HSF responds to Government’s Consultation on Judicial Review Reform

The Queen’s Speech on 11 May announced a Judicial Review Bill. This followed a consultation on judicial review reform launched by the Government on 18 March 2021 (the “Consultation“) and the publication of the report by the Independent Review for Administrative Law (the “IRAL“) on its review into possible reforms to the judicial review process (the “IRAL’s Report“). Further information on the IRAL review and Report can be found in our previous blog post. This blog focuses on the Government consultation and our response in view of the forthcoming Judicial Review Bill.

The Consultation

The purpose of the Consultation as set out in the Consultation Document is to “complement the analysis presented in the [IRAL’s] Report” and to create an opportunity to consult on some of the proposals it suggested “at an early point in their development“. The questions put forward by the Consultation focus in part on the specific recommendations made in the IRAL’s Report (such as the discontinuance of Cart Judicial Review and the introduction of suspended quashing orders) which the Government agrees with and intends to take forwards. Additionally the Consultation Document sets out further reforms which the Government says there is merit in considering as a means of addressing some of the issues identified in IRAL’s Report.

The key areas in relation to judicial review claims in which the Consultation sought responses included:

  • Remedies (including suspended quashing orders and prospective remedies)
  • Ouster clauses
  • Removal of the promptness requirement
  • Consideration of a ‘track’ system
  • Requirement to identify organisations that might assist in litigation
  • Introduction of a Reply by the Claimant
  • Changes to the obligations surrounding Detailed and Summary Grounds of Resistance

Our Response

In the first section of our response we considered the Consultation’s questions on suspended or prospective quashing orders together and indicated our view that such remedies should only be permitted in exceptional circumstances, if at all. We noted that not only could such measures threaten to weaken existing remedies but they could also dampen the frameworks governing public functions by minimising the consequences of improper decision-making and in some instances depriving people of effective relief.

In relation to ouster clauses our response warned against the use of these to exclude judicial review as we believe it would be highly damaging to the accountability of Government and the rule of law.

The Consultation Document posed a series of questions on the possible removal of the promptness requirement for filing judicial review proceedings in conjunction with potential scope for encouraging the Civil Procedure Rules Committee (the “CPRC“) to offer time extensions to allow for pre-action resolution. We were generally supportive of removing the promptness requirement in our response, noting our belief that the benefits of the promptness requirement are outweighed by those resulting from the certainty that would be achieved by a fixed 3 month period in which to start proceedings. However, we consider that the 3 month period provides consistent opportunities for meaningful engagement in pre-action correspondence and allows for considered advice from practitioners, and therefore we are not in favour of extending the time limit beyond 3 months.

We were sceptical in our response about the need to introduce a requirement to identify organisations or wider groups that might assist in litigation, both because CPR 54.7(b) already partly goes to this, and also because it would be difficult in practice for many parties to identify possible interveners.

The Consultation Document was somewhat unclear in its request for responses on Detailed and Summary Grounds of Resistance but set out proposed changes to the obligations and procedure. We put forward our opinion that it is misguided to suggest that pre-action correspondence is a sufficient substitute for Summary Grounds of Resistance. Nevertheless we noted the role of pre-action correspondence generally in ensuring that the current 35 day limit before the deadline for filing Detailed Grounds of Resistance is well used and thus concluded that there was no need to extend this limit to 56 days.

Conclusion

Our overarching view is that the current mechanism for judicial review and wider administrative law functions well and does not need to be subject to any major reform. Whilst we are supportive of the Government seeking out scope for improvements in judicial review procedure, we encourage continued consultation with experienced practitioners for any significant proposed changes given the potentially wide-reaching implications for access to justice and the rule of law.

The Queen’s Speech to both Houses of Parliament on 11 May 2021 included a reference to a Judicial Review Bill in the context of the Government seeking to ‘restore the balance of power between the executive, legislature and the courts’. It remains to be seen what the Government’s next steps will be in respect of the proposed content of the Bill and any process of consulting on it.

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High Court considers use of expert evidence in judicial review

The High Court in R (Transport Action Network Ltd) v Secretary of State for Transport [2021] EWHC 568 (Admin) considered the extent to which a party in judicial review proceedings may adduce expert evidence.

Key points

  • Expert evidence is seldom required in order to resolve judicial review proceedings. That is because it is not the function of the Court in deciding such a claim to assess the merits of the decision of which judicial review is sought.
  • However where an understanding of technical matters is needed to enable the Court to understand the reasons relied on in making a decision in the context of a challenge to its rationality, expert evidence may be required to explain such technical matters.
  • Expert evidence may be needed if it is alleged that the decision under challenge was reached by a process of reasoning which involves a serious technical error.

