Judge’s subservience to Parliament and the government


High court’s powers subject to decisions of another public body


The Conservative manifesto caused entirely understandable anxiety amongst many human rights lawyers at its threats to consider reform of judicial review and Human Rights Act 1998; and similar threats are expected in today’s Queen’s speech. From a source on the right wing of the Tory party legislature wrecking is to be expected. I cannot be complacent, but I do remind would-be reformers to bear in mind – however they may threaten as bad losers from the Miller litigation – that there are already many areas of law where judges recognise their subservience to Parliament’s will. In my case examples come from family law; but they are essentially from administrative law (ie judicial review) areas.


In family – and other civil – courts judges are already restricted by administrative law constraints. This applies, for example, where local authority children’s or housing departments are concerned; or where Legal Aid Agency, Home Office and Child Maintenance Service are involved in families’ litigation. And of course, the embargo on child periodical payments imposed by Child Support Act 1991 s 8 is one of the better known – and least subtle – of Parliament’s limitation on family courts.


Limitations on wardship and local authority care of children


In Re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791 and the earlier A v Liverpool City Council [1982] AC 363, [1981] 2 WLR 948 family members attempted to challenge operation of a care order (when procedure and legal aid rules were very different than post-CA 1989) by wardship. Lord Scarman spoke emphatically (at 797):


… The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority…. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.


The importance of the A v Liverpool principle survives today. In Re H (Children) [2018] EWFC 61, [2019] 1 FLR 792 Sir James Munby (then as a High Court judge), identified the principle in a case where there was delay in prosecution of parents in parallel care and criminal proceedings.


[20] The starting point is the fundamental point of principle articulated and elaborated in a well-known series of cases in the House of Lords and, more recently, the Supreme Court: A v Liverpool City Council [1982] AC 363, In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791, Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413…. That principle, as explained by Lord Scarman [in the passage cited above].


The same can apply in housing law. In Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413 a family court had tried to use a shared residence order to put pressure on a housing authority to provide housing for both parents. The House of Lords said this was not permissible. The existence of a shared residence order was a relevant factor, but it was not determinative.


The point came back in the family courts more recently in F v M & Anor [2017] EWHC 949 (Fam), [2018] 2 WLR 178, [2018] 1 FLR 1217 where in a child arrangements order Hayden J was considering a decision on asylum made by the Secretary of State for the Home Department (the ‘Home Office’). He explained the mother’s position in this country as follows, and his powers to differ – if he sought to do so – from the decisions of officials within the Home Office. He explained this (by quotation from Lord Scarman in Re W (above)) as follows:


[41] … The determination of the refugee status of any adult or child falls entirely within “an area entrusted by Parliament to a particular public authority”. In this case the public authority is the [Home Office].


Funding of family proceedings


Can the court compel the state or a local authority to fund family proceedings? Finance questions arise, broadly, in three ways:


  1. Funding – How proceedings are paid for is generally a private issue between a party and his or her lawyer; but it may involve legal aid or a claim against the other spouse in matrimonial proceedings (Matrimonial Causes Act 1973 s 22ZA (legal services order)).
  2. Expenses – The court may be asked to adjudicate between parties as to who is to pay expenses (eg for an expert’s report: JG v Lord Chancellor and ors [2014] EWCA Civ 656, [2014] 2 FLR 1218).
  3. Costs – Costs is what is paid as between parties by one to the other by court order.


In HB v A Local Authority & Anor (Wardship – Costs Funding Order) [2017] EWHC 524 (Fam), [2018] 1 FLR 538 MacDonald J considered whether he had power, in the inherent jurisdiction of the High Court, to order a local authority to pay a mother’s legal expenses where it had warded two children where their mother was believed to be planning to go to Islamic State). Because it was wardship the mother outside the automatic legal aid scheme for CA 1989 Pt 4; and she was not financially eligible. Accordingly she applied under the inherent jurisdiction of the High Court judge for a costs funding order against the local authority requiring it to fund her legal advice and representation.


