Tag Archives: Judicial Review

Robert Thomas: Administrative Justice, Better Decisions, and Organisational Learning

thomasEvery year, government takes millions of decisions on matters such as individuals’ entitlement to social security, their immigration status, and tax liability. Often, people can challenge negative decisions to a tribunal or lodge a complaint. This is the wide and variegated field known as administrative justice, that area of the legal system which most engages people, but which is often overlooked (there are more hearings before administrative tribunals than double the combined number of civil and criminal justice hearings/trials). Hence the establishment of the UK Administrative Justice Institute.

For many years, there have been significant and pervasive concerns about the quality of initial administrative decisions. Poor initial decision-making means unnecessary appeals and challenges, increased costs and time, and stress for the individuals involved. The “right first time” agenda has been advanced as a solution to this problem. The argument goes as follows. If government could make better initial decisions, then this would reduce the volume of appeals, reduce costs, and be less stressful for individuals who. In this blog, I explore the issue of the quality of administrative decision-making and suggest some possible solutions. My argument, developed in more detail in a forthcoming paper, is that government departments need to engage better organisational learning in order to raise decision-making standards.

The standard of administrative decision-making

People often have to engage with government as part of their day to day life. If someone wants a benefit, or an immigration status, to know what amount of tax they need to pay, temporary accommodation because of homelessness, or which school her child will attend, then dealing with a government agency is inevitable. What is the quality of the decisions produced by government departments and other agencies? It is impossible to know for certain because of the lack of system-wide data, but consider the follow. According to the Ministry of Justice’s tribunal statistics, in 2013-14, some 308,033 appeals against the refusal of Employment and Support Allowance by the Department for Work and Pensions were decided by the First-tier Tribunal (Social Entitlement Chamber) of which 44 per cent were allowed. The appeals cost £69.9 million. The appeals took an average of 25 weeks – nearly half a year – to be heard and decided. In the same year, the First-tier Tribunal (Immigration and Asylum Chamber) determined 67,449 immigration appeals of which 44 per cent were allowed. The average time to determine an immigration appeal was 28 weeks. In special educational needs cases, some 84 per cent of appeals are allowed (albeit that many appeals are conceded or withdrawn before they proceed to a tribunal). These success rates raise questions about the quality of initial decisions.

Such statistics can be supplemented by other evidence. In both the social security and immigration contexts, official reports have commented that the overall quality of decision-making leaves considerable room for improvement. In 2012, the Commons Public Administration Select Committee noted that government should aim to produce decisions which are right first time and command a high degree of confidence: “The scale of the injustice and the cost to the taxpayer caused by poor decision-making are wholly unacceptable.”

Bear in mind that tribunals only ever see those decisions where the individuals concerned appeal. But many people do not appeal for a number of reasons unrelated to the quality of the initial decision. They may lack self-confidence or be unable to access advice. What is the quality of all those initial decisions that are not challenged? It is impossible to know for certain, but there is reason to suppose that the quality of unappealed decisions is of variable quality.

It is important not to assume a simple correlation between appeals and initial decisions whereby the proportion of successful appeal is a clear indicator of the quality of initial decisions. Appeals can be allowed because new evidence is available, or because the tribunal takes a different view of the same evidence. Nonetheless, the standard of decision-making is often inadequate and could be improved. For instance, if appeals are regularly being allowed because new evidence is being supplied on appeal, then shouldn’t the department review its decision-making procedures to find out how such evidence could be captured through the administrative process rather than on appeal? The same point applies if a department and a tribunal are adopting significant differences of approach in how they handle particular appeals – for instance, if the Home Office is regularly refusing asylum claims lodged by nationals from a particular country and the First-tier Tribunal is allowing them. In such circumstances, the department should seek to learn from the tribunal – or, at the very minimum, exchange views with the tribunal to uncover which factors are driving the differential approaches.

Poor decision-making arises for a variety of different reasons, such as the skills and training of initial decision-makers and the environment in which they work. Decision-makers may be under pressure to make decisions quickly or lack proper guidance. Sometimes, the ‘culture’ of decision-making may exert a negative influence. For instance, it has long been argued that immigration decision-making is informed by a culture of disbelief. Resorting to appeal systems to correct poor initial decisions is costly, inefficient, and a source of stress and hardship for claimants. How can government do better?

Organisational learning

To improve the quality of public institutions and their decision making, government agencies need to become learning organisations that seek to improve their performance by learning from their mistakes. Organisational learning is an area of knowledge within the field of organisation theory that studies models and theories about the way an organisation learns and adapts. In the public sector context, organisational learning has been defined as “the ability of an organisation to demonstrate that it can learn collectively by applying new knowledge to the policy process or innovation in policy implementation” (R. Common, “Organisational Learning in a Political Environment” (2004) 25 Policy Studies 35, 37).

Organisational learning occurs when individuals within an organisation experience a mismatch between intended and actual results and inquire into it on the organisation’s behalf. This inquiry seeks to uncover the reasons for the disparity and ways of restructuring activities and behaviours so as to reduce the risk of such a mismatch re-occurring. To become organisational, the learning and understanding that results from the inquiry should become be taken up not just by isolated individuals within an organisation; rather, it needs to become embedded within the organisation’s cultures and routines. Organisations learn when they identify appropriate lessons from history which are then encoded into routines that guide future behaviour.

Government agencies that engage in organisational learning would start from the position that they would seek to produce good, robust, and well-reasoned decisions. It is dubious to suppose that any government department could ever produce excellent decisions all of the time. The next option is for departments to engage in organisational learning. Departments could do this by collecting information on their decisions, interpreting its relevance, drawing out appropriate lessons, and then embedding those lessons within their memory and processes. Departments could positively seek out feedback on their decisions with a view to enhancing decision quality. An allowed appeal would be seen not as a defeat, but as a learning opportunity. As James Joyce once noted, “Mistakes are the portals of discovery“.

How can the standard of decision-making be improved?

The challenge facing departments is precisely how to engage in organisational learning in order to improve their decision-making. Departments are often poor at organisational learning, especially those engaged in mass-transaction processing. Consider, for instance, the problems over recent years that have affected the Department for Work and Pensions, HM Revenue and Customs, and UK Visas and Immigration.

The prevalent impression is that departments accord a low priority to decision-making and to organisational learning. They normally focus upon processing the entire volume of incoming decisions rather than producing good robust decisions in each case first time. Once a decision has been made, it is no longer the agency’s concern. Tribunals are seen as a safety-net for correcting poor decisions – or, at worst, an interference. There is also the question of incentives for individuals inside departments. For instance, in January 2014, it was reported that Home Office presenting officers had been set a target of winning 70 per cent of asylum appeals and were rewarded with gift vouchers – hardly conducive to ensuring good decisions.

There are, though, a number of way in which departments can engage in organisational learning to enhance the quality of initial decision-making and which are outlined here. First, if tribunals are allowing appeals because additional evidence is only being considered for the first time on appeal, then departments could seek to ensure that such information is collected during the initial processing stage. Departments could review decisions before they are sent out to ensure that the reasons given are adequate and they can introduce reconsideration systems which enable the claimant to present further relevant evidence. They could also introduce quality assurance mechanisms whereby senior caseworkers review a sample of decisions to ensure they are robust. It should go without saying that the operation of such processes should be transparent.

Second, departments could draw upon the large amount of information that already exists on their decision-making contained in tribunal decisions. Most of the time, when a tribunal decides an appeal, the decision will simply be inserted into the case file and that will be it. A tribunal decision will usually only be examined if the department is thinking about an onward appeal. Yet, this is to overlook an important source of feedback. As the Independent Inspector of Immigration has noted, “appeal determinations provide an essential source of feedback for decision-makers, which is likely to result in improved decision quality”.

Previous efforts by tribunals to report on the standard of initial decision-making have often been unsuccessful. Between 1998 and 2008, the President of social security appeal tribunals produced an annual report on the standards of decision-making. The Tribunal President, Judge Robert Martin told the Commons Work and Pensions Committee in 2010 that he believed no one within DWP had listened to the conclusions and recommendations detailed in his annual report.

However, the importance of tribunal feedback is increasingly recognised. In 2013, the Home Affairs Committee noted that the substandard quality of asylum decision making is compounded by the inability of case workers to learn from their mistakes. The Independent Chief Inspector Immigration recommended in 2009 that the Home Office analyse the reasons why it was losing appeals in order to improve the standard of decision-making, but that recommendation had not been fully implemented. Recognising that not all successful appeals are the result of poor decision making or administrative failure, the Committee recommended that decision-makers should view every successful appeal as a learning opportunity. When an appeal is upheld, the decision-maker should, as a matter of course, have this drawn to their attention and be given the chance to discuss the reasons for the appellate decision with a more experienced peer or senior colleague.

The Ministry of Justice is also giving greater focus on improving initial decision-making as part of its strategy on administrative justice. The most significant and developed feedback scheme to be introduced has been the summary reasons project in social security appeals. Since 2013, the Department for Work and Pensions has been working with HM Courts and Tribunals Service to improve feedback from the tribunal. The Tribunal has produced summary reasons in a number of allowed appeals. A sample of summary reasons was then been analysed by the Department. According to the Department, the project has demonstrated the value of collecting and analysing tribunal feedback, which has resulted in training for decision-makers, reviewing the guidance for decision-makers, looking to identify trends, and pulling out useful case studies. In July 2014, Work and Pensions Committee welcomed more extensive feedback from appeals through the provision of summary reasons by tribunal judges, but noted that the feedback must be used effectively by the Department to improve the initial decision-making process.

There are other mechanisms available. Presenting officers from departments can provide feedback to initial decision-makers – though a recurrent source of concern has been the declining levels of attendance at appeal hearings by presenting officers. Tribunals can produce guidance decisions on how problematic and complex factual, procedural and legal issues should be handled. They can also engage in dialogue with departments. The Senior President of Tribunals can also raise matters of concern in his annual report on tribunals.