Background

The claimant, Transport Action Network Ltd (TAN), commenced judicial review proceedings against the Secretary of State for Transport regarding its roads investment strategy for the period 2020 to 2035 (“the RIS”). The grounds of challenge alleged a failure to take into account the impact of the RIS on achieving specific climate change objectives contrary to the Infrastructure Act 2015, which requires the Secretary of State to have regard to the effect of the RIS on the environment.

The Court granted permission for TAN’s claim to proceed to a hearing. TAN applied to rely on witness statements from two academics. It submitted that the further statements should be admitted in evidence in response to certain inaccuracies in the defendant’s evidence, and that they addressed the issues in the claim in that they set out the alleged errors of logic made by the Secretary of State in quantifying emissions arising from road schemes in the RIS and in assessing their impact on achieving the relevant environmental objectives.

Decision   

The Court (Lang J) concluded that the two witness statements should be treated as expert evidence. The academics had no first-hand knowledge of the Secretary of State’s decision, but they possessed qualifications and expertise in the field and they were giving their opinions on the issues.

The Court agreed with the Secretary of State that in a “failure to have regard” challenge the focus should be on the material which the decision maker either did or did not take into account when making his or her decision. This was not an irrationality challenge in which the substance or the merits of the decision are reviewed by the Court. However in this case, the parties disagreed on whether the matters identified by TAN were mandatory material considerations. The defendant relied on the de minimis effect of RIS schemes on carbon emissions as a reason why these matters were not “obviously material” to RIS and, therefore, not mandatory material considerations. The Supreme Court in R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52 confirmed that the test to decide whether a consideration is so “obviously material” that it must be taken into account is the irrationality test. Therefore, irrationality was in issue, albeit to a limited extent.

The Court also considered the decision of the Divisional Court in R (The Law Society) v The Lord Chancellor [2018] EWHC 2094 (Admin) where it was found that expert evidence may be needed if it is alleged that the decision under challenge was reached by a process of reasoning which involved a serious technical error. In this case, the Court concluded that the evidence from TAN’s experts was on how and why the Secretary of State had allegedly seriously underestimated the emissions that would be caused by the RIS. The Court concluded that this was a technical field which a layperson, including the judge, could not fully understand without the benefit of expert evidence.

Comment

Given the nature of judicial review claims, expert evidence is rarely required in order to assist the Court to resolve the issues. This is because it is not the Court’s role to determine the merits of the decision under review, but rather it is concerned with the lawfulness of the exercise of the relevant public function. To answer that question, it is seldom necessary or appropriate for the Court to consider any evidence which goes beyond the material which was before the decision-maker and evidence of the process by which the decision was taken – let alone any expert evidence. However, as this judgment demonstrates, in limited circumstances the Court may require the assistance of an expert in order to make a determination.

Andrew Lidbetter
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Nusrat Zar
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Jasveer Randhawa
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Shameem Ahmad
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Publication of the Independent Review of Administrative Law’s Report and a Government Consultation into Judicial Review

On 18 March 2021, the Independent Review of Administrative Law (the “IRAL”) published its report on reform to the judicial review process (the “IRAL’s Report”) in which it made two substantive recommendations and a number of procedural recommendations. The Lord Chancellor and Secretary of State for Justice agreed with those recommendations and was “also interested in exploring proposals beyond these”. This was the basis upon which on the same day the Ministry of Justice published a consultation on judicial review reform (the “Consultation”).

Background

On 31 July 2020 the Government announced that it had appointed a panel of experts to examine if there is a need to reform the judicial review process and other aspects of public law decision making. The intention of the IRAL was to be wide-ranging in its scope. The Terms of Reference of the IRAL stated that it would “examine trends in judicial review of executive action, in particular in relation to the policies and decision making of the Government”. As part of its review the IRAL’s call for evidence invited submissions on how well or effectively judicial review currently balances, on the one hand, the legitimate interest in citizens being able to challenge the lawfulness of executive action with, on the other, the role of the executive in carrying on the business of Government.

While much can be said in respect of the IRAL’s Report and the Consultation, we have focussed on the key issues.

