Letter from a leftie lawyer: 16 October 2020

Review of judicial review

This is not really a letter from a leftie lawyer, but my reply to the Tories’ review of administrative law (ie mostly of judicial review)

INDEPENDENT REVIEW OF ADMINISTRATIVE LAW[1]

Response from

David Burrows

Solicitor advocate

Introduction: judicial review and separation of powers

Why judicial review? It is to give judges – who are independent of the executive and of the legislature – the ability, on application by a private individual, to review the administrative decisions made by or on behalf of the state or other public body.

In the United Kingdom we do not have a true separation of powers, whatever Montesquieu may have thought. If one accepts for now that a separation of powers regards the executive, the legislature and the judiciary as having separate powers, in UK the executive – Prime Minister and his cabinet – are part of the legislature.

The judiciary are broadly independent of legislature and executive. They can supervise the executive and be a check on what they do in constitutional and rights law terms; but in United Kingdom law they are subsidiary to Parliament; and judges frequently acknowledge that in their judgments and their disposal of cases. I will deal with this later.

By any objective and fair standard, a responsible government should recognise its powers must not be unlimited; but that there should be certain checks on what it does from an independent body, such as the judiciary. This has been understood for most of the period since 1689.

The present government must face the political fact that to inhibit judicial checks on, or review of, its work is part of the ‘slippery slope’ towards fascism which is so fashionable amongst some modern governments. This is a political debate, led by politicians who are not in the British tradition of understanding the balance of political institutions. The members of the review panel must please try to understand the important principles which the likes of our present Home Secretary and Prime Minister (especially) seem unable or unwilling to understand

Focus of ‘Independent Review’

The panel asks for the following to be considered:

1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.

2. Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government.

3. Whether, where the exercise of a public law power should be justiciable:

(i) on which grounds the courts should be able to find a decision to be unlawful;

(ii) whether those grounds should depend on the nature and subject matter of the power; and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful.

4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”,[2] and, in particular:

(a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government;

(b) in relation to the duty of candour, particularly as it affects Government;

(c) on possible amendments to the law of standing;

(d) on time limits for bringing claims,

(e) on the principles on which relief is granted in claims for judicial review,

(f) on rights of appeal, including on the issue of permission to bring JR proceedings and;

(g) on costs and interveners.

Saving of costs

I understand that costs savings is not a primary concern of the review; but it is to be hoped that it can be considered. In what follows I mention a number of areas where a change in the law and of the rules could promote costs savings, of benefit for the tax-payer and for the parties. These include:

  • More use of district judges in the Administrative Court especially at the permission stage
  • Streamlining of disclosure (duty of candour) and close control on the extent to which documents and other material is relevant to any judicial review issue
  • Drawing in judicial review procedures to other civil proceedings with a public law element (I mention especially family law and child support, two of my specialist areas)

Structure of law

For present purposes I will assume the law to be substantive and procedural. Substantive law consists of statute law (passed by Parliament) and common law (judge-made law). The latter can only be altered by the former (ie not by rule or (mostly) by other delegated legislation). Most judicial review law is common law; though limited aspects of it are codified in Senior Courts Act 1981 and procedural rules (notably Civil Procedure Rules 1998 Part 54).

The first three questions above mostly go to substantive law. I have my own views on this area; but I am sure many – better qualified than I – will comment. I will restrict my reply to the fourth question on procedural aspects.

First I will explain my experience of practice generally and then of judicial review. Attached is a form of curriculum vitae which shows that I am predominantly a family lawyer; but in that capacity I dealt with a variety of legal aid work and (almost unique amongst solicitors) I did a variety of child support work. I have marked judicial review reported case I conducted as advocate with a * (though they are mostly obvious from their title). I am now largely retired; but I still have a small caseload. I write extensively on family law and related matters.

I do my own advocacy whenever I can. I am a founder contributor to the Family Court Practice (the ‘Red Book’: the family lawyer’s equivalent of the ‘White Book’). I am familiar with a variety of aspects of procedural law (eg my most recent book is on ‘Open Justice in family proceedings’ (October 2020) for the Law Society).

My experience of judicial review was mostly in child support – judicial review of the Secretary of State for Work and Pensions; but also in judicial review of the Commissioners and later the Upper Tribunal (it was my judicial review application for Mr Cart which eventually emerged in the Supreme Court as Cart v The Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663, [2012] 1 FLR 997) and very occasionally of the Legal Aid Board (as it was). My experience there will, I hope, feed one or two answers below.