Another mooted solution has been to introduce a polluter pays principles, that is, to have financial incentives for departments to produce better decisions by requiring departments to contribute to the cost of appeals by reference to the proportion of successful appeals. This idea has been widely raised discussed as an incentive to induce departments to produce better decisions – the Government does not appear to be keen upon it – but it could have a role to play.

Conclusion

The standard of initial decisions is variable, but government can improve by engaging in organisational learning. This requires departments consciously to assume responsibility to understand the causes of poor decisions, and to seek to improve. They should seek to identify appropriate lessons from both failures and successes and expand their capacity to learn from the past to improve for the future. In particular, tribunal decisions contain much useful data on the quality of decision-making and on the nature of decision-making. Departments should collect and analyse such feedback and enter into dialogue with tribunals and other bodies. Some have made initial efforts to learn from tribunals, but much more could be done. Only if departments are able to improve the quality of their own learning, will we then start to see better quality initial decisions.

Robert Thomas is at the School of Law, University of Manchester.

This blog draws upon a forthcoming paper in Public Law, available here.

Suggested citation: R. Thomas, ‘Administrative Justice, Better Decisions, and Organisational Learning’ UK Const. L. Blog (9th September 2014) (available at http://ukconstitutionallaw.org)

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Natasha Simonsen:Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says

MatricIn a judgment released yesterday a Divisional Court unanimously struck down the government’s attempt to introduce a residence test for eligibility for legal aid, finding it incompatible with the objective of the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’). The ratio of the judgment was that the residence test had been introduced via an amendment to the schedule in the Act (that is, via subsidiary legislation) that was not compatible with the objective of the primary legislation. While that sounds like a rather technical decision, it has important ramifications for democratic accountability. It means, in essence, that if the government wants to make such a drastic change as this, it will need to do so via an amendment to the Act itself, with the full Parliamentary debate that that would entail. The case is also interesting because of the two rights-based grounds that were argued before it. The first, that the introduction of a residence requirement violated the fundamental right of access to a court, the court declined to engage with. The second was that residence was not a lawful ground for discriminating in the provision of legal aid between equally meritorious claims. The court accepted this claim, but apparently in obiter dicta, since only the statutory construction point was strictly required to reach the outcome.

The ratio of the judgment

Lord Justice Moses (with whom Mr Justice Collins and Mr Justice Jay agreed) held that the introduction of a residence requirement as an amendment to Schedule 1 of LASPO was ultra vires because it was not compatible with the Act. The court identified the objective of the primary legislation as being to provide legal aid to those with the greatest need. The amendment, in contrast, had ‘nothing to do with need or an order of priority of need. It is, entirely, focused on reducing the cost of legal aid’ [43]. This violated the principle that subsidiary legislation must ‘serve and promote the object of the statute’ [40].

This is important because secondary legislation does not face the same degree of scrutiny in the Parliament as does primary legislation. While primary legislation needs to be approved by a majority of votes in both Houses of Parliament, and receive Royal Assent by the Queen, secondary legislation can be either negative or affirmative. If the former, the instrument becomes law without a debate or vote but can be annulled by a contrary resolution in the Parliament. If the latter, both Houses of Parliament must expressly approve them. The respondent government had argued that, since this amendment took the form of an affirmative instrument, it had received the imprimatur of the Parliament. Notwithstanding that, the Divisional Court found that was not enough because, ‘on a true construction of the statutory powers in their context, no power to introduce such a measure can be found’ [48]. The court’s ruling reaffirms the constitutional principle that the government cannot use the means of subordinate legislation as a ‘statutory back door’ [46] to ‘widen the purposes’ of legislation that has been passed by the Parliament [40]. Changes this big need to be brought through the front door.

The residence requirement, if upheld, would have limited legal aid to those who could demonstrate ‘a meaningful connection with the UK’, unless they could demonstrate eligibility elsewhere in the legislation. Yesterday’s judgment does not foreclose the possibility of that restriction being introduced in the future. But the Court’s intervention puts the onus on the Parliament to consider and evaluate the purpose of legal aid in the UK and the objectives that LASPO aims to serve. If the legal aid is to be subjected to the pursuit of goals other than giving help to those in greatest need, then those objectives need Parliamentary approval in the form of primary legislation.

Thus, in some ways the court’s decision handballs the question back to the legislature. But the terms of any future legislative debate will no doubt be framed by the discussion of the issues in the judgment. The court discussed some powerful examples, such as P, a severely disabled adult who was starved, beaten and forced to live in a dog kennel by his mother and brother. Yet, for various reasons, it would have been impossible to prove that he had been lawfully in the UK for a continuous period of 12 months at some point in the past, and thus he would not have satisfied the proposed residence requirements. It is hard to see how depriving a person in P’s circumstances of legal aid could meet the Ministry of Justice’s specified objective of ‘targeting legal aid at the most serious cases which have sufficient priority to justify the use of public funds.’

It remains to be seen whether the government will appeal the court’s decision, or introduce amended legislation to the Parliament. Either way, the judgment has forced a fuller engagement with the question of the purpose that the provision of legal aid serves in England and Wales. This is democratic dialogue—and a culture of justification—in action.

Rights-based argument one: access to courts

The questions that the court did not decide may be almost as important as the questions that it did decide. The Public Law Project had also argued that the power contended for by the Lord Chancellor would violate the fundamental right of access to a court. But Moses LJ declined to engage with this argument, stressing that his reasoning was ‘confined to the construction of the powers that [the statute] confers’ [50]. In another passage, however, His Honour hinted at the problems that might arise in future, saying that ‘it might have been possible to draft primary legislation (I say nothing about its legality) which has the broader ambition of cutting the cost of legal aid by permitting the Lord Chancellor to adopt criteria irrespective of need…’ [45]. This foreshadows a debate which is highly likely to arise in any future legal proceedings.

The Divisional Court might be engaging in a spot of careful judicial diplomacy here. At a time when tensions are running high over the UK’s future in the European Convention system, it may not come as a surprise that the judgment turned on a narrow question of statutory construction rather than the implications of the measure for the Article 6 ECHR right of access to a court. Moreover, throughout the judgment Moses LJ referred obliquely to ‘vindicating rights’ [75] or ‘fundamental rights’ [47], [50], preferring to avoid specific reference to Convention rights or Convention case law. In this language choice, was the Court cleverly hinting here that the right of access to a court is no less entrenched in English and Welsh common law than in ECHR jurisprudence?

Rights-based argument two: discrimination

Interestingly, having reached a decision that turned on a question of statutory interpretation, and then having declined to deal with the argument based on access to justice, the Divisional Court went on to consider a third argument raised by the applicant. The judgment went on to hold that residence would not be a lawful ground for discriminating between the provision of legal aid in equally meritorious cases. This part of the judgment will no doubt provide fertile ground for equality lawyers, and has been discussed at length here and here. Rather confusingly, given that it does not appear to be part of the ratio, Moses LJ described the discrimination argument as the applicant’s ‘essential complaint’ [51]. The discussion of residence as a basis for distinguishing between worthy claimants builds on (without expressly citing) the House of Lords decision in the Belmarsh case, striking down detention of foreign nationals on the basis that the measure was not rationally tailored to the objective.

What appellate courts will make of this judgment, and how the government will respond, remains to be seen.

 

 Natasha Simonsen is a Stipendiary Lecturer in Law at St Anne’s College, Oxford .

(Suggested citation: N. Simonsen, ‘Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says’ U.K. Const. L. Blog (17th July 2014) (available at http://ukconstitutionallaw.org/).

 

 

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Emily MacKenzie: Successful Challenge to Levels of Asylum Support – R (on the application of Refugee Action) v Home Secretary

Emily MacKenzie-Brick Court ChambersThe High Court recently upheld an important challenge in the field of asylum support. In June 2013, the Home Secretary decided that weekly cash payments to “destitute” asylum seekers in the 2013-14 financial year should remain frozen at the rate which had applied since 2011. In R (on the application of Refugee Action) v Home Secretary, Popplewell J quashed that decision, which now falls for reconsideration by the Home Secretary in light of the judgment.

The legislation provides that the cash payments are to cover “essential living needs” other than accommodation, which (including utility bills, council tax and basic furnishings) is provided for separately. However, as most asylum seekers and their dependents are prohibited from claiming benefits and from seeking work, the payments represent the sole source of income for these households.

The frozen weekly payments amount to £36.63 for a single adult, £43.94 for a single parent, £39.80 for 16-17 year olds and £52.96 for a child under 16 (although this does not apply to unaccompanied children, to whom separate provisions apply). Pregnant women and babies under the age of two receive additional payments of up to £5 weekly and pregnant women also receive a one-off maternity payment of £300.

The charity Refugee Action sought judicial review of the freeze on multiple grounds. While rejecting or declining to decide other grounds, Popplewell J upheld the claim for the following two reasons:

  1. In reaching her decision to freeze the payments, the Home Secretary left out of her consideration certain needs, which qualify as “essential living needs”.
  2. In setting the level of the payments, her analysis was flawed in several significant ways. For example, the fact that she proceeded on the “erroneous footing” that asylum support rates had increased in absolute terms by 11.5% when in fact they had decreased by that amount.

The case is an interesting read, not only on its own merits, but also because it raises at least two important constitutional issues: two-tiered standards of review and NGOs as judicial review claimants.

1. A two-tiered standard of review

In setting the level of asylum support, the Home Secretary had to conclude that the payments are adequate to meet “essential living needs”. It was therefore necessary for her to identify what living needs are “essential”. The claimants challenged her assessment, asserting that she had left out of consideration various items, which should be considered to qualify as “essential living needs.”