The IRAL’s Report

In summary, the IRAL made the following recommendations for changes to the substantive law:

  • Abolishing Cart JRs: Applications for judicial review against a decision of the Upper Tribunal (the “UTT”) to refuse permission to appeal against a decision of the First-tier Tribunal (the “FTT”) on the basis that the FTT’s decision was affected by an error of law and therefore the UTT’s decision was also so affected are referred to as applications for a “Cart JR”. The IRAL received a request from judges to examine Cart JRs, which some of those who gave evidence thought adds an additional layer of appeal that is unnecessary and unintended. After conducting investigations, the IRAL concluded that in only 0.22% of all applications for a Cart JR since 2012 has granting permission to pursue an application for a Cart JR resulted in an error of law on the part of a FTT being identified and corrected. On that basis the IRAL concluded that the continued expenditure of judicial resources on considering applications for a Cart JR could not be defended, and recommended that the practice of making and considering such applications should be discontinued.
  • Allowing courts to suspend quashing orders: The remedies that are potentially available when an application for judicial review is successful are set out in section 31 of the Senior Courts Act 1981: a mandatory, prohibiting or quashing order; a declaration or injunction; damages, restitution or the recovery of a sum due. The IRAL’s recommendation in this area was that section 31 should be amended to give the courts the option of making a suspended quashing order, i.e. a quashing order which will automatically take effect after a certain period of time if certain specified conditions are not met. It is the view of the IRAL that by issuing such an order the Court would be able to acknowledge the supremacy of Parliament in resolving conflicts between the courts and the executive as to how public power should be employed.

The IRAL also made some further recommendations and suggestions, including for non-legislative changes, which are more procedural in nature. For example, it stated that there is a need to clarify the scope of the duty of candour (i.e. the requirement that a public authority, when presenting its evidence in response to an application for judicial review, to set out fully and fairly all matters that are relevant to the decision that is under challenge). The IRAL suggested that this clarification be achieved by revisiting the Treasury Solicitor’s Guidance. It also stated that some amendments be made to the Civil Procedure Rules, such as a formal provision for a Reply to be filed by a Claimant within 7 days of receipt of the Acknowledgement of Service. With regard to the time limit within which a claim for judicial review must be brought by filing a claim form at court, CPR 54.5 states that it must be “no later than three months after the grounds to make the claim first arose” but the first requirement is that this must be done “promptly”. The IRAL states that there may be a case for abolishing the requirement of promptitude and it would “certainly not favour” any tightening of the current time limits for bringing a judicial review. Also, the IRAL recommends that the criteria for permitting intervention should be developed and published, “perhaps in the Guidance for the Administrative Court”.

The IRAL explicitly ruled out some possible reforms. For instance, it rejected the concept of statutory codification because “the grounds for review are well established and accessibly stated in the leading textbooks”. However, it acknowledged that codification could make judicial review more accessible to non-lawyers. The IRAL also recommended that Parliament does not pass any comprehensive or far-reaching legislation regarding non-justiciability, but instead legislate in response to particular decisions. The IRAL warned that broader legislation in this area that purported to roll back certain developments in the law on non-justiciability would be regarded as amounting to an ouster clause and that while the use of such a clause would be justified, it is likely to face a hostile response from the courts and robust scrutiny by Parliament.

Language deferential to Parliament’s role as a legislature was incorporated throughout the IRAL’s Report, as illustrated at paragraph 2.78:

We should emphasise that our reasons for not favouring making large changes to this area of law do not include any argument that it might be inappropriate for Parliament to legislate in this area. On the contrary: we are of the firm view that it is entirely legitimate for Parliament to pass legislation making it clear what sorts of exercises of public power (or issues relating to such exercises) should be regarded as non-justiciable. We strongly agree with the view advanced by Baroness Hale in her submission to us that: ‘If Parliament does not like what a court has decided, it can change the law.’ This is the case in every other area of law, and it is hard to see why it should not be in relation to the law on judicial review.

Nonetheless, it is interesting that the IRAL chose to incorporate its observations that while R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61 and R (Miller) v Prime Minister [2020] AC 373 represented “substantial setbacks for the [Government] and were of considerable constitutional importance, [the IRAL is] not convinced that the decisions (novel as they were) in those cases are likely to have wider ramifications given the unique political circumstances” at the time. Indeed the IRAL goes so far as to state that for “every controversial decision, there are many others (less publicised and less commended-upon) where judges have shown ‘restraint’”.