When a district registry of the Administrative Court was first set up in Cardiff in about 2008 I was in practice in Bristol and had a substantial proportion of its early cases.

PROCEDURAL QUESTIONS

I will divide my answers into:

  • Reply to the review paper
  • Further thoughts on procedure
  • Judicial review and family law
  • Limits to judicial ‘interference’

(1)        REPLY TO REVIEW

(a) the burden and effect of disclosure in particular in relation to “policy decisions” in Government;

(b) in relation to the duty of candour, particularly as it affects Government;

My short answer to this is that whether it is called ‘disclosure’ or ‘duty of candour’ they come to much the same thing; but both must be distinguished from public interest immunity (PII). So long as there is a clear basis for PII (whether common law or statute) – and it may be that that must be made statutory in the context of any administrative law bill – then beyond what is covered by any PII claim, the public body should open its file. However, it is important that this be in respect only to information relevant to the claim, in clear terms, so that ‘disclosure’ should not be carte blanche and be relevant only to issues in the judicial review claim.

‘Government’ need be no exception, so long as any relevance rules are written tightly so as not to inhibit progress of case; and not to waste the court’s time. 

(c) on possible amendments to the law of standing;

No comment

(d) on time limits for bringing claims,

I suggest 3 months is about right.

(e) on the principles on which relief is granted in claims for judicial review,

This is substantive law.

(f) on rights of appeal, including on the issue of permission to bring JR proceedings;

There must be a tightly controlled appeal process, as now; with a brief appearance available on permission hearings which could be dealt with by junior judges (see below).

There should also be the ability to applicant to reply to defendant’s summary grounds. My experience was certainly not that defendants were always as scrupulous as they should be about telling the truth to the court. High Court judges always believed the lawyers for the Child Support Agency and Secretary of State (with the honourable exception of such experienced judges as Collins J). They did not always tell the full truth; but to challenge them at the summary grounds stage was more or less impossible.

The Court of Appeal should keep its originating judicial review jurisdiction (Chief Adjudication Officer v Foster [1992] QB 31, [1991] 3 W.L.R. 473; Farley v Child Support Agency [2005] EWCA Civ 869 (a case of mine)).

(g) on costs and interveners.

Protected costs orders – I have read that the prime minister and Home Secretary are opposed to ‘lefty lawyers’ and to ‘do gooders’; but I hope still that the concept of the protected costs order will be retained in any review of the scheme. To lose the PCO idea would be a blot on the extent of the judicial review scheme.

Costs of summary grounds of defence – Similarly, the limit on defendant’s summary grounds costs should be retained, to keep a fair balance between applicant and defendant.

Stream-lining of procedure – That said, I am sure – as I mention below – there are ways procedure can be stream-lined and made more economic for both parties. This will then impact on costs.

(2)        STREAM-LINING PROCEDURE

The procedure for most judicial review is much simpler than most people – including experienced practising lawyers – think. With perseverance it may be possible to make it – in many cases – more simple still. Some thoughts follow.

All judicial review is dealt with by High Court judges; though in practice this may be by circuit judges and QCs sitting as High Court judges. It is a high judicial level which is assured to parties.

Is this necessary? Much of the child support judicial review work I did could have been dealt with, without any derogation to fairness, by district judges trained within the Administrative Court. Would it not be possible for Administrative Court district judges to deal with the paper-work stage of permission? They would know when to refer up, and they could define the level of judge to deal with any restored hearing.

I mentioned limits on disclosure and emphasis on relevance in the previous section.

(3)        JUDICIAL REVIEW AND FAMILY LAW

Below, under ‘Administrative law and family proceedings’, is a slightly abbreviated article on the extent to which administrative law and its principles could apply directly in family proceedings (published in Family Law in August 2020). This might considerably assist in both judicial review and family proceedings to the benefit of the parties, and to the saving of costs and multiplicity of proceedings all around.