Faced with this challenge, the first question for the court is who gets to decide what is an “essential living need”? Is it an objective question (and thus suitable for the Court to define), or is it to be subjectively judged by the Secretary of State?

Popplewell J’s answer that it was both – and thus he outlined a two-tiered approach to reviewing the Home Secretary’s assessment.

It was an objective question insofar as the area had been the subject of an EU Directive, which imposes “minimum reception conditions” for countries receiving asylum seekers. The Marleasing principle (that national legislation must be interpreted in a manner which gives effect to EU law) therefore required that “[p]rovision for essential living needs . . . be interpreted as including, as a minimum, provision of the minimum reception conditions required by the Directive,” which conditions constitute an objective standard (para 85).

However, this is an example of a Directive setting a baseline minimum of protection. Essentially all that is required is that asylum support ensures respect for human dignity, maintenance of an adequate standard of health and that subsistence living needs are met. Most countries, including the U.K., go further in terms of providing for the destitute.

Popplewell J considered that once you exit the territory of the Directive and provide further guarantees, the question of what is an “essential” living need becomes a matter for the subjective assessment of the Home Secretary (para 90). The reason given is that what is “essential” (beyond the bare minimum, on which we can all agree) is “a criterion on which views may differ widely” and thus involves the making of a “value judgment”, which function has been conferred by Parliament on the executive.

The result of this is that, outside the territory of the Directive, the Home Secretary’s decision as to what constitutes essential living needs is only open to challenge on the Wednesbury standard of review.

The present case is an example, though, of a situation where the notoriously high Wednesbury hurdle was overcome because the Home Secretary had failed to take into account relevant considerations to a sufficient extent to vitiate her decision. Counsel for the Home Secretary accepted that certain items (including washing powder, cleaning materials and non-prescription medication) were essential living needs (para 99), yet the evidence was that they were not considered by the Secretary of State in her decision (para 100). Similarly, the provision of certain equipment for babies and new mothers was implicitly accepted as being essential because the governments asserted (incorrectly, the Judge concluded) that it was provided for by the extra payments made to pregnant women and children under the age of 2.

Further, Popplewell J was able to find that costs associated with the asylum application not covered by legal aid (para 104) and the cost of participating in social, cultural and religious life (para 113-116) fall within the ambit of the “minimum” conditions imposed by the Directive and thus are certainly deserving of consideration by the Secretary of State, if not precise delimitation by the court.

The case is thus an example of a two-tiered approach to review. Basic guarantees are not discretionary, meaning that the court can flex its interventionist muscles if it disagrees with the executive’s conclusion as to what is included. However, beyond that we are in the realm of discretionary decision-making, where the courts will back off and defer to the executive in the absence of irrationality.

This bifurcated approach to review is not particularly controversial, but is likely to structure future challenges in this sector. It will also make it very difficult to challenge a decision in the discretionary realm in a case where a proper process has been followed and errors such as were abundant on the facts of this case have been avoided.

  1. Judicial review challenges brought by NGOs

This case is an example of a successful claim by an NGO. The Government has been strident in its opposition to NGOs acting as claimants in judicial review (see Justice Secretary Chris Grayling’s most recent comments on the matter in The Telegraph). The Government’s earlier proposals for judicial review reform would have seen NGOs denied standing to bring judicial review claims. Fortunately, that proposal has been abandoned in the Criminal Justice and Courts Bill, but the latter still introduces numerous reforms to the costs regime that will cripple the ability of many organisations to take on the risk of litigation (see this earlier UK Constitutional Law Association Blog post by Ben Jaffey and Tom Hickman).

However, one should be careful before deploying this case as an example of why squeezing NGOs out of judicial review would be a bad thing. At several stages, Popplewell J makes clear that, in his view, the challenge was hampered by the fact that it was “general” in nature, as opposed to being “brought by an individual whose personal circumstances were in evidence” (para 43). For example, he ascribes the difficulties he has in determining what local authorities provide to asylum seekers as being:

“no doubt the result of the general nature of the present challenge, which led in the course of argument to hypothetical examples of particular individual circumstances giving rise to particular needs. Such hypothetical examples would have been easier to address on a case by case basis with the assistance of the specific applicable powers and duties of local authorities, and, importantly, evidence of how they were applied as a matter of policy and practice. Local authorities might have wished to be heard on some aspects. The result is that the following analysis has been undertaken on a less well informed basis and at a higher level of generality than I would have liked, and than would have been possible in a challenge by an individual whose personal circumstances were in evidence.” (Para 43)

Similarly, the Judge was unwilling to engage in the hypothetical that some asylum seekers might fall into a “gap” in protection in the absence of evidence that an actual person in that situation existed, concluding:

“there is no evidential basis on the current generic challenge for concluding that there are infirm children of asylum seekers whose additional non accommodation related essential living needs are not being met by local authorities and whose circumstances are not to be categorised as exceptional.” (Para 82)

If this case is used, as it should be, to illustrate the role of NGOs in bringing to light faulty decision-making by the government, it is likely that these dicta will be cited in an attempt to show that NGOs should not be using judicial review in this way. The criticisms can, however, be answered.

Part of the answer lies in the judgment itself. Whilst suggesting in the passages cited above that an individual challenge would have presented fewer difficulties, Popplewell J also criticises other parts of the evidence as coming from too few affected individuals. This is in relation to material that the claimant served evidencing the problems asylum seekers encounter under the current payments, such as having to miss meals and being unable to afford adequate clothing (para 133). Popplewell J commented that:

“…it is a partial body of relevant evidence, in both senses of the word. It can not properly be regarded as conclusive. The Claimant’s survey was based on the responses of a relatively small group and did not paint a homogenous picture. None of the material could be treated as demonstrably representative or beyond doubt.” (Para 134)

What this shows is that both evidence relating to the situations of specific individuals and wide-ranging survey evidence can be useful in challenging policy decisions in this sector. An NGO such as Refugee Action is best placed to collect both kinds of evidence. It is clearly more capable of collecting the wide-ranging “demonstrably representative” evidence than an individual challenger would be. However, arguably, it is also just as – if not more – capable of collecting evidence relating to the situations of a specific individual because it is more likely to be able to locate the relevant person. Indeed, the publicity attendant with bringing the claim in the first place might bring individuals out of the woodwork, whose situations would otherwise have remained unknown to the court.

Conclusion

This case has been lauded by some commentators as a “damning” judgment for the Home Secretary (see, for example, this post by Chris Yeo on the Free Movement Blog). Not only is it a landmark decision in this subject-area, it is well worth reading for its contribution to the discussion surrounding the appropriate standard of review in relation to policy decisions. And –perhaps most importantly – it is the latest example of a successful claim by an NGO bringing to light manifest failures in government decision-making that affects some of the most vulnerable in our society.

Emily MacKenzie is a barrister at Brick Court Chambers and is currently working as an International Law Fellow at the American Society of International Law

(Suggested citation: E. MacKenzie, ‘Successful challenge to levels of asylum support – R (on the application of Refugee Action) v Home Secretary’ U.K. Const. L. Blog (8th May 2014) (available at: http://ukconstitutionallaw.org/).

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Mark Elliott: Judicial Review Reform — The Report of the Joint Committee on Human Rights

MarkEarlier this week, the parliamentary Joint Committee on Human Rights has published its report on The implications for access to justice of the Government’s proposals to reform judicial review (HL 174 HC 868 2013-14). The report is, perhaps unsurprisingly, generally critical of the proposals and of the way in which they have been or are being introduced. I have already summarised the proposals and commented on some of them in earlier posts. In this post, I draw attention to some key passages in the JCHR’s report, commenting on them briefly and, at the end of the piece, offering some reflections on some of the underlying constitutional issues highlighted by the Committee.

The rule of law and the role of the Lord Chancellor

The JCHR is highly critical of the “politically partisan” way in which Chris Grayling, the Lord Chancellor and Justice Secretary, has sought to justify the proposed changes to judicial review:

In an article in The Daily Mail on 6 September 2013, the day on which the Government’s judicial review consultation was launched, the Lord Chancellor suggested that the rationale for the Government’s proposed reforms is that judicial review is being used as “a promotional tool by countless Left wing campaigners.” Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the Government’s political opponents, do not qualify as a legitimate aim recognised by human rights law as capable of justifying restrictions on access to justice, nor are they easy to reconcile with the Lord Chancellor’s statutory duties in relation to the rule of law.

The Committee concludes that as well as casting doubt upon the legitimacy of the reasons for the present reforms, the role played by the Lord Chancellor and Justice Secretary raises deeper constitutional questions about that combined role:

In our view, the Government’s proposals on judicial review expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice. This raises issues which should be considered by a number of parliamentary committees, including the Commons Justice Committee and the Lords Constitution Committee. We think the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice, and of the restructuring of departmental responsibilities between the Home Office and the Ministry of Justice that followed the creation of the new merged office.

The Committee raises an important point here; I offer some brief reflections on it, and on related matters, in the final section of this post.

Evidence

In making its case for reform, the Government has made much of the supposed increase in recourse to judicial review in recent years and decades. As my co-authors and I pointed out in the Bingham Centre’s response to the first set of proposals for reforming judicial review, the evidence base upon which the Government’s claims are made is very weak. In evidence given to the Committee, Professor Maurice Sunkin said:

if one leaves aside the immigration case load, the evidence does not show that there has been a substantial increase in the use of judicial review. In fact, the official statistics [...] reveal that, in non-immigration civil judicial reviews over the last 15 years or so, case numbers have remained fairly constant at just over 2,000 a year. [...] By any measure, that is not a large number compared with the number of decisions taken by Government annually.

Sunkin makes a compelling point (which, toghether with Varda Bondy, he makes at greater length in a blog post published in January 2013). The Committee concluded that the Government has not

demonstrated by clear evidence that judicial review has “expanded massively” in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate.

