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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.


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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Event: The Future of Judicial Review, 19 November 2013

The Future of Judicial Review: Report Launch
Tuesday 19th November 6:15pm for a 6:30pm start
The British Academy, 10-11 Carlton House Terrace, London SW1Y 5AH

The UK Constitutional Law Group is supporting an event to launch of The Constitution Society’s report “The Future of Judicial Review”.  Places are limited and advanced booking is essential: please email events@consoc.org.uk.

The Constitution Society writes: Judicial review faces an uncertain future. The government’s proposed reforms in this area – not least, restricting who may bring a claim – are attracting controversy. Our new report takes a step back from the heat of that debate to illuminate the broader picture from a constitutional perspective.  What are the constitutional implications of attempts by the executive to limit the ability of individuals or organisations to challenge its decisions – and the power of the courts to rule on the lawfulness of its actions? What is the impact on the rule of law and the relationship between institutions of state? What are the potential consequences of altering the constitutional balance between our judges and Parliament? And why is this issue so important to the government, to Parliament and to lawyers?

Members of the panel will include: Amy Street, author of the report; Richard Gordon QC; Sir Konrad Schiemann; and a leading Parliamentarian. Following a panel discussion on the report the audience will have the opportunity to put questions to the speakers. A hard copy of the report will be available on the night.



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Adam Perry and Farrah Ahmed: Constitutional Conventions and Legitimate Expectations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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Aileen McHarg: Access To Judicial Review In Scotland

aileenReaders of this blog will be familiar with the controversial reforms to the judicial review procedure in England and Wales (discussed by Elliott and by Bondy & Sunkin), premised on the need to reduce the burden it imposes on public services by reducing the time limit for certain types of cases, reforming the permission stage, and increasing the fees charged, and recently implemented by Civil Procedure (Amendment No. 4) Rules 2013, SI 2013/1412.  Judicial review procedure in Scotland currently differs from England and Wales in having no equivalent of the permission stage, nor any fixed time limit within which to bring an application.  However, notwithstanding that the rate of applications for judicial review per capita in Scotland is only around a third of that south of the border – 342 cases in 2010-11 (Scottish Government, Civil Judicial Statistics 2010-11) as against 11,200 cases in England and Wales in 2011 (Ministry of Justice, Judicial and Court Statistics 2011) – the 2009 Report of the Scottish Civil Courts Review (the ‘Gill Review’) noted that there had been a steady increase in the numbers of judicial review petitions and considered that these cases took up a disproportionate amount of court time.  It therefore recommended following England and Wales by introducing a leave requirement and a three month time limit.

These recommendations have now been taken forward by the Scottish Government in its consultation  on the Draft Courts Reform (Scotland) Bill.  Section 84 of the Draft Bill amends the Court of Session Act 1988 to provide that:

  1. An application to the supervisory jurisdiction of the Court of Session must be made before the end of (a) the period of three months beginning with the date on which the grounds arose or (b) such longer period as the Court considers equitable having regard to all the circumstances (section 27A).  In view of the decision in the Buglife case, the Scottish Government decided not to include any overriding requirement that petitions should be brought promptly.
  2. No proceedings may be taken in respect of an application to the supervisory jurisdiction unless the Court has granted leave for the application to proceed.  Leave may be granted only if the Court is satisfied that (a) the applicant can demonstrate a sufficient interest in the subject matter of the application and (b) the application has a real prospect of success.  There is no requirement for an oral hearing at the leave stage, but if leave is refused without an oral hearing the petitioner may within seven days request a review of the decision at an oral hearing before a different judge.  There is also provision for appeal to the Inner House (sections 27B-D).

The proposals have been welcomed by some of the respondents to the consultation  – particularly, unsurprisingly, by public authorities.  However, they clearly create additional barriers to access to judicial review in Scotland, and are open to criticism on two grounds.  First, as with the recent English and Welsh reforms, they are based on inadequate evidence of their necessity.  Secondly, there is a risk of producing unintended consequences that may increase rather than reduce the burden on court time.