For example in Smith v Child Maintenance Enforcement Commission [2009] EWHC 3358 (Admin) (16 October 2009), HHJ Jarman QC, sitting as a High Court judge and related proceedings, the Secretary of State (for the CMEC) refused to join in the parties’ matrimonial proceedings in which the residue of financial relief proceedings remained to be resolved. Both sets of proceedings had to be dealt with in parallel court files in separate buildings at the extra expense to the tax-payer, HM Courts and Tribunal Service and to the parties. (The Smiths also saw their earlier child support proceedings considered by the House of Lords (Smith v Secretary of State for Work and Pensions & Anor [2006] UKHL 35, [2006] 1 WLR 2024, [2007] 1 FLR 166) but that is another story….)

(4)        LIMITS TO JUDICIAL ‘INTERFERENCE’

The role of the judge

The inverted commas above are important. I do not accept that there is any question of judicial ‘interference’ in our society; and I hope that Edward Faulks (as I knew him when we were at school together) would recognise that. Many of those involved in litigation – by definition – will disagree with a judge. Cases such as Oliver v Shaikh [2020] EWHC 2658 (QB) (8 October 2020), Nicklin J show the depth to which that disagreement can go with the very unfortunate His Honour Judge Oliver. Comments such as those of the Daily Mail, as judges being the ‘Enemies of the people’, an attitude unchecked by Faulks’s erstwhile ministerial colleague as ‘Lord Chancellor’, plainly do not help; and that should not be regarded as a political comment.

To attack a judge is cowardly. It is rare that they can defend themselves or answer back (as, in the end, did Judge Oliver) in any real or effective way.

It is important, however, for politicians to understand that our judges frequently defer to Parliament, and accept their subservience to the legislative branch of the three powers. Examples on this point in various public law fields follow.

Law reform: a matter for Parliament

In R (Prudential plc and anor) v Special Commissioner of Income Tax [2013] UKSC 1, [2013] 2 AC 185 the Supreme Court showed itself willing to leave legal professional privilege, in this case legal advice privilege (LAP) – quintessentially a common law doctrine – to Parliament if there was to be reform. A company obtained advice from a firm of accountants on the tax law aspects of a proposed transaction. An inspector of taxes served notices on the company requiring them to deliver to the inspector documents containing information relevant to the company’s tax liability, including material passing between the company and the accountants during the giving of the advice. The claimant company challenged issue of the notices, including on grounds that the material sought was covered by LAP. The judge dismissed the claim. LAP applied only to advice given by a member of the legal profession. The Court of Appeal dismissed the claimants’ appeal.

A seven justice court dismissed the claimant’s further appeal (Lords Clarke and Sumption dissenting). At common law, said the majority LAP was universally understood as applying only to communications between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice. The extent of the privilege was clear, consistent and certain. It was allowed for by the rules and practice of the courts and in legislation. If there was scope for reform, that was a matter for Parliament not for the judges.

Towards the end of his judgment (with which Lord Walker agreed) Lord Neuberger – who describes himself generally as “something of a swing vote” judge (p 182) – introduced a section entitled “A policy issue best left to Parliament” as follows:

[61] Apart from these concerns, it seems to me that this appeal gives rise to an issue, possibly a series of issues, of policy, which constitutes an area into which the courts should generally be reluctant to tread. Rather than extending LAP beyond its present accepted boundaries, we should leave it to Parliament to decide what, if anything, it wishes to do about LAP.

Judges not to extend any administrative role beyond what Parliament provided for

Where Parliament had entrusted administration to one branch of the state, judges should not try to extend that role beyond what Parliament had already provided for. This was emphasised in the period prior to Children Act 1989 (CA 1989) when on two occasions, at least, the House of Lords stressed that where parliament had given a job – in this case child care – to the local authority then wardship could not be used judicially to oversee the actions of the social workers. This was explained in the House of Lords in A v Liverpool City Council [1982] AC 363, [1981] 2 WLR 948 where a parent had sought to challenge operation of a care order by the local authority. The point returned in Re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791 where Lord Scarman spoke emphatically of the importance of the need to understand that where Parliament had “entrusted” powers to a public body, the courts cannot exercise any powers it might have to intervene (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. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized of the same matter, would act judicially. 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.

This division between state and private individuals was one of the principles on which Children Act 1989 was based. The A v Liverpool principle survives in relation to housing law. In Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413 a family court used a Children Act 1989 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, but it could not be regarded as a determinative factor for the housing authority. A family court, exercising its own jurisdiction under the 1989 Act, could not use the order as a means of exerting pressure on the housing authority to provide housing for a parent irrespective of all the other considerations which a the housing authority must take into account.

The family court has no power to control operation of a housing department. 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 wanted 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].