Procedural defects and substantive outcomes

As presently drafted, cl 52 of the Criminal Justice and Courts Bill will insert new provisions into s 31 of the Senior Courts Act 1981 such that relief in judicial review cases must be refused “if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. This would represent a substantial departure from current practice, whereby the threshold is set at the higher level of inevitability. I have argued elsewhere that this proposal is highly problematic. The JCHR has reached the same view, citing both constitutional and practical difficulties. As to the former, the Committee says:

We note that Lord Pannick, the Bingham Centre for the Rule of Law and Tom Hickman and Ben Jaffey, are all of the view that the proposed reform in clause 52 of the Criminal Justice and Courts Bill is objectionable for constitutional reasons, because it instructs courts to ignore unlawful conduct by public authorities, even where that unlawfulness is material in the sense that it might have made a difference to the outcome. We agree with this view: it is in the public interest for public bodies to make lawful decisions.

As far as the practical implications are concerned, the Committee endorses the following passage from the Senior Judiciary’s response to the Government’s consultation paper:

In a small number of cases it may be obvious that a procedural flaw can have made no difference to the outcome. In these cases, permission will be refused. However, in most cases, the decision whether a procedural flaw made a difference to the outcome cannot be taken without a full understanding of the facts. At permission stage the requisite full factual matrix is rarely before the court. As foreshadowed in question 13, an obligation to focus further on the no difference principle at the permission stage would necessarily entail greater consideration of the facts, greater (early) work for defendants, and the prospect of dress rehearsal permission hearings. It is difficult to see how this outcome could be avoided.

The Committee concludes that cl 52 should be removed from the Bill, and that, if the Government insists on retaining it, that it should be redrafted in order to reflect the current approach based on an inevitability threshold.

Legal aid

I have written elsewhere—in this post, and as co-author of the Bingham Centre’s response to a later Government consultation—about the implications of legal aid changes for judicial review and access to justice. I will not therefore seek to summarise the changes here. Suffice to say that the Committee expresses two major concerns. First, it argues that one of the key proposals is not justified by reference to reliable evidence:

We do not consider that the proposal to make payment for pre-permission work in judicial review cases conditional on permission being granted, subject to a discretion in the Legal Aid Agency, is justified by the evidence. In our view, for the reasons we have explained above, it constitutes a potentially serious interference with access to justice and, as such, it requires weighty evidence in order to demonstrate the necessity for it—evidence which is currently lacking.

Second, it raises an important constitutional concern about the way in manner of the enactment of the reforms:

We also regret the fact that the Government has chosen to bring forward by a negative resolution statutory instrument a measure with such potentially significant implications for effective access to justice … In our view, the significance of the measure’s implications for the right of effective access to court is such that it should have been brought forward in primary legislation, to give both Houses an opportunity to scrutinise and debate the measure in full and to amend it if necessary. The Government could have given both Houses of Parliament the opportunity to do so by including a provision expressly authorising the change in the Criminal Justice and Courts Bill which is currently before Parliament, Part 4 of which contains some other significant proposals for reforming judicial review.

Other matters

The Committee takes a dim view of the proposal concerning interveners. As presently drafted, the Criminal Justice and Courts Bill would introduce a presumption that interveners must pay their own costs and any costs involved by other parties resulting from their intervention—a presumption that is rebuttable only if there are “exceptional circumstances”. The Committee recommends that the present discretionary approach be preserved:

Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case. Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention.

The Committee also disagrees with the proposal to limit the availability of protective costs orders. While it welcomes some aspects of the proposals in this area, including the proposal to place PCOs on a statutory footing, the JCHR is concerned that the Government proposes to permit the making of PCOs only if leave to apply for judicial review has been granted. Criticising this aspect of the proposals, the Committee quotes with approval from the following submission it received from the Bingham Centre:

[D]efendants and interested parties not infrequently run up massive pre-permission bills, especially where the Defendant is a regulator or private body acting in a public capacity, or there is a private interested party. Cases may have pre-permission costs that comfortably exceed £30,000. The risk of unknown and potentially substantial pre-permission costs is a risk that those who would otherwise qualify for costs protection cannot possibly take. If a PCO cannot be obtained to protect against such a costs risk, very many claims with substantial wider public interest will not be brought. A PCO that cannot be obtained until it is too late to prevent the chilling effect of uncertain and unlimited costs exposure is a pointless PCO: it does not achieve the aim of enabling access to justice for those who cannot expose themselves to substantial costs risk. Here, again, the proposals appear to give with one hand (endorsing PCOs) but take back with the other through hidden financial disincentives that will in practice undermine PCOs and negate the attainment of the purpose they are intended to serve.

Finally, the Committee welcomes the Bingham Centre’s very recent report on Streamlining Judicial Review in a Manner Consistent with the Rule of Law, concluding that “the Government could go some way towards achieving its aims of reducing unnecessary cost and delay by other reforms which would make the process of judicial review more expeditious and therefore cheaper”.

Concluding remarks

The JCHR’s thoughtful analysis and sensible—if unsurprising—conclusions are to be welcomed. But perhaps more important, in the long term, than its conclusions in relation to individual aspects of the proposals are its comments, towards the beginning of the report and noted above, concerning the constitutional roles of the Lord Chancellor and Justice Secretary. Albeit relatively short, the history whereby those roles have emerged in their present forms is tortuous and complex. It has its roots in a botched Cabinet reshuffle undertaken by Tony Blair. Premised on the assumption that the centuries-old office of Lord Chancellor could be abolished via a Government press release, the reshuffle resulted in the departure from the New Labour government of Lord Irvine, Blair’s first—and the last old-style—Lord Chancellor. Irvine was succeeded by Lord Faulkner, who became both Lord Chancellor and Secretary of State for Constitutional Affairs.

At that point, the change was largely nominal, but reforms of a more seismic nature took place in 2007. The Department for Constitutional Affairs—which itself had only recently succeeded the Lord Chancellor’s Department—was replaced by the Ministry of Justice. This, however, was no mere rebranding exercise. Instead, it signified the transfer to the new Department of responsibility for swathes of policy that had hitherto fallen within the Home Office’s domain. The Lord Chancellor and Justice Secretary then assumed a more overtly political role, finding himself at the forefront of contentious policy areas including prisons and probation. Over time, therefore, the balance of emphasis within the combined Lord Chancellor/Justice Secretary role has changed, and the aspects of the role that relate to being a “regular” Minister have begun to eclipse those aspects that recall the traditional role of the Lord Chancellor as a guardian of constitutional propriety and judicial independence. It is perhaps no surprise that concerns of the type expressed by the JCHR in its recent report have arisen in a particularly acute form during the tenure of Chris Grayling, a non-lawyer for whom the Justice Secretary aspect of the role is clearly the more compelling one.

I think, however, that the issue goes even deeper than the tensions that are inherent in the Lord Chancellor/Justice Secretary role. Indeed, it is arguable that those tensions are merely superficial manifestations of more profound, and deeply-embedded, features of our constitutional architecture. That government Ministers (other, perhaps, than old-style Lord Chancellors) regard judicial review as an irritant is natural enough. Judicial review plays a key role in upholding the rule of law by ensuring that Government acts lawfully, and it is unsurprising that Ministers do not welcome adverse judicial rulings. In many legal systems, that courts are able to discharge such a role is a constitutional given, the relationship between the judicial and executive branches being a function of the terms of a written constitution over which no single organ of government has unilateral control.

In contrast, the system in the UK—in the absence of hierarchically-superior constitutional text capable of determining the balance of power between different governmental institutions—depends upon the courts and the executive exhibiting mutual respect for one another’s constitutional roles. Both the content of the Government’s recent judicial review proposals and the ways in which it has sought to introduce them evidence an erosion of executive respect for the courts’ constitutional function, and so a reluctance to observe the self-denying ordinance that previous governments—no doubt cheered on by old-style Lord Chancellors—have adhered to in the face of adverse judicial rulings. None of this is to suggest that there exists some sort of golden age in which the executive was entirely passive in the face of judicial admonishment—tensions between the executive and the judiciary are an inevitable and necessary feature of our system. It is, however, arguable that the present Government’s approach to judicial review reform evidences an unusually acute erosion of administrative respect for the courts’ constitutional role. If, therefore, the JCHR’s suggestion is taken up and there is a debate about the constitutional appropriateness of the combined roles of Lord Chancellor and Justice Secretary, it is to be hoped that these deeper, underlying issues about how to secure institutional comity within an unwritten constitutional order will form part of that debate.

Mark Elliott is Reader in Public Law at the University of Cambridge. He can be found on Twitter as @DrMarkElliott. This post originally appeared on Dr. Elliott’s blog Public Law for Everyone.

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Ben Jaffey and Tom Hickman: Loading the Dice in Judicial Review: The Criminal Justice and Courts Bill 2014

BentomPublic lawyers across the country are anxiously scrutinising yesterday’s response by the Lord Chancellor, Chris Grayling, to the Judicial Review consultation and the associated Criminal Justice and Courts Bill. They are seeking to ascertain the extent to which access to judicial review will be restricted and, in the case of many firms with legal aid contracts in public law, to see if whether their business will remain financially viable at all.

In a Guardian article today, Joshua Rozenberg has already portrayed the response as climb-down at least on many important issues. Whilst it is true that Government has moderated its position on several significant points in a welcome sign that the consultation did serve some purpose, the reforms being brought forward include some drastic changes with constitutional and access to justice implications.

The baton now passes to Parliament to stand up for the rule of law and for judicial review. We set out below where we consider the Parliamentary focus should be.

The overall message from Grayling remains depressing. There are many ways that judicial review can be improved, streamlined, made more effective, including for example by incentivising Defendants not resist permission in arguable cases, take bad points, string-out litigation until it becomes academic. But the Government is not concerned with any of this. All the proposals are directed at strangling claims and hobbling claimants.

