and regimes. These questions may focus on the scope of a regime (e.g. Smartsource v Information Comimsisoner [2010] UKUT 415 (AAC) discussing what type of bodies the Environmental Information Regulations 1994 apply to) but also concern the nature of the judicial powers in regards to such mechanisms (OFCOM v Morrissey & the Information Commissioner [2011] UKUT 116 (AAC)). To put it another way, for transparency mechanisms to operate they need a body of legal practice and doctrine – such mechanisms are not self executing.

This is not the only implication of transparency mechanisms however. Perhaps more significantly, the more that is made visible the more that public law applies to. The commitment to transparency in NICE thus leads to administrative law challenges concerned with the transparency of the processes. Thus for example in Eisai Ltd, R (on the application of) v National Institute for Health and Clinical Excellence (NICE) [2008] EWCA Civ 438 (01 May 2008) the issue was whether it was procedurally unfair not to have access to a fully executable model as part of a transparent decision-making system. This is not an issue that judges are used to getting their heads around but it is a legal question that will naturally arise in a regime committed to transparency. There are also real practical consequences of transparency. In Luton Borough Council & Ors, R (on the application of) v Secretary of State for Education [2011] EWHC 217 (Admin) (11 February 2011) Mr Justice Holman noted that ‘the case generated about 7,500 pages of documents, complemented by two “core bundles” totalling about 840 pages and a further 460 pages of “court documents”. The skeleton arguments, supplemented by various additional notes and written submissions, amounted by the end to about 300 pages’ (para 7). Such large documentary records are inevitable in systems committed to transparency but such records also sit uncomfortably with current judicial review procedure.

Most significantly, making something visible does not mean that what is seen is understood. I learnt this lesson the very hard way when reading the BSE Inquiry Report and its evidentiary record. That Inquiry is a wonderful example of a transparency in action with all written and oral evidence available on the web (http://collections.europarchive.org/tna/20090505194948/http:/bseinquiry.gov.uk/report/index.htm). As such it is a fabulous research resource but it is one that took me over a year to actually make sense of because I needed to actually understand what I was reading, not only in terms of its contents but also how it related to its context. Another example of this can be seen in relation to the data that can be found on data.gov.uk. Most of it is pretty meaningless without any further understanding. Thus, to grasp the significance of the ‘real time energy use for Numbers 10, 11, 12 Downing St’ ( see http://data.gov.uk/dataset/real-time-energy-use-nos10-11-12-downing-street) there needs to be not only an understanding of typical energy use but also the nature of these buildings, the cost of that energy use, how it relates to past energy use, and what the other consequences of that energy use are.

Let me make it very clear I am not arguing that transparency is bad. Rather my argument is that transparency is complex and indeed the tendency of discourses about transparency to classify it as either ‘good’ or ‘bad’ is hiding that complexity. Now of course it could be argued that my tendency to highlight its complexity is just part of parcel of my tortured academic outlook but as clear from above, a failure to appreciate the complexity of transparency is really a failure to understand what it is and what it involves. A useful analogy here is with the different medical technologies and techniques we use for seeing inside the body such as x-rays, MRI scans, ultrasounds, blood tests, biopsies, and autopsies. These technologies play an important role in both aiding understanding about how the body works as well as providing a means of taking action. Yet these technologies have different strengths and weaknesses and are used for very different reasons (e.g. research and for diagnosing a range of health problems) and these will influence which mechanisms are used. You wouldn’t use an X-ray if you wanted to measure sugar levels in the blood for example. Part of why you will use these different technologies will also depend on issues to do with costs, ethics and practicalities. Moreover, each technique is a substantive technology itself, which is constantly evolving (take for example the recent development of 3D ultrasound). Far more importantly, the images from these technologies are rarely self explanatory – they need expertise and craft to read and they are often ambiguous. The inside of the body is not replete with little labels explaining exactly what is going on – the images need to be scrutinized carefully and interpreted. In light of all this, it is not surprising that the use of these various technologies are embedded in different professional and academic disciplines (e.g. radiology) and that within those disciplines there is a rich and nuanced discourse about when particular technologies should be used (see for example the range of guidelines on the Royal College of Radiology website – http://www.rcr.ac.uk/), the nature of such technologies, the expertise needed in using them, and the consequences of them. Recognizing all of this is not to damn or praise these medical technologies. Nor is it to say that these technologies should be just left to the experts – expertise may be needed to understand these images but that is not to say we should presume expertise is all knowing and that it should be completely deferred to. Rather my point is a different one. Making the inside of the human body visible is not just about getting hold of lots of X-ray machines or the like – it is far more complex.

In regards to the transparency of public administration that complexity is not just an abstract thing that I as an academic am getting all worked up about. It is very real. There are many different goals being pursued through transparency and some of them are arguably contradictory. Transparency mechanisms have many different facets and the courts and others are dealing with the consequences of transparency. The problem is that much of the discourse about transparency doesn’t touch on any of this in a sustained way. Academics and policy-makers need to broaden and deepen their understanding of transparency. They need to move away from a simplistic pro/anti debate and they need to see that transparency, like an ultrasound, is not a solution – an end point – a happy every after. Rather it’s a starting point that requires serious reflection about the intellectual and practical challenges it creates.

Dr Liz Fisher is Reader in Environmental Law, Corpus Christi College and Faculty of Law Oxford. The issues discussed in this piece are further elaborated upon in E Fisher, ‘Transparency and Administrative Law: A Critical Evaluation’ (2010) 63 Current Legal Problems 272-314.

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