The Gill Review’s rationale for recommending the introduction of a leave requirement was that it would assist in encouraging early concessions by respondents in well-founded cases and provide a means of filtering out unmeritorious applications, thereby freeing up court time to deal more expeditiously with cases in which leave is granted.  A striking feature of both the Gill Review and the Scottish Government’s consultation paper, however, is the complete absence of hard evidence put forward to support the proposition that there is a significant problem in Scotland with unmeritorious cases being brought.  No statistics are given as to the outcomes of judicial review applications, while the disproportionality of the amount of court time devoted to such cases is inferred purely from the fact that they take up a higher proportion of sitting days than the total number of petitions would suggest, without any analysis of the importance or complexity of judicial review applications compared with other types of cases.  The only extended empirical study of judicial review in Scotland (Mullen, Pick & Prosser, Judicial Review in Scotland, 1996), which concluded that neither leave nor a time limit was necessary, is not cited in either paper, and the more extensive English empirical literature is used highly selectively.  Bondy & Sunkin’s research for the Public Law Project, which found a high refusal rate at the permission stage, is relied upon to support the conclusion that the English procedures work well in filtering out unmeritorious claims and prompting early settlement.  But there is little or no discussion of the nuances of that research, nor consideration of its applicability in Scotland.

Bondy & Sunkin themselves are reluctant to conclude that a high rate of refusal of permission is evidence of a high number of unmeritorious applications.  For instance, they note that the refusal rate is significantly higher where cases are decided on the papers rather than at an oral hearing.  They also note the impact of tight time limits in increasing the likelihood of weak claims and artificially inflating the caseload by reducing the time available for settlement.  In addition, neither Gill nor the Scottish Government considers the potential impact of the introduction of a leave stage – and consequent applications for reviews and appeals – on both court time and litigation costs.  Murray Stable, in their response  to the consultation, point out that the English system is both slower and more expensive than the current Scottish process, and that legal aid is not currently available for leave proceedings in Scotland.  Finally, there is no mention of the objection in principle to the introduction of a leave requirement, i.e., that it makes access to judicial review dependent upon the exercise of judicial discretion.  Bondy & Sunkin’s research confirms earlier findings of a high variation in the rate at which permission is granted by different judges.  They attribute this to the subjective nature of the ‘sufficiently arguable’ criterion applied south of the border, and report a widespread perception that judges take account of factors other than the legal merits of cases.  The ‘real prospect of success’ test proposed by the draft Courts Reform (Scotland) Bill would appear to set an even higher hurdle for Scottish applicants to overcome, without being any less subjective.

As the Faculty of Advocates has stated in its response to the consultation, the real problem with judicial review in Scotland is arguably not that there are too many cases, but that there are too few, especially outwith the immigration and asylum field which, as in England and Wales, dominates the judicial review caseload.  Insofar as there is thought to be a problem in that particular area (and again there is no evidence), reforms have already been introduced to try to promote early settlement by requiring prior notification of applications for judicial review to the UK Border Agency.  Moreover, the Court of Session could follow the English lead by transferring more of the immigration and asylum caseload to the Upper Tribunal, but so far has not done so, other than in relation to cases challenging procedural rulings or procedural decisions of the First Tier Tribunal (Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008, SSI 2008/357).

Time Limits

Although the introduction of a leave requirement seems to impose an unnecessary additional hurdle in the path of applicants for judicial review, the three month time limit would appear to be the more significant change and the greater barrier to access to justice.

