UK Constitutional Law Association

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Richard Kirkham: JR55: Five Activist Strategies a Judge Should Avoid

Richard KirkhamThe ruling of the Supreme Court in JR55 raises a host of issues which deserve a much fuller analysis than can be developed in this post. The best reading of the case is that its impact is largely isolated to the Northern Ireland Commissioner for Complaints scheme involved, an ombudsman scheme which closed on 1st April as a result of the Public Services Ombudsman Act (Northern Ireland) 2016. In the words of Lord Sumption who gave the only judgment:

The various [ombudsman] enactments have a strong family resemblance. But some of them have distinctive features which mean that considerable caution is required before principles derived from one legislative scheme can be read across to another. [para.1]

However, the judgment leaves some rich pickings for those who might want to reopen points of law that had previously been thought settled.

This post will leave a detailed analysis of the implications of the case for the ombudsman sector to another time, and focusses instead on a much wider issue that flows from the judgment. Underpinning the judgment in JR55 is a strategic approach to judicial reasoning that might be described as textual. In other words, most of the effort is focussed on interpreting the legislation upon which the Commissioner’s decisions were based and applying that interpretation to the facts of the case. By contrast, very little energy, if any, is invested in factoring into that interpretation the context in which the Commissioner’s scheme operates or the purposes for which it was created. It might be thought that the textual approach to judicial reasoning is the safest way to reduce the potential for judicial activism: namely inappropriate judicial law-making. This post will illustrate in the context of one case how the textual approach is equally capable of allowing the judiciary to employ strategies that both facilitate judicial activism and undermine the will of the legislature.

Problematic strategies 

JR55 concerned (a) the legality of a decision of the Commissioner in recommending that a GP pay £10k compensation to the complainant and (b) the accompanying suggestion that the Commissioner would consider issuing a special report to the Northern Ireland Assembly on the matter. The judgment focussed on the interpretation and application of the Commissioner for Complaints (Northern Ireland) Order 1996, the correct interpretation of which had split the lower court judges.

Strategy 1: Be opaque as to the legal grounds deployed

One aspect of the case is clear. Para.30 deals with the respondent’s challenge to the rationality of the recommendation of £10k which is described as being ‘plucked out of the air’ and ‘lacking any rational basis’. The remainder of the judgment, however, slides between a finding that the Commissioner acted beyond his legislative powers and an implicit suggestion that the Commissioner had unreasonably used his powers under the Order in this particular instance. This lack of clarity in the ruling creates a chilling effect on the future use of the interpreted powers and may invite future litigation, because it is not always clear when the particular interpretations being given to the 1996 Order are intended to have wider effect and when not.

Frankly, it would have been much better if the ruling had been focussed solely around an unreasonableness argument because the one thing that is clear from the judgment is that the Court did not like the idea of an individual general practitioner being asked to pay £10k outside of the safeguards of the court process. Such a line of argument would have reduced the need for sophisticated, and questionable, efforts to try and come to a clear meaning of a complex piece of legislation based on discretionary power.

Strategy 2: Imply an interpretation to legislation without fully analysing the implications

There were several instances in the ruling where the judge sought to establish a restrictive meaning around the discretionary powers of the Commissioner through textual interpretation alone. Often this was achieved by inferring that when read together separate provisions of the 1996 Order led to a particular conclusion. To give one example, a key part of the ombudsman process is the initial decision to accept a complaint. Article 9 of the 1996 Order is very similar to equivalent sections in other ombudsman schemes and states that:

[T]he Commissioner shall not conduct an investigation … in respect of any action in respect of which the person aggrieved has or had a remedy by way of proceedings in a court of law. The Commissioner may conduct an investigation notwithstanding that the person aggrieved has a right or remedy … if the Commissioner is satisfied that in the particular circumstance it is not reasonable to expect him or her to resort or to have resorted to it.

Here is a discretionary power the meaning of which reasonable people can disagree on, and on which the courts have disagreed in two Court of Appeal cases, Croydon and Liverpool. The simplest interpretation is that article 9 leaves the discretion with the Commissioner. But, citing only Croydon, the ruling in JR55 read article 9 as imposing restrictions on both the scope of the complaints that can be accepted and the nature of the remedies that could later be recommended under article 11. On the facts of the case this interpretation meant that because the original complaint had not suggested that the complainant sought a financial remedy, it was unlawful for the Commissioner to recommend a financial remedy post-investigation.

The degree to which an ombudsman is required to limit the scope of an investigation according to the facts as known at the time of the original complaint is a point of law that has received judicial attention previously, and is contentious.  The Supreme Court though appeared oblivious to this case law or the potential ramifications of its inquiry in JR55 to other ombudsman schemes and has inferred an interpretation of article 9 (and its equivalents) which may encourage legal argument in the future.