MacDonald J concluded:


[94] I am satisfied that the inherent jurisdiction of the High Court does not give the court the power to require a local authority to incur expenditure to fund the legal representation of a litigant in wardship proceedings who has been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament.


He buttressed what he had said by reference also to Re K & H (Children) [2015] EWCA Civ 543, [2016] 1 FLR 754 (also Re K [2015] 1 WLR 3801):


[97] Those well-established principles [as to state funding], as articulated by Lord Dyson MR in Re K [2015] 1 WLR 3801, are clear. Authority for public expenditure requires clear statutory authority, which authority must itself be in clear, express and unambiguous language. Within this context, a general power or duty cannot be used to circumvent a clear statutory code. Where Parliament has made detailed provisions as to how certain statutory functions in respect of legal funding are to be carried out, there is no scope for implying the existence of additional powers which lie wholly outside the relevant statutory code.


MacDonald J, by reference to Lord Dyson MR, stresses the point – there in relation to legal aid: that once Parliament has laid the ground for an administrative body to deal with an issue then the court cannot, in any inherent jurisdiction, seek to challenge the role of the administrator, save by properly issued and pleaded judicial review application; but that is a separate forensic question.


David Burrows

19 December 2019


Judicial review and ‘politics by another means’: Part 1


Judicial review and the Tory manifesto


That part of the Tory manifesto – at page 48 – which deals with aspects of constitutional reform is a muddled concoction of a few topics. One that has caused real concern amongst a number of people is what is said about judicial review (JR); though much of that may be influenced by the fact that what is meant by judicial review is not always well understood.


First, what the manifesto says only matters if the Tories have a workable majority after the election. This looks depressingly likely; so what does their manifest say on the subject of JR:


We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.


So judicial review (JR) is to remain available to protect ‘rights of individuals’; but, on this sentence – there is no more – of the Tory manifesto JR is (1) not to be ‘abused to conduct politics by another means;; nor (2) ‘to create needless delays’. The ‘needless delays’ question is a matter of the administrators – HM Courts and Tribunal Service on behalf of the government – to provide enough courts and judges to deal with the claims presented to the courts. In practice judicial review procedure is efficient and works quickly (eg that a claim must be made at the latest within three months of the decision at issue).


The main question turns on the issue of ‘politics by another means’. What does this mean? The fact is that the vast majority of JR has nothing to do with politics, beyond – occasionally – local politics or the determination of a civil servant decision-maker to press a particular point: maybe someone in the Home Office or the Police.


Judicial review: an overview


So what is JR, how does it work, what are politics in the context of High Court litigation and to what extent are particular cases ‘political’? These posts seek to answer these questions:


  • What is JR? This post will seek to answer this question is a very general way;
  • How does JR work in a handful of recent cases; and to what extent may these be treated a ‘political’; and
  • How does the ‘political’ aspect impact of mainstream JR process and how may this be affected by what the Tories propose?


Running through these three questions is what is identified by Hickinbottom LJ the Court of Appeal in Wilson & Ors , R v The Prime Minister [2019] EWCA Civ 304, [2019] WLR 4174 (4 March 2019):


[56] The Applicants clearly oppose the UK leaving the EU; and hold strong views to that effect. Others hold strong views in favour of leaving the EU. The subject matter raises passions on both sides. However, consideration of this claim must be focused exclusively on the question of whether the Respondent has acted in accordance with the law. The courts are not concerned at all with the merits of leaving or remaining in the EU… As Singh LJ and Carr J put it recently in R (Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) at [326]: “Judicial review is not, and should not be regarded as, politics by another means.” As will be clear from this judgment, I consider those observations equally applicable to this case.


What is judicial review?


JR is a remedy which has been created by the judges over the centuries – that is to say, it is a common law remedy (and any statutory content is merely confirmation of the common law). The modern definition of JR is that it is a means by which the High Court reviews the lawfulness of (1) a rule or regulation or (2) a decision, an action or a failure to act by a public body (mostly civil servants; but also by local authorities etc).