As noted above, there is presently no specific time within which an application must be brought in Scotland, but applications can be dismissed for undue delay under the common law doctrine of mora, taciturnity and acquiescence.  Until recently, this was a relatively rare plea in judicial review cases but there has been a marked increase (the reasons for which are not clear) in its use in the past couple of years: a Westlaw search reveals sixteen cases in which the issue was raised since 1 January 2011, compared with only four in the previous two years.  However, mora works quite differently to a statutory time bar.  For one thing, the delay in bringing proceedings must be unreasonable, which is judged in all the circumstances of the case.  Secondly, there must be taciturnity and acquiescence as well as delay – essentially failure to object to the impugned decision and passive acceptance of its consequences.  The plea is therefore successful relatively infrequently, although there is clearly scope for inconsistency in its application.  For example, in McGinty v Scottish Ministers [2011] CSOH 163, a mora plea was upheld in relation to a challenge to the legality of the Scottish Ministers’ conduct of the strategic environmental assessment of their second National Planning Framework brought a year after notice of the assessment was published in the Edinburgh Gazette.  Although the petitioner claimed that he did not become aware of the proposal until seven weeks before he lodged his petition for judicial review, the court held that he ought to have been aware of it earlier.  By contrast, in OWA v Secretary of State for the Home Department [2013] CSOH 52, a mora plea was rejected in relation to a challenge to an immigration decision taken four years earlier.  The petitioner had understandably failed to appreciate the significance of a stamp in her passport, and hence could not be said to have acquiesced in the decision.  As in England and Wales, there can also be considerable uncertainty as to when time begins to run in relation to multi-stage or continuing decisions, and differing judicial attitudes as to the reasonableness of delaying resort to litigation (compare, e.g., Packard Ptnr [2011] CSOH 93  and Portobello Park Action Group Association v City of Edinburgh Council  [2012] CSIH 69.

The Gill Review took the view that mora was undesirably vague and not well-suited to a procedure designed to provide a speedy and effective remedy to challenge the decisions of public bodies.  In such cases, it argued, there was a public interest in challenges being made promptly and resolved quickly, hence it recommended the introduction of a fixed time limit.  Once again, however, there was a dearth of hard evidence offered in support of this proposal.  In fact, the only evidence provided as to the existence of a problem of undue delay was an anecdotal claim by one respondent government agency that it was still being served with applications in relation to immigration and asylum decisions several years after the they had been taken.  This, though, is an area in which the case for fixed time limits is particularly weak because decisions rarely have implications beyond the immediate parties.  Similarly, in response to empirically-based arguments that the three month time limit in England and Wales causes problems, particularly for vulnerable applicants, Gill preferred the viewed expressed by ‘a number of our respondents … that the time limit in England and Wales does not seem to unduly inhibit well-founded claims.’ (para 37).

Of course, the draft Bill does contain provision for the time limit to be waived in appropriate cases.  Nevertheless, a statutory time bar shifts the burden of proof from the respondent to establish that the delay was unreasonable to the petitioner to prove that it was not.  Moreover, there is a worrying suggestion in the Scottish Legal Aid Board’s response to the consultation on the draft Bill that petitions brought after three months are unlikely to obtain legal aid.  Accordingly, the probable consequence of the introduction of a time limit is that, in future, applications which would be heard at the moment will not be brought, or will be refused leave.  In addition, it is bound to produce more litigation concerning whether the time limit has been breached or ought to be waived.

Procedural Exclusivity

Another unintended consequence of the reforms is likely to be increased litigation over choice of procedure.  In Scotland, judicial review is an exclusive procedure for cases invoking the supervisory jurisdiction of the Court of Session.  However, the Supreme Court has recently confirmed in Ruddy v Chief Constable, Strathclyde Police [2012] UKSC 57 that it does not have to be used when the questioning of a public law decision is only ancillary to the establishment of some other form of action.  According to Lord Hope, the test is whether or not the decision complained about has to be reviewed and set aside in order to provide the litigant with a basis for his or her claim.