The rhetoric is familiar. Judicial review has “extended far beyond its original concept”. Cases are “pursued as a campaigning tool” and are a “brake on growth”. Judicial review funders “sometimes remain hidden in the background”. Such comments portray Grayling as something of a conspiracy theorist, as an apparent believer that judicial review is being manipulated by shadowy forces to stymie Government policies. Grayling warns readers that “some of these measures may not be popular with those who benefit from the status quo”. Since the population in general benefits form the current system of judicial review there are indeed a lot of people who should find the changes unpalatable.

The key points are these (in no particular order):

1. Standing

The threatened abolition of public interest standing has been abandoned. But this is not because the Government has been persuaded of the merits of a flexible standing regime. “Rather, the Government’s view is that the better way to deliver its policy aim is through a strong package of financial reforms to limit the pursuit of weak claims and by reforming the way the court deals with judicial reviews based on procedural defects” (para. 35). In other words, the Government has recognised that there are very few cases where public interest standing is invoked and more effective way to curtail judicial review is to tie the purse strings.

2. The makes-no difference get out of jail free card

Clause 50 of the Bill provides that the court or Upper Tribunal must refuse relief if the it “appears to the court highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. The concept of “highly likely” is a novel one and lowers the bar from the test of inevitability that is currently applied at common law as a basis for refusing a remedy.

The constitutional implications are significant. If a decision maker refuses to give any reasons, gets the law completely wrong, acts unfairly, partially or even dishonestly, no remedy could be granted by the court even if the same decision might not have been reached had the defect not been made.

This is a departure from constitutional orthodoxy that the principal purpose of judicial review is to ensure that decisions are made properly by the person Parliament has designated to make the decision (not the courts). It will draw judges in to speculating on what decision would have been made had a defect not been present and thus the importance and weight of the defect to the decision (issues that courts have historically sought to avoid).

Even if the judge is not persuaded that it is “highly likely” that the same decision would be made, it may be difficult for a Defendant to give a fresh decision open-minded consideration and there will be further litigation about prejudgment.

An associated problem with the draft bill is that the courts would be precluded from granting any relief, thus preventing them from making a declaration that there has been a procedural violation but refusing to quash a decision or award substantive relief (which is often done for example in the context of challenges on the basis of the public sector equality duty).

Perhaps the most concerning aspect of the draft Bill on this issue is however clause 50(2) which would impose a requirement that the issue be considered at the permission stage. The intention appears to be to provide defendants with a get-out-jail free card to play at the permission stage, allowing them to submit evidence that the defect did not make any difference to the decision. As the Judiciary noted in their consultation response,  it will lead to lengthy, dress-rehearsal permission hearings with the service of evidence.

It is clear that the concern is not to make judicial review more effective or more streamlined, but a means of making it more difficult to pursue. A more effective way of dealing with “no difference” cases is for the Government to admit any error then agree to retake the decision. Instead, the Government will be incentivised to defend such claims. Courts will become embroiled in lengthy evidential disputes about a new defence of ‘makes no difference’.

3. Hidden backers and financial resources

 Claimants will be under a duty to provide the Court with information about their financial resources and sources of funding for the purpose of being taken into account when determining whom and to what extent costs should be ordered (clauses 51 and 52). The Government perceives that many judicial review claims are funded by third parties who are “in practice driving litigation”. The detail will be in regulations but the powers set out in the Bill, whilst they may deter some commercial judicial reviews where backers prefer anonymity, are reasonable. It is unclear whether a private litigant will have to fill in a legal aid style means form (they shouldn’t have to, and it might raise Article 8 issues). It is equally unclear whether the information will be handled confidentially (it should be, and the regulations could be defective if they do not protect personal privacy).

4. Protective Costs Orders.

There will also be codification of the law relating to Protective Costs Orders (“PCOs”) (clause 54). For the most part, the existing law has simply been restated. It is welcome that PCOs have been endorsed and will not be abolished. It is also welcome that the private interest requirement (originally set out in Corner House but since repeatedly disapproved in the case law) is nowhere to be found. The purpose of the codification seems to be to ensure that Claimants make full disclosure of their sources of funding and to ensure that PCO’s are only granted in cases raising points of general public interest. But this disclosure requirement is already the law: the duty of candour in judicial review works both ways. A Claimant applying for a protective costs order has always had to make frank disclosure of its actual and potential sources of funding and the costs it expects to incur. See R (Badger Trust) v Welsh Ministers [2010] 6 Costs LR 896 at [19] and Garner v Elmbridge BC [2012] PTSR 250 at [51-53].

There is however a serious problem with the PCO codification. As the Bill stands, a PCO could only be made if permission has been granted (clause 54(3)). But Defendants and interested parties not infrequently run up massive pre-permission bills, especially where the Defendant is a regulator or private body acting in a public capacity, or there is a private interested party. We have seen cases where such cases pre-permission costs have comfortably exceeded £30,000. The risk of unknown and potentially substantial pre-permission costs is a risk that those who would otherwise qualify for costs protection cannot possibly take. If a PCO cannot be obtained to protect against such a costs risk, very many claims with substantial wider public interest will not be brought. A PCO that cannot be obtained until it is too late to prevent the chilling effect of uncertain and unlimited costs exposure is pointless: it does not achieve the aim of enabling access to justice for those who cannot expose themselves to substantial costs risk. Here again we see that what the Government appears to give with one hand (endorsing PCOs) it takes back with the other through hidden financial disincentives that will in practice undermine PCOs and negate the attainment of the purpose they are intended to serve.

There is also a Henry VIII provision tucked away at clause 54(9) giving the Lord Chancellor power by regulations to add, omit or amend matters “to which the court must have regard when determining whether proceedings are public interest proceedings”. It is not obvious why the Lord Chancellor, rather than the Courts, should have the final say on the principles governing costs orders affecting access to justice and this could also be used as another means of effectively squeezing-out meritorious public interest claims. Parliament needs to address both of these provisions and ensure PCOs provide a practical and effective access to justice tool.

5. Death of interventions

Another provision on which it is hoped Parliament will see fit to amend is that relating to interveners. As things stand the court decides whether to allow a third party to intervene, is able to restrict the evidence and submissions made by the intervener and has a general discretion as to costs. However since the purpose of an intervention is to assist the court, particularly where a case raises wider issues than relate to the parties themselves, the court will generally not order an intervener to pay the costs of its intervention (and quid pro quo an intervener will not recover their costs). But if their intervention is unreasonable or misguided they can expect to have a costs order against them. As the Judicial response to the consultation noted, the fact that such orders are rarely made “reflects the expertise of the court that, not uncommonly, it benefits from hearing form third parties.”

NGOs big and small regularly provide beneficial interventions in judicial review proceedings usually attracting leading solicitors and barristers acting on a pro bono basis (eg Amnesty, Bail for Immigration Detainees, Mind, Liberty, PLP, UNHCR, JCWI, etc ) And the Secretary of State often intervenes, sometimes because the case is important (e.g. R (E) v JFS [2009] EWCA Civ 681 – subsequently appealed to the Supreme Court) and often because the compatibility of primary legislation with the ECHR is in issue (e.g. R (Roberts) v Commissioner of the Metropolitan Police [2014] EWCA Civ 69).

There are many cases in which courts have expressed gratitude to the assistance provided by an intervening party. See e.g. “the extremely helpful intervention” of UNHCR in the recent judgment of the Supreme Court of IA [2014] UKSC 6. Often interventions support the position of the Defendant. Recent examples include Ladele v London Borough of Islington [2009] EWCA Civ 1357, where the Court of Appeal accepted submissions made by Liberty going further than the Defendant contended and several of the intervening parties in the Jewish Free School case: R (E) v JFS [2009] EWCA Civ 681.

But if Parliament enacts Clause 53(4) of the Bill it will in our view bring to an end public interest interventions in judicial review proceedings below the Supreme Court. It provides that the High Court or Court of Appeal “must order the intervener to pay any costs specified” by a party or interested party that have been incurred “as a result of the intervener’s involvement”. The court is only permitted to refuse to make such an order in “exceptional circumstances”. Contrast Rule 46(3) of the Supreme Court rules:

(3) Orders for costs will not normally be made either in favour of or against interveners but such orders may be made if the Court considers it just to do so (in particular if an intervener has in substance acted as the sole or principal appellant or respondent).

By requiring interveners to pay not just their own costs but the Government’s (and other parties’) costs too, it is very unlikely that, if clause 53(4) is enacted, the High Court or Court of Appeal will in future receive assistance from NGO interveners, to the detriment of the courts and law. Intervening parties will not intervene if there is a significant risk of an adverse costs award – they most often can’t pay for their own legal team who, as noted above, frequently act pro bono. Many will only intervene if the Court grants them costs protection in advance, which it would be prohibited from doing if the Bill is passed in its present form. This is in effect a disguised prohibition on NGO intervention, achieved again through the indirect route of financial disincentives.

It is hoped that Parliament will ensure that the power of courts to award costs rests where it properly belongs: in the discretion of the court.

6. Pre-permission costs.

The proposal that causes a number of public law legal aid firms to fear (rightly) for their continued viability was the proposal that if permission is not granted or if a case settles pre-permission, the legal aid agency should be required not to pay the solicitors and barristers who brought the case.

The Government has softened on this proposal a little and has said that where cases settle the legal aid agency will have a discretion to pay in meritorious cases. Apart from anything else, without such a provision there would be no incentive for publicly funded litigants to settle cases pre-permission.

Even so, the situation is draconian and runs against the grain of the Government wanting the permission threshold to be real and substantial threshold that not only weeds out hopeless claims but provides a swift summary determination of properly arguable complaints of government wrongdoing. The position taken by the judiciary in its consultation response is surely right in principle, namely that, 

The costs of permission application should not be recoverable if the judge certifies that the application is totally without merit, costs of the application be funded in the usual way.