The Consultation

The Government agrees with the IRAL’s recommendations regarding Cart JRs and adding a remedy for suspended quashing orders, as well as removing the requirement for a claim to be issued “promptly”; providing further guidance for interveners; and providing for an extra step in the process for a Reply to be filed within 7 days of receipt of the Acknowledgement of Service. The Consultation seeks further views on these issues.

The Lord Chancellor and Secretary of State for Justice is “also interested in exploring proposals beyond these [recommendations]”. The Consultation makes clear that now is not the right time to propose far-reaching, radical structural changes to the system of judicial review, but that there is a case for targeted, incremental change. To that end the Government is now consulting on the following topics:

  • legislating to clarify the effect of statutory ouster clauses;
  • legislating to introduce remedies which are of prospective effect only, to be used by the courts on a discretionary basis;
  • legislating that, for challenges of Statutory Instruments, there is a presumption or a mandatory requirement for any remedy to be prospective only;
  • legislating for suspended quashing orders to be presumed or required;
  • legislating on the principles which lead to a decision being a nullity by operation of law; and
  • making further procedural reforms (which would need to be considered by the CPR Committee).

The Consultation closes on 29 April 2021.

Conclusion

Despite the wide remit conferred upon it at the outset of its review, the IRAL’s relatively modest recommendations may be underpinned by its view that while it “understands the [Government’s] concern about recent court defeats, [the IRAL] considers that disappointment with the outcome of a case (or cases) is rarely sufficient reason to legislate more generally.” However, it is clear that the Government continues to feel strongly that the courts should remain deferential to Parliament:

[It] cannot be emphasised enough that Parliament is the primary decision-maker here and the courts should ensure they remain, as Lady Hale put it, ‘the servant of Parliament’.

We note that that the Lord Chancellor and Secretary of State explains that he wants to “focus attention first on the most pressing issues, namely ouster clauses and remedies, before considering whether any broader reforms are necessary”. This suggests that upon concluding the Consultation, the Government may propose further reforms to judicial review and public law matters.

Previous related blog posts

https://hsfnotes.com/publiclaw/2020/08/03/government-launches-panel-to-consider-the-judicial-review-process/

https://hsfnotes.com/publiclaw/2020/09/08/governments-terms-of-reference-for-review-of-the-judicial-review-process/

https://hsfnotes.com/publiclaw/2020/10/27/hsf-responds-to-the-call-for-evidence-for-the-governments-independent-review-of-administrative-law/

 

Andrew Lidbetter
Andrew Lidbetter
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Nusrat Zar
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Jasveer Randhawa
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The importance of correctly approaching regulations and guidance in regulatory decisions

The High Court held in Havant Biogas Ltd & Ors v Gas & Electricity Markets Authority [2021] EWHC 84 (Admin) that Ofgem’s refusal to register the claimants as producers for a subsidy scheme contained public law errors in relation to the registration requirements and so remitted the applications to Ofgem for reconsideration. The case demonstrates the importance of properly interpreting and applying key provisions in regulations and any applicable guidance.

Background

The Claimants were four (of thirty seven) special purpose vehicle companies owned by Qila Holdings Limited (“Qila”) who each made applications to Ofgem to be registered as a producer of biomethane for injection in the national gas work under the Renewable Heat Incentive subsidy scheme (the “Subsidy Scheme”).

The Subsidy Scheme was governed by the Scheme Regulations made under section 100 of the Energy Act 2008. Two sets of Regulations were relevant to the case:

  • the Renewable Heat Incentive Scheme Regulations 2011 (SI 2011 No.2860) (the “2011 Regulations”) which were in force on 9 May 2018 at the time the Claimants made their applications; and
  • the Renewable Heat Incentive Scheme Regulations 2018 (SI 2018 No.611) (the “2018 Regulations”) which took effect from June and October 2018.

The Claimants’ applications were rejected by Ofgem, following which the Claimants requested a Statutory Review which was refused by the Statutory Review Officer (“SRO”).

Qila had earlier successfully registered other special purpose vehicles in 2016 which Ofgem had granted in 2017 (the “2017 Decisions”).

Both the 2017 Decisions and the Claimants’ applications were based on the ‘Two-Phase Model’ which was a form of staggered commissioning by which the applicant would carry out initial short-term steps for biomethane production in Phase 1 with registration preceding Phase 2. Phase 2 then involved funding being secured and the substantive assets being built. The Two-Phase Model was permissible under the 2011 Regulations but not under the 2018 Regulations.

The Claimants sought judicial review of the SRO’s decision to reject their applications for registration (the “Operative Decision”).