By the JR process, the court can supervise what public bodies are required to do by statute; or to tell them to act where they have failed to do so. This role of the judges is reflected in the Wilson case (above): ‘Consideration of this claim must be focused exclusively on the question of whether the Respondent has acted in accordance with the law’ whatever may be the judges or anyone else’s view of the politics in the case.


The High Court can make orders – these are the most commonly used of the orders available – which tell a public body what to do (a mandatory order); to tell the body not to do something (a prohibitory order); or to override the order which is the subject of the complaint (a quashing order). Under Human Rights Act 1998 judicial review is not formally prescribed as the remedy by which a person challenges the lawfulness of an act under the 1998 legislation and European Convention 1950; but is the main way to challenge a public body under the 1998 Act.


A person makes a claim for JR where she or he asks the High Court for permission to proceed with a claim. No claim can proceed unless the court considers that the applicant ‘has a sufficient interest’ in the issue she or he seeks to bring before the court; and the court considers they have an arguable case.


Basis of challenge: powers


A challenge in judicial review turns on what are the powers (vires) of the public body; or the way in which the decision-maker, representing the authority, exercises – or fails to exercise – its powers. The question that a JR claim poses in simple terms is: does the body, or the decision-maker in its name, have the power vested in it to do what it has done; or, given that it has the power, and has exercised it irrationally (as defined below: ‘Wednesbury unreasonableness’)? Where it has the power, has it failed to exercise it as it should have done? In relation to social security legislation, in Part 2 the illegal way that the Department of Work and Pensions dealt with their legislation will be looked at in the case of RR v Secretary of State for Work and Pensions [2019] UKSC 52, [2019] 1 WLR 6430


In a House of Lords case, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Diplock sets out a categorisation of the grounds for judicial review (a categorisation that still holds good). Further, since 1999 the additional dimension of the Human Rights Act 1998 and Convention rights has a particular relevance to evaluation of the exercise of public powers. The categorisations identified by Lord Diplock are illegality, irrationality and procedural impropriety.


(1) Illegality – means a failure to act within the law. For example, when the decision-maker contemplates a decision he must understand the law on which it is based and must apply it correctly. Illegality includes if a decision-maker fails to take into account a statutorily relevant issue or takes into account an issue the decision-maker should not have considered. A decision-maker must approach every decision with an open mind and not necessarily according to prescribed formulae. Discretionary powers must be exercised ‘on each occasion in the light of the circumstances at the time’ (R (Venables) v Secretary of State for the Home Department [1998] AC 407).


(2) Irrationality (or unreasonableness) – did the local authority take into account matters that they should not have done; or did they fail to take into account matters that they should have considered. Even if they did not act in this way, did they nevertheless come to a conclusion ‘so unreasonable that no reasonable authority could have come to it’? Powers may not be used outside the ambit of a decision-maker’s authority: ‘Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely – that is to say, it can be validly used only in the right and proper way which Parliament … is presumed to have intended’: (R (Chetnick Developments Ltd) v Tower Hamlets LBC [1988] AC 858, Lord Bridge at 872). The scope for interference by the courts is narrow. Unless the decision-maker exercises his discretion in a way that is so unreasonable that no reasonable decision-maker could have so operated, and he has taken into account the correct questions, then his decision will not generally be said to have been irrational.


(3) Procedural impropriety – A decision-maker must act fairly, that is to say in accordance with the principles of natural justice. Common law concepts of natural justice have been extended by European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 6(1) (right to a fair trial). A right to a fair trial does not affect the actual rights that the courts are required to protect; but the Article protects or guarantees the procedures (including, for example, evidential rules) by which those rights are protected.


So next (in Part 2), to look at:


  • How does JR actually work in terms of politics, or not in a handful of recent cases; and to what extent such cases may be treated as ‘political’ (per the Tory manifesto); and
  • How does the ‘political’ aspect impact of mainstream JR process arise and how may this be affected by what the Tories propose?