The danger that cases might be time-barred because they are erroneously brought via the wrong procedure is partially addressed via the proposal in the Consultation Paper to abolish the distinction between ordinary and petition procedure in the Court of Session (and in any case provision already exists for transferring cases into and out of the judicial review procedure – chapter 58.12 of the Rules of the Court).  However, it is likely that there will be an increase in deliberate attempts to circumvent the judicial review procedure and so to avoid the imposition of the time limit.  Since the test laid down in Ruddy appears easier to state than to apply (see, e.g., Shehadeh v Advocate-General for Scotland [2012] CSOH 196), it seems inevitable that more sterile procedural disputes of the type that caused such difficulties in England and Wales in the wake of O’Reilly v Mackman [1983] 2 AC 237 will arise.


It is disappointing to see such an important change to judicial review in Scotland being undertaken on such a flimsy evidential basis, and particularly surprising to see a government ostensibly committed to preserving the distinctiveness of Scots law so willing to follow the English approach, especially in a case where Scottish difference genuinely seems to be worth preserving.  It is probably unlikely that the Scottish Government will be persuaded to change its mind – not least because, as Justice Scotland points out in its consultation response, it will be one of the major beneficiaries of the proposed change.  One can only hope, therefore, that the Scottish Parliament will oblige it to do so.

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

Suggested citation: A. McHarg, ‘Access To Judicial Review In Scotland’  UK Const. L. Blog (30th July 2013) (available at http://ukconstitutionallaw.org)


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Mark Aronson: Statutory Interpretation or Judicial Disobedience?

MarkIn Australia as in England, courts began “reading down” legislative grants of broad and seemingly unfettered discretionary power long before the currently fashionable “principle of legality” entered the public lawyer’s lexicon. Judges typically explained themselves as merely engaging in an exercise of statutory interpretation, saying that in the absence of express words or an absolutely necessary implication to the contrary, they could not believe that Parliament intended to override fundamental principles, rights, or freedoms. Legislative drafters, they reasoned, were well aware of this interpretive approach, and could always respond with clearer language.

The only real novelty of the principle of legality was to add a “democratic” justification to the judicial claim of disbelief; any government seeking such an untoward power should be forced to ‘fess up to the Parliament, and face the political music. But if the actual intentions of the legislators were determinative, then both the curial expression of disbelief and the more recent democracy-forcing justification would be entirely unconvincing. Government can state its intention with absolute clarity and transparency, but to no avail if the statutory text itself leaves any loophole; what counts is statutory meaning, not legislative intent. In every case considered below, the government’s actual intentions could not have been clearer, nor more clearly stated during the Bill stages.

None of this would strike English readers as particularly noteworthy, although they might consider it further grist to the mill of the perennial debates about the limits (if any) to Parliamentary supremacy. The UK Supreme Court and its predecessor have occasionally suggested the possibility of outright disobedience to legislation threatening the rule of law itself, the usual instance being a privative clause so clearly drafted as to leave no wriggle-room whatsoever. For the moment, however, the UK Parliament has not tested the judicial mettle. Australian parliaments pushed the issue considerably further, but they have surprisingly little to show for their efforts. Indeed, they may well be playing with fire. Australia’s judicial review jurisdictions are constitutionally entrenched, and legislative attempts to get around that might end up nudging the courts beyond a judicial review jurisprudence focused primarily on good process, to a review that is overtly more substantive.

The story starts with privative clauses, which in Australia have long gone much further than the Anisminic Act’s exclusion of certiorari. Working around “no certiorari” clauses was always easy, because they could be read down to apply only to certiorari for non-jurisdictional errors of law, a work-around that English courts might now find slightly more difficult in light of their decision that all errors of law are reviewable for invalidity. However, Australian privative clauses went further, banning judicial review remedies (such as prohibition and mandamus) that were only ever available to overturn decisions or conduct that were invalid. For more than 60 years, the High Court adopted a convoluted, interpretive approach to privative clauses (see R v Hickman; Ex parte Fox and Clinton (1945) ).  As an exercise in interpretation, it was scarcely convincing, but at least it applied to both federal and State Acts, in an era when everyone had assumed that the judicial review powers of the State courts were not entrenched. That assumption has now been overturned by a decision with a dubious historical premise that nevertheless led to a result that everyone has welcomed.  Now that the interpretive approach to privative clauses is no longer needed, the High Court’s approach is much more straight forward – they can never diminish judicial review for “jurisdictional error”.