Judgment

The Court was faced with five grounds for judicial review.

Fordham J found that there was no breach of the provisions which prevented prior involvement in the decision making process by the SRO; there was no legitimate expectation based on prior decisions allegedly constituting a practice tantamount to a clear and unambiguous representation; there was an error in the Operative Decision considering whether to apply the test of “properly made” in the 2018 Regulations but the error was not material; and the Operative decision was not tainted by legal irrelevancies. Four grounds for judicial review were therefore rejected.

However, the Claimants succeeded on the ground that the SRO had misappreciated and overlooked the objectively correct meaning and effect of certain key provisions of the Regulations and the applicable guidance as to the requirements of a properly made application, and this had led to the SRO failing to ask the right questions and making public law errors.

Fordham J emphasised the Court’s limited supervisory function relating to interpreting the law (i.e. identifying its objective, legally correct meaning and determining whether Ofgem had acted compatibly with its relevant public law duties) as distinct from questions of application of the legislation and Ofgem’s applicable guidance, and matters of evaluative judgment which were squarely for Ofgem to decide, provided it acted consistently with its public law duties (para 23).

Ofgem argued that there had been no public law error in the Operative Decision and that it had involved matters of appreciation which Ofgem was entitled to regard as highly material as an exercise of reasonable judgment within the ambit of the SRO’s evaluative judgment.

However, Fordham J held that there were ‘core and recurrent themes in the SRO’s reasoning’ (para 79) from which it was possible to ‘trace certain problems lying at the heart of the public law errors in the SRO’s approach’ (para 90).

These recurrent themes related to the requirements of a properly made application. The Operative Decision emphasised the absence of certain elements of the application, such as the absence of identifying a site for producing biomethane and the absence of firm arrangements with any third party for the production of biomethane as reasons for the rejection of the Claimants’ applications.

Fordham J considered each strand of Ofgem’s decision in turn and held that the Operative Decision erroneously treated certain elements as pre-conditions required for registration when they did not appear as such in either the Scheme Regulations nor in any of Ofgem’s guidance, and therefore were not preconditions in law. He emphasised in particular Ofgem’s public law duty of adherence to guidance (absent good reason to depart from it), and highlighted that in making the Operative Decision, the significance of the relevant guidance (which clearly articulated the standard of sufficiency and requirements for applications) was not appreciated.

He noted that certain elements were pre-conditions required for applications made on or after 20 June 2018 (i.e. after the Claimants’ applications) and that these preconditions were not compatible with the Two-Phase Model, but that there was no express or implied previous requirement of that kind under the 2011 Regulations and applicable guidance.

Fordham J concluded that as a result of recurring themes that permeated the Operative Decision as a whole, he could not be convinced that Ofgem’s reasons for rejecting the applications in the Operative Decision would have independently justified a refusal of the applications, and therefore was not satisfied that a lawful decision would be ‘highly likely’ to be ‘not significantly different’. He therefore declined to refuse relief under section 31(2A) Senior Courts Act 1981.

Conclusion

This case serves as a reminder of the Administrative Court’s well-established approach of considering what is required by the legal provisions and also the correct approach to guidance. Fordham J emphasised Ofgem’s public law duty to adhere to its applicable guidance (unless it has good reason to depart from it). In this case, the Court considered that Ofgem had failed to ask the right questions or give due regard to its own guidance, and so when the Operative Decision was looked at as a whole, it contained public law errors in respect of the relevant requirements against which the applications should have been judged.

 

Andrew Lidbetter
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Nusrat Zar
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Jasveer Randhawa
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Catherine Bagge
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Court of Appeal and High Court consider property rights under the Human Rights Act

Two recent judgments have demonstrated the utility of the right to property under Article 1 of the First Protocol of the European Convention on Human Rights (“A1P1”) for companies and the scope for challenges where public decisions have interfered with private contracts. A1P1 is incorporated into English law by way of the Human Rights Act 1998, and provides for a right to peaceful enjoyment of possessions.

In R (Aviva Insurance Limited) v Secretary of State for Work and Pensions [2020] EWHC 3118 (Admin), the High Court found that the Secretary of State’s scheme for the recovery of state benefits from insurers in asbestos-related claims was incompatible with the insurers’ A1P1 rights.

In Solaria Energy UK Limited v Department for Business, Energy and Industrial Strategy [2020] EWCA Civ 1625, the Court of Appeal held that Solaria’s sub-contract with another company was a possession for the purposes of A1P1, despite contractual limits on its assignability.