The most extreme position the Judiciary was prepared to countenance involved a “safeguard” by which the judge could direct that practitioners not have their funding slashed if a claim has been properly arguable. Even this bottom-line position has not materialised.

Many consultation responses pointed out to the Government that the effect of this provision was likely to be make permission judges more reluctant to refuse permission in legally aided cases that raise serious points. One would think, given the Government’s stated objectives, that the Government would not want to provide such a disincentive to refusing permission. It can only be inferred that the Government is attracted by a wider objective of hitting legal aid solicitors where it hurts.

7. Costs of oral permission hearings

As things stand, a claimant is entitled to renew an application for permission orally at a short hearing. A defendant does not have to turn up. But if they do turn up, on Mount Cook principles, generally will not recover their costs. The Government will change this to entitle a successful defendant to costs. It marks a further shift from permission as a low-cost filter to a high-stakes mini-trial.

This has troubling implications when combined with a statutory prohibition on a PCO before permission has been granted because the costs of the permission stage become even more prohibitive.

This is all particularly unjustifiable since the Government has not heeded calls by many who responded to the consultation that if the Defendant chooses to contest permission but permission is granted the Defendant should pay costs (there is no costs consequence unless the Claimant goes on to succeed at the substantive hearing). This means that defendants get a free ride and have no reason not to contest permission, with all of the delay and expense that is involved.

A more balanced package of reforms would recognise that there is also a problem with some Defendants taking an unrealistic approach and contesting permission, which they do in almost every case, however meritorious. An incentive to encourage permission to be conceded in appropriate cases would go some way to solving that problem. But as we have pointed out already, many of these reforms are not about making judicial review more efficient or effective.

8. Leapfrog appeals

Clause 32 to 35 of the Bill will make leapfrog appeals to the Supreme Court easier, although will still require the consent of the Supreme Court. For the first time, there will be leapfrogs from SIAC, the EAT and the Upper Tribunal. This, at least, is sensible and welcome.

Conclusion

Our discussion has sought to highlight some of the most significant aspects of the Government’s reform proposals without seeking to cover all of them. There are also important changes in the context of planning, for instance, which we have not addressed.

There is no doubt that judicial review procedure can be improved, incentives can be rebalanced, and more can be done to ensure that strong cases of government abuse of power proceed whilst weak cases do not. But the Government’s reform proposals are not properly directed at these questions and are instead directed at seeking to restrict access to judicial review and to load the dice in the favour of defendants. Attention now turns to Parliament. It hoped that Parliament will recognise that central to what the courts do in judicial review cases is enforcing its legislation and its will. If it appreciates that then it may be very concerned about a number of the Government’s proposals. 

Ben Jaffey is a Barrister at Blackstone Chambers.

Tom Hickman is a Barrister at Blackstone Chambers and Reader in Public Law UCL.

 Suggested Citation: B. Jaffey and T. Hickman, ‘Loading the Dice in Judicial Review: The Crime and Courts Bill 2014.’ U.K. Const. L. Blog (6th February 2014)  (available at http://ukconstitutionallaw.org).

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Cormac Mac Amhlaigh: Once More Unto the (Public/Private) Breach …: s. 6 of the Human Rights Act 1998 and the Severability Thesis

cormacTwo interesting recent blog posts dealt with the meaning of public and private under  s. 6 of the Human Rights Act 1998.  They were motivated by injunction proceedings in the High court whereby the Olympic Delivery Authority, (ODA) the body charged with the logistics and infrastructure of the London Olympic Games, had sought injunctions to restrain protestors from entering and occupying land which was to be developed as part of the Olympic site.  The main issues emerging from this case discussed in the two posts was whether the ODA constituted a ‘core’ or ‘hybrid’ public authority under s. 6 HRA; whether it could itself enjoy human rights to defeat or counter any human rights obligations it may hold in its capacity as a ‘hybrid’ body exercising public functions; and where the ‘centre of gravity’ for determining the human rights obligations of hybrid bodies lay under the Act; under the  s. 6(3)(b) ‘public function’ test or the definition of ‘private act’ under s. 6(5).

In this post, I wish to contribute to the discussion on the third point by highlighting a common essentialist fallacy in approaches to the meaning of ‘public’ under the HRA which leads to circular, question-begging conclusions.  This essentialist fallacy is problematic on its own terms but also has a bearing on the relationship between s. 6(3)(b) HRA and s. 6(5) HRA.  Avoiding the essentialist fallacy requires reading the term ‘private acts’ under s. 6(5) within the context of public functions under s. 6(3)(b) and as such, the post concludes that s. 6(5) cannot stand alone as a ground for determining the human rights obligations, or immunities, of hybrid bodies.

The Severability Thesis

Perhaps the main point of disagreement between the two previous posters on this topic was the question of the relationship between s. 6(3)(b) and s. 6(5) HRA.  As is well known, s. 6 creates a legal obligation on public authorities to act compatibly with the rights contained in the ECHR, and s. 6(3)(b) extends the meaning of public authority to ‘any person  certain of whose functions are functions of a public nature’.  s. 6(5) furthermore states that ‘In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private’.  This has resulted in a classification of two types of body which are subject to human rights obligations under the act:  ‘core’ and ‘hybrid’ bodies. (See Lord Nichols, para.11 in Aston Cantlow PCC v. Wallbank [2003] UKHL 37).  Defining the human rights liabilities of hybrid bodies, moreover, raises the question of what can be called a ‘severability thesis’; that is, whether s. 6(5) is severable from s. 6(3)(b) such that it constitutes a separate head of analysis for determining the human rights liabilities of particular hybrid bodies.   If it is not severable, s. 6(5) simply serves to compliment an analysis of the functions of hybrid bodies by simply reinforcing the ‘hybridity’ of the body in order to distinguish it for ‘core public authorities’.  As such, the notion of ‘private acts’ under s. 6(5) is assimilated into a broader analysis of the ‘publicness’ of the functions of a hybrid body under s. 6(3)(b).    If the two provisions are severable, then a two-stage test to assess the human rights liabilities of hybrid bodies is necessarily; firstly to determine whether the hybrid body undertakes ‘functions of a public nature’ and then a further analysis to determine the ‘privateness’ of the act which was taken pursuant to the public function.    Moreover, as well as adding another limb to the test of the human rights liabilities of hybrid bodies, the severability thesis also, significantly, shifts the ‘centre of gravity’ on the human rights liabilities of hybrid bodies from s. 6(3)(b) and the definition of ‘public functions’, to s. 6(5) and the definition of private ‘acts’, where s. 6(5) and not s. 6(3)(b) provides the ultimate litmus test to determine the human rights liabilities of these bodies.  On this analysis, even if a hybrid body is not deemed to be discharging a public function under s. 6(3)(b), it can still be caught if it is found that the nature of the act which caused the alleged human rights violation was public and vice versa.

The severability thesis was a significant point of disagreement between the two previous posters.   David Mead seemed persuaded by the severability thesis, claiming that s. 6(5) can be read narrowly to warrant an independent analysis on the question of the ‘privateness’ of the act which is separate from ,and can defeat, the analysis for ‘public function’ under s. 6(3)(b) relying on statements from the Court of Appeal in Weaver in support.    Alexander Williams, on the other hand, explicitly refuted the severability thesis, arguing that the centre of gravity of the human rights liabilities of hybrid bodies lies with s. 6(3)(b) and not s. 6(5).  Evidence of this, he argues, can be found both in the failed attempt by Elias LJ in Weaver to apply the two-stage test implicit in the severability thesis, as well as Parliament’s intention in drafting the provision.

Beyond the blogosphere, the severability thesis has gained some traction from the bench, not least from one of the leading cases on s. 6; YL v. Birmingham City Council.  In this case, Lord Scott, for example, argued that:

“[t]he effect of [s. 6 HRA] is that an act (or an omission) of a private person or company that is incompatible with a Convention right is not unlawful under the 1998 Act … unless the person or company has at least some “functions of a public nature”; but even if that condition is satisfied the private person or company will not have any liability under the 1998 Act if the nature of the act complained of was private.” (para. 23, Emphasis Added).

  In the same case, Lord Neuberger found that :

“In my view, both as a matter of ordinary language and on a fair reading of [s. 6], there is a difference between “functions”, the word used in s. 6(3)(b) and “act[s]”, the word used in section 6(2) and (5) […].  The former has a more conceptual, and perhaps less specific, meaning than the latter.  A number of different acts can be involved in the performance of a single function.  So, if this appeal succeeds, a proprietor … would be performing a “function”, which, while “of a public nature”, would involve a multitude of acts, many of which would be private … a hybrid public authority is only bound by section 6(1) in relation to an act which is (a) is not private in nature and (b) is pursuant to or in connection with a function which is public in nature.” (para.  129, Emphasis Added)

The two-stage test to determine the liabilities of ‘hybrid bodies’ is clear from this latter judicial endorsement of the severability thesis; firstly it must be ascertained whether the function being discharged was a ‘public’ one within the meaning of s. 6(3)(b), and secondly, it must be determined that the impugned act which gave rise to the alleged human rights violation was not private.  Furthermore, this two-stage test, as Lord Neuberger noted, requires a distinction between functions and acts.  This means, as Elias LJ noted in Weaver, that:

“ …  Not all acts concerned with carrying out a public function will be public acts.  Conversely, it is also logically possible for an act not to be private act notwithstanding that the function with which it is most closely connected is a private function, although it is difficult to envisage such as case.  Such situations are likely to be extremely rare.” (para. 28).

In the remainder of this post I will join the side of those arguing against the severability thesis by showing how it relies on a problematic essentialist fallacy which is best avoided.