Shortly after the High Court had gutted a federal privative clause, it did the same to a limitation clause that had failed to allow the court the discretion to extend a strict statutory deadline for seeking judicial review.

With privative clauses and limitations clauses now being a waste of ink, attention is now turned to whether legislatures can use other methods to exclude some, or even all, of the basic tenets of judicial review. In all probability, the fight is still in its infancy, but it is producing some surprising results.

The common law’s procedural fairness requirements are famously indeterminate, but they did not start causing serious problems for the immigration bureaucracy until the mid-1980s. That was when the High Court expanded the protective reach of natural justice beyond legal rights to “legitimate expectations”, an expansion designed to accord fair process to migrants with no legal rights whatsoever to stay in the country. Natural justice challenges flourished, and immigration ministers responded by trying to replace the common law rules of procedural fairness with a statutory code of procedure. Their first attempt was to insert into the Act a very detailed set of procedures, supplemented by two novel features. The new procedures themselves came with a new sub-heading, namely:

Code of procedure for dealing fairly, efficiently and quickly with visa applications.

Further, they included a provision that a Minister who

deals with a visa application in a way that complies with [the new procedures] … is not required to take any other action in dealing with it.

The court acknowledged that the Minister had told parliament that his amendments would replace the common law’s natural justice requirements, but what counted was the meaning of the statutory text itself, which in this case did not actually say that it supplanted the common law.

The parliament responded by adding sections declaring that various procedural provisions were to be

taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters .. [dealt] with.

The High Court found two loopholes in that one. In 2010, the court said that the new procedures did not deal with visa applications made from abroad, with the surprising result that even though foreign-based applicants had no access to tribunal reviews, they did get some procedural protections denied to applications made within Australia.

The court went even further this year, in Minister for Immigration v Li. It struck down a migration decision because the tribunal had given no good reason for refusing to delay the hearing to give the appellant time to organise proper evidence of her work qualifications. The tribunal had forced on a hearing when it appeared fairly clear that a gap in the appellant’s documentation had been the fault of another government agency, and was in the process of being remedied.

The Li tribunal had a specific power to grant the adjournment request, but because the Act was silent on how to treat (ie, “deal with”) such requests, French CJ said that it had no procedure to supplant the common law’s natural justice requirements for dealing fairly with adjournment applications. That loophole might have been a step too far for the other judges; in any event, they chose not to explore it. Instead, they said that requirements of natural justice, “reasonableness”, and “rationality” overlap, and that even if (although this was not decided) the Act supplanted the common law’s natural justice, the tribunal had nevertheless to act reasonably or rationally in everything it did (French CJ also gave this as a reason for granting judicial review).

By itself, Li‘s manipulation of the labels was no great surprise, because the court has form in outflanking a statutory ban of one ground of review by using another ground in its stead. But in a decision that will have government lawyers pondering for some time, Li did much more than that.

Wednesbury unreasonableness was until Li the last card in an Australian lawyer’s pack – a plea for desparate counsel. In stark contrast to the English position, the Australian version of Wednesbury unreasonableness virtually required the challenged decision to have been so unreasonable that it was almost lunatic. Until Li, the fear was that anything less demanding would see Wednesbury slide inexorably into “merits in drag” (The epithet comes from New Zealand (Powerco Ltd v Commerce Commission at [24], but it has resonated in Australia, eg: Real Estate and Business Agents Supervisory Board v Carey at [58]). The court had been comfortable with the “process” grounds of judicial review, but distinctly uncomfortable with anything verging on a substantive, or qualitative, review ground.