Key Points

  • When considering whether a contract is a possession for the purposes of A1P1, the starting point is that a concluded and part-performed commercial contract is presumed to be a possession.
  • While assignability is a factor in considering whether a contractual right is a possession, it is not a conclusive factor.
  • Although legislation may not have been unlawful when it was first introduced, incompatibilities with ECHR rights may arise due to subsequent legal developments.

R (Aviva Insurance Limited) v Secretary of State for Work and Pensions

Background

Aviva holds a large book of long-tail employers’ liability insurance (for which Swiss Re provides reinsurance), whereby claims regarding asbestos-related diseases arising in the course of employment are covered by insurance in place at the time exposure occurred, even if the disease does not manifest itself until much later on. Such insurance is compulsory in the UK.

In personal injury litigation against a negligent employer, the claimant’s damages are reduced by the amount of specified state benefits received. The Social Security (Recovery of Benefits) Act 1997 (the “1997 Act”) requires the employer (and by extension its insurer) to then reimburse the Compensation Recovery Unit (“CRU”, part of the Department for Work and Pensions) in respect of those benefits. The 1997 Act retroactively applies to diseases that arise due to exposure prior to 1997, and the insurance policies that were in place at the time of exposure.

There have been a number of developments in the law of tort since 1997 that have greatly increased the number of asbestos-related claims and the amounts recouped by the CRU from insurers. Aviva and Swiss Re (together, the “Claimants”) sought judicial review of the Secretary of State for Work and Pensions (the “SSWP”) on the grounds that, following these legal developments, the CRU’s interpretation and application of the 1997 Act was incompatible with their A1P1 rights. The Claimants alleged that the Defendant breached their A1P1 rights in five respects:

  1. The requirement to repay 100% of the recoverable benefit to the CRU even where the employee’s contributory negligence has reduced the amount of damages payable to them;
  2. The requirement to repay 100% of the recoverable benefit to the CRU even where the employee sustains a divisible disease like asbestosis and the employer is only liable in tort for a small portion of that disease;
  3. The requirement to repay 100% of the recoverable benefit to the CRU even where there would be other defendants that would be liable but they or their insurers can not be traced;
  4. The requirement to repay recoverable benefits even where those benefits do not correspond to any recognised head of loss in tort, for example the repayment of Universal Credit which can include a housing element, whereas housing benefit was previously unrecoverable;
  5. The requirement to repay 100% of the recoverable benefit to the CRU in relation to settled claims, which generally involve an element of compromise and may be settled without admission of liability.

Judgment

Henshaw J considered the context in which the 1997 Act was introduced and the preceding systems for reimbursement of state benefits in tortious claims. Henshaw J found that “what Parliament did not have in contemplation was that, as a result of future developments in the law as between compensators and victims, compensators or their insurers would become liable for the cost of state benefits having no real relationship to the degree of injury or risk that those compensators had inflicted on the injured person”. Henshaw J considered that this amounted to an ongoing interference with the Claimants’ A1P1 rights each time the Claimants incurred a liability under the 1997 Act in respect of a specific claim arising out of a pre-1997 insurance policy.

Under A1P1, any interference with property must be justified. In particular the interference must serve a legitimate interest and be proportionate. Henshaw J considered the proportionality of the five features of the scheme that the Claimants argued were incompatible with their A1P1 rights, using a four stage test:

  1. On the question of whether the scheme had a legitimate aim, it was common ground that the objective of recovering costs attributable to tortious wrongdoing was legitimate.
  2. On whether the interferences were rationally connected to the aim of recovering costs attributable to tortious wrongdoing, Henshaw J considered that the decision to leave contributory negligence out of the 1997 Act was driven by practical concerns and fairness to injured persons. However, the second and third features were not rationally connected to the aim of recovering costs attributable to tortious wrongdoing, as the recovery of 100% of benefits despite only partial responsibility went over and above that aim. On the other hand, Henshaw J found that the fourth and fifth features were rationally connected to the legitimate aim.
  3. On whether the features went no further than necessary to achieve the legitimate aim, Henshaw J looked at similar schemes that had been proposed in Scotland and Wales and found that the first three interferences did go further than was necessary, as schemes could have been constructed so as to reduce the amount of benefits to be repaid in line with the tortious liability in those instances. Henshaw J considered that the fourth and fifth interferences went no further than was necessary to achieve the aim.
  4. On whether the features strike a fair balance between the interests of the community and the rights of the Claimants, Henshaw J concluded that while a fair balance may have been struck at the time the 1997 Act was passed, it did not necessarily follow that there was still a fair balance following subsequent legal developments. He concluded that the first three features did not strike a fair balance, in particular when bearing in mind their retrospective effect.