David Burrows

16 October 2020


[1] ‘Independent Review of Administrative Law (IRAL)’ https://www.gov.uk/government/groups/independent-review-of-administrative-law

[2] The inverted commas here were inserted by the Ministry of Justice; though it is not clear why. To streamline a procedure is a respectable intent

Letter from a leftie lawyer: 11 October 2020

Independent review of judicial review law

In the next couple of days I must write my response to the government’s ‘Independent Review of Administrative Law (IRAL)’. IRAL follows  a muted Tory election pledge is said to ‘exist to consider options for reform to the process of judicial review’. It is ‘independent’ in the sense that it is chaired by Eddie Faulks (orse Lord Faulks QC a former government minister and side-kick of failing Grayling as Lord Chancellor, especially in his legal aid destruction phase). I have written previously about Faulks’s arrogance and stupidity when, as a Government minister, he replied to a question on legal aid for exceptional cases (the government’s then – and still – threadbare ‘safety net scheme’ determination scheme).

It says nothing of a government which claims to want an ‘independent review’ that it appoints one of its own to chair the review. On that basis should I boycott the review? It is an element only of a charade mounted by this dire administration? Yes, but I think I must reply. Faulks & Co may regard what I say as irrelevant; but I think I must respond.

And all this as the Prime Minister and Home Secretary together have plumbed further Trumpian depths in their numbing way as they decry ‘leftie lawyers’ and ‘do-gooders’ (a pejorative term which you’d have thought went out with the 1970s?). Of the Prime Minister’s ilk, in many ways, what does Faulks think of these ‘leftie lawyers’? He was once a practising barrister. He must owe part of his wealth to legal aid (he was at the bar at a time when legal aid lawyers were fairly paid). How often has he conducted a judicial review application, I do not know? I am not aware that administrative law was any real part of his practice. Can we ask him?

Lawyers and judicial review

It is not lawyers of any particular political persuasion who conduct judicial review claims. The law is there to protect victims of administrative error or oppressions at all levels. We ‘leftie lawyers’ (many, I am sure, are not very leftie at all) do it, not to make a great living nor from burning political conviction. We do it because we think it is important that the executive – from ministers in all departments, down to civil servants and council officials – should follow the law which Parliament has defined; that rights should be protected for anyone at any level of society; and that therefore the administration should be accountable to a judge where

It is as important that someone’s rights be protected as that their health be looked after; and that the individual’s rights to both are fully respected. A remarkable case which deals with both elements – health and rights – was R (W a child by his litigation friend J) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin) (21 May 2020). W is a UK national aged eight. He and his Ghanaian mother (J) had been in UK since 2009. She was granted leave to remain on the ‘10-year route to settlement’ renewable each 30 months and on condition that she had ‘no recourse to public funds’ (‘NRPF’: ie she was not eligible for almost all state benefits, including for her child). As a result she and W had periods of destitution including ‘street homeless’. They moved house repeatedly. W had moved school five times. Home Office case workers’ guidance was that only if a person is actually destitute – not imminently destitute – could NRFP could be overridden.

Faulks’s litmus test

Did this make the guidance incompatible with ECHR Art 3 (right not to be subject to torture or to inhuman or degrading treatment)? Yes said the court. The Home Department instruction was unlawful. The court made a declaration accordingly and a mandatory order that the Secretary of State should not impose or any NRPF condition in respect of the applicant and J. I have a horrible feeling that our present Home Secretary will promote legislation to change this. Would Edward Faulks be whipped in to support her? Can he be asked? This should be a litmus test: if he would obey such a whip he should not be chairing this ‘independent’ panel.

I will tell the inquiry that they must bear in mind that in United Kingdom we do not have a true separation of powers, whatever Montesquieu may have thought. The executive – Prime Minister and his cabinet – are part of the legislature. The judiciary are independent – for now… They can supervise the executive and be a check on what they do in constitutional and rights law terms; but in United Kingdom law they are subsidiary to Parliament; and judges frequently acknowledge that in their judgments and their disposal of cases (see eg the latter part of my ICLR book review of ‘Enemies of the people’ ).

That is an argument I must address to Lord Faulks and his group. Faulks and his Tory buddies must understand this. A belief in rights, like a belief in God, does not mean you are a leftie.

David Burrows

11 October 2020

Judge’s subservience to Parliament and the government

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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

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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?