None of this is to argue that the conclusion of the Supreme Court was necessarily wrong, but by focussing only on a textual interpretation strategy the Court dodged having to address alternative legal arguments and has thereby created uncertainty.

Strategy 3: Use case law selectively

The point made above illustrates another classic judicial activist technique: if there is a choice of relevant cases to follow, cite only the one that supports your analysis.

Strategy 4: Brush over contentious points of law

The respondent in the case was a GP. The Supreme Court in JR55 was keen to emphasise that due to the way that the 1996 Order operated the respondent had a more limited legal capacity to resist the recommendations of the Commissioner than an ordinary public body. Although this train of argument rather overlooked the fact that the recommendations were non-binding, it was correct insofar as the 1996 Order channelled different forms of Commissioner investigation down different avenues. In order to emphasise the point that the respondent’s legal vulnerability deserved to be treated with respect, the Supreme Court found that a general practitioner ‘is not a public body, but merely provides services to a public body under a contract or some other consensual arrangement’. [para.20]

This conclusion is arguably correct, but equally the Order is silent on the matter and it is one about which again reasonable people could disagree. Notwithstanding this background uncertainty as to what is and is not a public body in law, in JR55 no analysis of the point is provided or cases cited in support of the ruling. Presumably, the Court were persuaded by the logic of the House of Lords in the HRA case YL v Birmingham, which found that a privately run Care Home was not operating as a public body even though some of its residents were paid for under contract with the local authority. But that case can hardly be claimed to have laid down clear rules as what is and what is not a public body such that argument on the point was not necessary. YL was also a case in which the panel was split 3/2 for reasons which revealed stark differences of underlying legal principle, and led to s.145 of the Health and Social Care Act 2008 being passed to reverse the ruling as it applied to care homes. Even if we treat the finding only as obiter, there cannot be a starker example of judicial activism than this perfunctory treatment of an important point of law.

Strategy 5: Over simplify the law and the facts

Judges are required to apply the law, faithfully, to the facts and explain their reasoning. Article 11(b)(i) of the 1996 Order states that the Commissioner may attempt to effect a settlement of the matter complained of and then at (b)(ii):

… if that is not possible … state what action should in his opinion be taken by the body concerned … to effect a fair settlement of that matter …

On this point, with minimal explanation or analysis the ruling asserts at para.22:

… the power is not relevant here, because the Complaints Commissioner never sought to operate the settlement procedure.

Perhaps this is an appropriate conclusion to draw from what occurred, but it rather ignores significant evidence to the contrary, as raised at the lower stages of the case. What ‘settlement procedure’ the ruling requires to be met is not explained, but one can only presume that the usual process of communication between an ombudsman and the investigated body is insufficient.

Conclusion

Triggered in part by a few instances of bold constitutional judgments, the Human Rights Act and a series of speeches by senior judges, including several by Lord Sumption, a powerful and important debate is underway concerning the appropriate levels of restraint that the judiciary should exercise when resolving a case, one which has echoes of a parallel debate in the USA. A key scenario in which this debate becomes live is when a judge is required to interpret discretionary power, as conferred by legislation. This scenario gives rise to a number of common risks when the judiciary venture too far from literal interpretations of legislation, as this may result in the judiciary giving meaning to the law without due consideration to the consequences of the interpretation applied. If a judge attempts to interpret legislation to confine discretionary power he/she needs to bear in mind that the court is frequently in an inferior position to the primary decision-maker to balance up the wider public interest with that of the needs of the individual case. These, and other, institutional risks suggest that the judiciary should avoid the temptation to over interpret legislation as it surreptitiously draws the court into the role of adjudicating the merits of the case, contrary to the wishes of the legislature, under the guise of under-analysed textual premises.

It is sometimes advocated that the solution to judicial activism is to require the judge to focus on textual interpretations of legislation rather than attempt a deeper examination of the purposes that lie behind legislation. The ruling in JR55 demonstrates that this approach is too simplistic and disguises multiple pitfalls. In JR55, rather than conceding that the legislation conferred discretionary power on the Commissioner, the Court allowed itself to be drawn into making interpretative choices which were eminently defensible on a first reading, but on a deeper examination failed to concede viable alternative interpretations or factor in the potential knock-on consequences of the interpretations that were made. This is a form of judicial overreach that needs to be included within any activism/restraint debate.

Dr Richard Kirkham is Senior Lecturer in Public Law at the School of Law, University of Sheffield.

(Suggested citation: R. Kirkham, ‘JR55: Five Activist Strategies a Judge Should Avoid’, U.K. Const. L. Blog (30th May 2016) (available at https://ukconstitutionallaw.org/))

2 comments on “Richard Kirkham: JR55: Five Activist Strategies a Judge Should Avoid

  1. Pingback: Richard Kirkham: A reply to Judicial Capture of Political Accountability | Judicial Power Project

  2. Pingback: The implications of JR55 for administrative justice | UKAJI

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