Henshaw J therefore concluded that the first three features of the operation of the 1997 Act raised in the claim were incompatible with the Claimants’ A1P1 rights. Permission to appeal to the Court of Appeal has been granted to both parties.

Solaria Energy UK Limited v Department for Business, Energy and Industrial Strategy

Background

In October 2011, the Department of Energy and Climate Change (which in 2016 was disbanded and its functions merged to form the Department for Business, Energy and Industrial Strategy, the defendant in this case) published a consultation which included a proposal to reduce certain subsidies in respect of electricity generated by solar panel installations and to bring forward the date for this reduction (the “Proposal”). The Proposal had a substantial impact on the solar energy industry.

In order to establish a successful A1P1 claim, claimants must first prove an unlawful interference by a public body. A significant number of A1P1 claims were brought by manufacturers and suppliers of solar panels which were considered by the Court of Appeal in Breyer Group Plc v Department of Energy and Climate Change [2015] EWCA Civ 408 (“Breyer”). The Court held that in principle the unlawful proposal could amount to a wrongful interference with or deprivation of the claimants’ possessions, namely existing contracts, contrary to A1P1.

Although Solaria had entered into a sub-contract for the supply of solar panels to another company in July 2011, it had not been a claimant in Breyer. Instead, Solaria continued to supply solar panels well into 2012. Eventually, Solaria issued proceedings against BEIS in December 2018, alleging interference with its July 2011 sub-contract contrary to its A1P1 rights. Solaria claimed that as a result of the Proposal, it was forced to renegotiate its sub-contract at a lower rate. However, Solaria’s claim was struck out by the Technology and Construction Court for two reasons. First, the Court found that Solaria’s sub-contract was not a possession for the purposes of A1P1. Although Solaria’s contractual rights under the sub-contract had a value to Solaria, that value was not a readily realisable or marketable value because the sub-contract could not be assigned. Secondly, the judge found Solaria’s claim to be out of time under the one year limitation period for HRA damages claims. Solaria appealed to the Court of Appeal on both grounds.

Judgment

Coulson LJ, who gave the leading judgment, noted that in Breyer a distinction was drawn between existing enforceable contracts and draft contracts which had yet to be concluded. While the former were found to be part of the goodwill of a business and therefore possessions under A1P1, the latter amounted to a loss of future income and were not actionable. Coulson LJ considered that “whilst not all contracts are possessions within the meaning of A1P1, the starting point must be that a signed and part-performed commercial contract is, prima facie, a possession”.

Coulson LJ considered that the judge at first instance was wrong to conclude that Solaria’s sub-contract was not a possession simply because it was not assignable. The sub-contract was in fact assignable, provided that the other party consented to that assignment. While that might affect the value of the sub-contract, it did not prevent the sub-contract from being a possession. Furthermore, even if the contract had contained an absolute bar on assignment, the Court considered that the sub-contract would still be a possession. While assignability was a factor in considering whether a contractual right was a possession, it was not a conclusive factor.

The Court of Appeal unanimously concluded that Solaria’s sub-contract was a possession for the purposes of A1P1. However, the Court upheld the first instance ruling that the claim was out of time and Solaria’s appeal was dismissed.

Conclusion

Property rights which are protected under the Human Rights Act can take many forms. They may involve requirements that property be used in particular ways, as was the case with the requirement on insurers to reimburse state benefits in the event of certain successful claims, or proposed changes to subsidy regimes that affect contracts between two private parties.

The judgment in Aviva demonstrates that the law provides protection for those who find their rights interfered with on the basis that they are disproportionate or do not serve a legitimate purpose. The judgment also indicates that although legislation may not have been unlawful when it was first introduced, incompatibilities with ECHR rights may arise due to subsequent legal developments.

The judgment in Solaria serves as a reminder that the concept of possessions under A1P1 is wider than the concept of property in English law, and that a concluded and part-performed commercial contract can be a possession for the purposes of A1P1.

Andrew Lidbetter
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Nusrat Zar
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Court of Appeal considers duty of consultation on public bodies

In R. (on the application of MP) v Secretary of State for Health and Social Care [2020] EWCA Civ 1634, the Court of Appeal clarified the common law duty of consultation upon public bodies based on fairness, and the test for when a legitimate expectation will be established.