Li now tells us that a decision need not be totally mad to be reviewable for unreasonableness, and without deciding whether “disproportionality” might become an acceptable review ground in its own right, it added that disproportionality is a good indicator of unreasonableness (at [30] and [72]-[74]). Just how unreasonable or irrational a decision must be before it will be reviewable for Wednesbury unreasonableness will vary between statutory contexts (at [67]), but it need not be mad:

The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it … (at [68])

The paradox is that this latest round of tightening the migration legislation’s procedural requirements has pushed the High Court into frankly substantive review. This might be only at the margins, but it was something the court had previously denied doing. Even Kirby J had once claimed (at [132]) that a court reviewing for serious irrationality or illogicality was looking only at process (namely, a reasoning process), rather than assessing the quality of the impugned decision.

Less than a month after the Li decision, Hayne J hinted at even further difficulties for governments seeking to limit judicial review of migration decisions (at [85]-[88]).  His Honour revived an opaque warning that the court had delivered more than a decade before (at [101]), in response to a government argument that the Act could be amended to grant the Minister plenary power over all non-citizens. The argument was that the parliament could stipulate that no breach of its requirements, nor any breach of common law requirements, would result in invalidity – in effect, that the entire Act was comprised of merely “directory” provisions. The odds of parliament actually doing that must be fairly remote, because governments themselves sometimes apply for judicial review, seeking to bring tribunals or agencies back into line. But the court’s warning is to the effect that this might not even be a “law”, because laws need to have some determinate content.

How things have changed. One can well understand a judicial distaste for the idea of an Act granting the Minister plenary discretionary power over aliens, but it is quite remarkable to threaten to strike down such an Act on the basis that it would not really be a law. Canberra’s first immigration Act ran for a mere 7 pages, which gave the Minister sufficient discretionary power to sustain the administration of a racist White Australia Policy. Almost 60 years later, and the replacement Act was still only 36 pages long, and its core was still a small group of sections granting virtually plenary power to the Minister. The Act’s first massive expansion did not occur until 1989 (when it grew by slightly more than 100 pages). It is now in two volumes totalling nearly 850 pages, and there is no sign of it getting any shorter. Is the court really suggesting that an Act without this level of detail is not a real law?

Mark Aronson is Emeritus Professor at the Law Faculty, University of New South Wales.

Suggested citation: M. Aronson, ‘Statutory Interpretation or Judicial Disobedience?’  UK Const. L. Blog (1st June 2013) (available at http://ukconstitutionallaw.org).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Myth: JR is an impediment to economic growth

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

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

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

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

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

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

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

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

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

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

Myth: there is widespread abuse of the JR process

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

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

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

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

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

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

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

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

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

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

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

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

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

Time limits

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

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

So to conclude

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

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

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

Varda Bondy is Director of Research, Public Law Project

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

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


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

mark1Following the Prime Minister’s declaration of “war” on judicial review last month, the Ministry of Justice has now published a consultation paper in which it sets out, and invites comments on, specific proposals concerning the judicial review process. They include reducing the time limit for seeking judicial review in certain circumstances. In planning cases, the limit would come down to six weeks, and in procurement cases to 30 days. The Government also proposes to reduce the scope for renewing applications for permission to seek judicial review following an initial refusal. In particular, such renewal applications would not be permitted by way of an oral hearing in cases where “substantially the same matter” had already been the subject of a hearing before a judge or where, on the papers, a judge had ruled the claim to be “totally without merit”. Court fees would also go up. Applying for judicial review would cost £235 instead of £60 (as at present), and a new fee (of £215-£235) would apply to oral renewals.

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

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

“Pyrrhic victories”

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

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

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

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

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

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

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

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

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

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

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

Judicial review as an unwelcome irritant

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

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

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

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

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

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

Judicial review in its broader constitutional setting

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

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

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

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

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

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


Filed under Judicial review, UK government