The essentialist fallacy

            The essentialist fallacy relates to the notion that concepts such as ‘public functions’ or ‘private acts’  have some natural referent in the real world betraying certain essential properties which automatically determines their public or private character.  That is that whether something  (e.g. a relationship, an act, function etc.) is to be deemed public or private relates to the ‘essential nature’ of the thing itself which is in some sense self-evident.  The fallacy was alluded to, albeit obliquely, by Lord Neuberger in YL when he noted that:

            “Any reasoned decision as to the meaning of s. 6(3)(b) risks falling foul of circularity, preconception, and arbitrariness. The centrally relevant words, “functions of a public nature”, are so imprecise in their meaning that one searches for a policy as an aid to interpretation.  The identification of the policy is almost inevitably governed, at least to some extent, by one’s notions of what that policy should be, and the policy so identified is then used to justify one’s conclusion.” (para. 128).

 As I have argued elsewhere, it affects other areas of the HRA, however for current purposes I will focus on its expression with respect to the question of the relationship between s. 6(3)(b) and s. 6(5) HRA.   In Aston Cantlow, in determining the potential human rights liabilities of a Parochial Church Council suing landowners for the cost of repairs of the chancel of a local parish church, several of the bench fell foul of the essentialist fallacy with respect to question of the nature of the acts which constituted the alleged human rights violation.  Having considered the functions of the Parochial Church Council, for example, Lord Hope argued that the nature of the act was that of ‘seeking to enforce a civil debt’ (para 64) which was a ‘matter of private law’ (para. 71).  In the same decision, Lord Hobhouse found that the act in question was  ‘the enforcement of a civil liability’  (para. 89).  Such liability, moreover, was one which ‘arises under private law and which is enforceable by the PCC as a civil debt’. (para. 89).  These considerations were part of the basis of the finding that the act in question was a private one which contributed to the finding that the PCC did not hold human rights obligations under s. 6.   Similarly in YL, Lord Scott, looking at the nature of the act which gave rise to the litigation against a privately owned and run care home by a resident who was being evicted, argued that:

 “the service of a notice terminating the agreement under which YL was contractually entitled to remain in the care home, the notice was served in purported reliance on a contractual provision in a private law agreement.  It affected no one but the parties to the agreement.  I do not see how its nature could be thought to be anything other than private.”  (para. 34).

  In the same case, Lord Neuberger found that:

“[t]he liability of Southern Cross to provide Mrs. YL with care and accommodation in the present case similarly “arises as a matter of private law“.  That is illustrated by the fact that Mrs. YL (or her relatives were) free to choose which care home she went into, and took advantage of that right by selecting a care home more expensive than Birmingham was prepared to pay for … the services provided in this case are very much of a personal nature, as well as arising pursuant to a private law contract between Southern Cross and Mrs. YL”  (para. 168).

In these examples, we can see essentialist fallacy at work.  For each of their Lordships,  the nature of the acts in question, namely the enforcement of a civil debt and a notice to terminate a contractual agreement, were governed by private law and therefore were, by implication, private acts within the meaning s .6(5).  There is therefore a loose and fluid equation of meanings of ‘privateness’ between different contexts. However no explanation or justification of what private law constitutes, nor how this matters for the determination of ‘private acts’ under s. 6(5) HRA is proffered.  It is presented as intuitive or somehow ‘self-evident’.  This is problematic as, it leads, as Lord Neuberger himself acknowledged, to circularity.  To claim, as their Lordships have done, that the enforcement of a civil debt or the enforcement of a contractual provision is inherently private and therefore a ‘private act’ under s. 6(5) is simply to beg the question.  This circularity, moreover, runs the risk of subjectivity in determining ‘privateness’ under the Act as well as, perhaps more problematically, as Neuberger noted, arbitrariness.

It could, of course, be argued that it is relatively common knowledge that contracts between private parties involving the purchase of land or a tenancy agreement are examples of private acts par excellence given that they form the core of what most people would consider private law as a field of law.  Therefore we can reason by analogy that they would fall under the definition of ‘private acts’ under s. 6(5).   However, this reasoning by analogy is not unproblematic.  Firstly, resistance to the classification of   the enforcement of a civil debt for chancel repairs as a naturally and inherently private act came from within the court itself in  Aston Cantlow.   Lord Scott, for example, argued that ‘chancel repair obligations’ in the case had an ‘unmistakable public law flavor to them’. (para. 131)  Secondly, privateness, including privateness in the law, is neither natural nor self-evident but is necessarily context dependent.  Sometimes even prima facie naturally or intuitively private branches of law such as property law can be public.  A good example of this is the US Supreme Court Case of Shelly v. Kramer (334 U.S. 1 (1948)) where the Court found that the enforcement of a racially discriminatory restrictive covenant over land – surely the most intuitively private branch of law; property law – was considered to be a public act in the form of a ‘state action’ given the fact that, in the final analysis, it was ultimately enforced by a Court, which can (and indeed in the HRA is) considered a public authority.  On this logic, then, all private law can conceptually enjoy a public character given that it will ultimately be enforced by a public body, a court.  Thus the essentialist fallacy erroneously assumes an ‘essence’ of publicness or privateness in the law which is imminently contestable.

The essentialist fallacy also conflicts with the ‘sui generis’ nature of publicness and privateness under s. 6.   Academic commentary and the Courts themselves have warned against the importation of conceptions of publicness or privateness from other areas of law into the HRA in order to determine the human rights liabilities of core and hybrid  bodies under the act.  For example,  Lord Nicholls in Aston Cantlow noted  that:

“The word “public” is a term of uncertain import, used with many different shades of meaning:  public policy, public rights of way, public property, public authority (in the Public Authorities Protection Act 1893), public nuisance, public house, public school, public company.  So in the present case the statutory context is all important.  As to that, the broad purpose sought to be achieved by section 6(1) is not in doubt.  The purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatible with Convention rights.”  (para. 6, Emphasis Added).

There are numerous other admonitions, both judicial and academic, against importing conceptions of the ‘public’ from, for example, bodies subject to judicial review, ‘emanations of the state’ under EU law, The Race Relations Act 1976 or the Freedom of Information Act 2000, in order to determine the concept under s. 6 HRA.  (See generally, D. Oliver, ‘The Frontiers of the State:  Public Authorities and Public Functions Under the Human Rights Act’ (2004) Public Law, 476.) This has to do with specific purposes of the HRA itself; to ensure the enforcement of human rights ‘at home’ rather than at Strasbourg.  If this is the case, then, importing ‘naturalistic’ understandings of ‘privateness’ from personal intuition or political preference, or from designations of publicness or privateness with different taxonomic or pedagogical purposes, is particularly problematic.

So what has all of this to do with the severability thesis and the relationship between s. 6(3)(b) and s. 6(5) HRA which was the subject of the dispute between the two previous posters?  Well, if it is the case that the essentialist fallacy is to be avoided, and it is argued that there are many good reasons why it should be, we should be sensitive to the contextual nature of ‘publicness’ and ‘privateness’ under s. 6 HRA.  Avoiding the essentialist fallacy, therefore, requires recognizing that the meaning of ‘publicness’ and ‘privateness’, as Lord Nicholls above suggested, is context-dependent. These terms have no independent meaning outside of the specific legal context within which they appear. Against this backdrop, the relevant context which can give meaning to the term ‘private acts’ under s. 6(5) is that of the public function under s. 6(3)(b) pursuant to which the particular (putatively private) act was taken.  The nature of the act itself under s. 6(5), given that it is not inherently public or private, will always be conditioned by the function which governed the act.  Thus, as Elias LJ himself discovered in Weaver when attempting to apply the severability thesis, s. 6(3)(b) and s. 6(5) are relational such that the finding of a public function under the former will have a bearing on ‘privateness’ of the act under the latter. In this sense, they are two sides of the same coin.

 Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh and a visiting Fellow at the Faculty of Law, University of Copenhagen.

   

Suggested citation: C. Mac Amhlaigh,  ‘Once More Unto the (Public/Private) Breach …:  s. 6 of the Human Rights Act 1998 and the Severability Thesis’   UK Const. L. Blog (13th December 2013) (available at http://ukconstitutionallaw.org)

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Philip Murray: Natural Justice at the Boundaries of Public Law

PhilipThe intention of this post is a simple one: to assess the ways in which natural justice arguments have historically been raised in private law proceedings. By “natural justice” I mean those common law principles requiring a fair procedure and an unbiased tribunal when powers are exercised. Ordinarily, of course, natural justice arguments arise in judicial review proceedings against public bodies in the Administrative Court or Upper Tribunal, usually when those bodies are exercising a statutory power. But to what extent can it be argued that a private body, in its private relations with private individuals, has acted unlawfully by making decisions in a procedurally unfair manner?

Initial clarity

Until around the late 1920s, the law was pretty clear on when natural justice principles could be invoked in private law proceedings. An important distinction was made between proceedings in equity and proceedings at common law. In equitable proceedings for a declaration or injunction, natural justice principles could be invoked when the plaintiff wished to challenge the exercise of trust powers and other fiduciary powers. At common law, the action would invariably be brought for damages, although from 1883 a declaration could also be sought. Natural justice arguments at common law would arise primarily on the basis of a breach of contract, normally with some sort of implied term being read into the contractual relationship between the plaintiff and defendant requiring certain principles of natural justice to be followed. Natural justice arguments would occasionally arise in proceedings founded on the tort of conspiracy, too, though the limited circumstances in which conduct amounting to conspiracy could be established minimised reliance on this tort.

With regard to proceedings in equity, it is clear that there need not be a contractual relationship between the parties for natural justice arguments to be invoked. The rules of natural justice were conceptualised as freestanding equitable principles governing the exercise of powers. This can be seen most clearly in the case of Dawkins v Antrobus (1881) 17 ChD 615. In that case, the plaintiff had been expelled from the Travellers’ Club under a rule of the club that allowed a majority of members to expel a member who conducted himself in a manner that brought the club into disrepute. The plaintiff challenged his expulsion in the Chancery Division, seeking an injunction and declaration on the ground that insufficient notice of the charge made against him had been given. These arguments were not the primary concern of Sir George Jessel MR at first instance, but they were considered in detail in the Court of Appeal. The judgment of Brett LJ is especially clear in setting out when natural justice principles could be invoked. Brett LJ envisaged three ways in which the decision of the club members to expel the plaintiff could be looked at: (i) to see whether they had acted in accordance with the rules of the club; (ii) to see whether those rules themselves complied with the requirements of natural justice; and (iii) to see whether their conduct, though within the four corners of the rules properly interpreted, could nonetheless be described as mala fide (at 630). More importantly, natural justice arguments would not just be relevant in the second type of challenge. Even if the rules accepted amongst the members of the club were, in principle, compatible with the rules of natural justice, natural justice principles could also be invoked when considering whether the members’ conduct was bona fide. In particular, Brett LJ said that “there would be a denial of natural justice if a decision was come to without [the plaintiff] having an opportunity of being heard” (630, see also Cotton LJ at 634 and 636).

The possibility of seeking an injunction or declaration in equity for breach of freestanding principles of natural justice thus coincided with, but was conceptually distinct to, the possibility of bringing an action at common law for damages on the basis of some express or implied term in a contract between the parties. These were two distinct areas of case law: the conceptual bases of the natural justice principles (“equity”/“contract”) and the remedies that were available (injunction and declaration / damages and declaration) were very different.

Blurring the lines

The clear picture outlined above came to be muddied in the middle decades of the twentieth century. In a series of cases the courts came to emphasise the necessity of a contract in all private law proceedings in which natural justice principles were invoked, regardless of whether those proceedings were for damages (or, more frequently, a declaration) at common law or for an injunction or declaration in equity.

The case law started to become confused in Maclean v The Workers’ Union [1929] 1 Ch 602. In that case, Maugham J, sitting in the Chancery Division, emphasised that where a contract between the parties set out procedural rules governing the parties’ exercise of their powers, then the courts could not invoke standalone natural justice requirements to supplement the rules the parties had themselves agreed (at 623-625).

The approach in Maclean still preserved the possibility of invoking freestanding natural justice principles in (very rare) cases where there was no form of contractual agreement between the parties. However, the effect of Maugham J’s decision was to make natural justice principles subservient to, and subject to ouster by, contractual agreements. This approach might have been justifiable on the basis of freedom of contract: private parties should be free to dispense with any procedural protections the law would ordinarily impose on their dealings, if that is their intention. But given the sort of body against whom these private law natural justice claims were being brought – bodies like trade unions and sporting regulators, who exercised, through contract, some sort of de facto monopolistic control over less powerful individuals – there was always a degree of artificiality in such reasoning.

Nonetheless, the law’s preference for a contractual approach to natural justice continued to dominate. The highpoint in this came in Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762. An injunction and declaration were sought in the Chancery Division against the decision of the defendant, a limited company established to protect film distributors, that its members should no longer supply films to the plaintiff’s cinemas. It was argued that this decision was made on the basis of an unfair procedure. It was accepted by the plaintiff at trial that there was no contract between himself and the defendant. Nonetheless, it was argued that natural justice arguments could be invoked in proceedings in equity. This argument was rejected by Harman J who said, “the existence of some contract is essential”. The possibility of introducing natural justice principles in equity where there was no contract between the parties was thus emphatically rejected.

Beyond contract

The problem with the exclusively contract-based approach to natural justice arguments, as established in Byrne, was that contracts between private individuals seldom set out elaborate requirements of fair procedure to govern the relationships of the parties to the contract. The possibility of bringing an action for breach of an express term was, therefore, practically non-existent. Actions based on implied terms requiring fair procedures were equally fraught with difficulty. The criteria under which the law allowed for the implication of contractual terms meant that such terms would be implied rarely: it would be unusual for the extensive requirements of natural justice to satisfy the “officious bystander” or “business efficacy” tests. The role of natural justice arguments outside the judicial review process was thus much restricted by Maugham J’s judgment in Byrne.

The limitations of the law of contract fuelled two important dissenting judgments of Denning LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 and Abbott v Sullivan [1952] 1 KB 189, both in the Court of Appeal. Both of these cases involved actions for breach of contract. Yet in both cases Denning LJ objected to the limited, contract-focussed approach the majority judges took when addressing natural justice arguments. Denning LJ, manipulating the boundaries of law and equity, called for a generous reliance on the principles of natural justice across the law, basing his approach on Dawkins v Antrobus.

Eventually Lord Denning was given the opportunity of vindicating this approach in the important case of Nagle v Feilden [1966] 2 QB 633. A decision of the Jockey Club to refuse the plaintiff a horse trainer’s licence simply on the grounds of her gender was challenged on the basis that it was against public policy, and thus unreasonable. Because this was a case where the plaintiff had applied for a licence, rather than one where the plaintiff was deprived of a licence she already had (cf. Russell v Duke of Norfolk), it could not be said that there was any contract between the parties through which “public law” principles like natural justice or unreasonableness could be mediated. However, while Lord Denning MR accepted that a contract had to be alleged where a claim was brought for damages for breach of contract, he expressly said that principles of natural justice, unreasonableness, and so on could be invoked irrespective of contract where a declaration was sought. Looking back over the previous case law, he saw the invocation of contracts as often being “fictitious” (646). The true ground in these cases, he said, was “a man’s right to work”: that right could be protected by the law, independent of any implied term in a contract.

Lord Denning MR affirmed his approach five years later in Enderby Town FC Ltd v Football Association Ltd [1971] 1 Ch 591. That case, and Nagle v Feilden, were accepted by Megarry V-C in McInnes v Onslow-Fane [1978] 1 WLR 1520 – an ordinary private law claim for an injunction – as establishing that courts are “entitled to intervene in order to enforce the appropriate requirements of natural justice and fairness” (1528), even where, as in McInnes itself, there was no contract between the parties.

The modern law

Nagle v Feilden and McInnes v Onslow-Fane thus recognised the continued possibility of invoking natural justice arguments in private law proceedings even where no express or implied contractual term bound the parties to respect those principles. While Hoffmann LJ, obiter, doubted the correctness of Nagle v Feilden in R v Jockey Club, ex parte Aga-Khan [1993] 1 WLR 909 (at 933), the non-contractual basis of natural justice principles outside the judicial review process has nonetheless continued to be recognised in the subsequent case law. In Modahl v British Athletic Federation Ltd (No 2) [2002] 1 WLR 1192, Latham LJ expressly recognised the continued applicability of the Nagle v Feilden approach. This was re-affirmed at first instance in Bradley v Jockey Club [2004] EWHC 2164 (QB) (per Richards J at [35]). As Jonathan Morgan has recognised in his excellent survey of the modern case law and its application to sports governing bodies, the approach in Nagle v Feilden is still to be regarded as “good law” (Morgan, “A mare’s nest? The Jockey Club and judicial review of sports governing bodies” [2012] LIM 102, at 106).

All of this as a useful reminder to both public and private lawyers that public law principles have life outside the strict confines of the judicial review process. Yet given the importance of the possibility of natural justice arguments being raised outside judicial review, it is unfortunate that the circumstances in which they might be introduced are still so ambiguous.

A number of important question marks still hang over this area of the law. In particular, a question remains as to the scope of the principle in Nagle v Feilden. In Bradley v Jockey Club, for example, a question was raised as to whether the Nagle v Feilden approach should be considered as one instance of the common law doctrine against unreasonable restraints of trade, or whether it had a broader application in line with the approach taken in equity, as typified by Dawkins v Antrobus. At first instance, Richards J noted that a number of cases decided after ex parte Aga Khan had rationalised Nagle v Feilden on a restraint of trade basis (see Stevenage Borough FC Ltd v Football League (1996) 9 Admin LR 109, Newport Association FC Ltd v Football Association of Wales Ltd [1995] 2 All ER 87, and Mondahl (No. 2)). Indeed, such an analysis would be at one with Denning LJ’s emphasis of a common law “right to work” in that case, though we might see this “right” as simply one of the many common law principles that engage and shape the broader application of the rules of natural justice. Richards J refused to settle this point exactly in Bradley: he said that it was “unnecessary to get caught up in the subtleties” (para [35]) and that it was sufficient to note that “even in the absence of contract the court has a settled jurisdiction to grant declarations and injunctions in respect of decisions of domestic tribunals that affect a person’s right to work”. If we can see Nagle v Feilden as a natural successor to the line of cases exemplified by Dawkins v Antrobus, then the case allows for a ready reliance on natural justice principles outside judicial review. If, however, it is to be conceptualised simply as an aspect of the restraint of trade doctrine, its scope is much more limited.

There are other questions, too. What of the comments in earlier cases, like Maclean, that the non-contractual approach to natural justice arguments can only be relied on in the absence of any contract setting out procedural requirements? This approach was not emphatically dealt with in Nagle v Feilden, Bradley, and other cases. Indeed, in cases where the contractual route is preferred (where, for example, a claimant is seeking damages), in what circumstances, if at all, will it be proper to imply contractual terms requiring the principles of natural justice to be respected?

The potential of this area of law to develop as a dynamic corollary to judicial review is great, and its significance ought not to be underestimated. The on-going ambiguity is, however, regrettable. It is hoped that the courts will clarify the law in this area one day soon.

Philip Murray is a Fellow of St John’s College, Cambridge, and can be followed on Twitter: @DrPhilipMurray.

 Suggested citation: P. Murray, ‘Natural Justice at the Boundaries of Public Law ‘  UK Const. L. Blog (21st November 2013) (available at http://ukconstitutionallaw.org).

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