Key points

  • The common law duty of fairness upon public bodies is not in itself enough to found a duty to consult.
  • When a public body undertakes a consultation, it has a duty to carry out that consultation properly, but that duty is confined to the proposals included in the consultation and does not necessarily extend to consultation on other proposals.
  • The legal test for establishing a procedural or substantive legitimate expectation requires:
    1. an express promise, representation or assurance which is “clear, unambiguous and devoid of relevant qualification” ; or
    2. a practice tantamount to such a promise.

Background

In 2015, the Appellant (an individual referred to as “MP”) was diagnosed with a form of blood cancer and began receiving NHS chemotherapy treatment. In the same year, MP was refused indefinite leave to remain in the UK. MP’s immigration status was unclear due to a pending appeal to the Upper Tribunal.

As a result of MP’s pending immigration status, MP was classed as an “overseas visitor” for the purposes of his next stage of treatment and under the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017 he was required to pay for his treatment upfront.

The 2017 Regulations introduced three changes to the rules governing NHS charges for certain treatment for those not ordinarily resident in the UK:

  • 1: Charges to be paid in advance for non-urgent treatment;
  • 2: NHS trusts to be required to record the fact that a person was an overseas visitor liable to be charged; and
  • 3: Liability to pay charges to be extended to cover certain NHS-funded services provided in the community.

Prior to making the 2017 Regulations, the Government had in 2015 undertaken a public consultation into proposal 3 above but did not include proposals 1 and 2 above in the consultation.

MP commenced judicial review proceedings, alleging that the advance payment and recording of information provisions in the 2017 Regulations (1 and 2 above) should be quashed because the Secretary of State had failed to undertake due consultation before promulgating them. He was unsuccessful in the High Court. On appeal the Court of Appeal considered two grounds:

  1. Did the fact that the Secretary of State elected to undertake the 2015 consultation mean that he had a duty to consult on proposals 1 and 2 even if he would not otherwise have been obliged to do so?
  2. Whether the Secretary of State was under a duty to consult on the advance payment and recording of information requirements because there was a legitimate expectation of consultation.

Judgment

The Court of Appeal dismissed the appeal on both grounds.

Duty to consult

The Court held that, having chosen to undertake a consultation on a set of proposals in the 2015 Consultation created a duty upon the Secretary of State to consult on all proposals contained within it “properly” (R. v North and East Devon HA Ex p. Coughlan [2001] QB 213 applied). However that duty to consult did not extend to the disclosure or consultation of all other proposals it might have considered in the same field. Proposals 1 and 2 were held to be “discrete, self-contained issues” which were not linked to the proposals consulted upon within the 2015 consultation.

Legitimate expectation

The doctrine of legitimate expectation has two aspects: procedural as well as substantive. Procedural legitimate expectation refers to the expectation of an individual that they have a right to a certain procedure, such as the right to a hearing or a consultation, in advance of a decision being taken by a public body. Substantive legitimate expectation refers to a scenario where an individual or entity seeks a substantive benefit from a public body.

The Court of Appeal held that cases concerned with substantive legitimate expectation were relevant when considering procedural legitimate expectation and that the “fundamental ingredients” of procedural and substantive legitimate expectation were the same, applying R. (on the application of Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213. The Court clarified these fundamental ingredients by setting out the legal test for when a legitimate expectation (substantive or procedural) would be established in relation to a practice undertaken by a public body, namely that there must be:

  1. an express promise, representation or assurance which is “clear, unambiguous and devoid of relevant qualification“; or
  2. a practice tantamount to such a promise.

The Court concluded that in this case no legitimate expectation of consultation had been established, in circumstances where the Secretary of State had not previously consulted on all amendments to the regime governing NHS charges for those not ordinarily resident in the UK, and that when there was consultation not all the changes made had been consulted upon.

Commentary

The common law duty of fairness on public bodies is not enough to found a duty to consult on its own. Careful consideration is needed of all of the circumstances in a case to determine whether such a duty arises. The Court of Appeal noted with approval the identification by the Divisional Court in R. (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 of the four main circumstances in which a duty to consult may arise. First, where there is a statutory duty to consult. Secondly, where there has been a promise to consult. Thirdly, where there has been an established practice of consultation. And fourthly where, in exceptional cases, a failure to consult would lead to conspicuous unfairness.

The judgment makes clear that a procedural legitimate expectation cannot be established merely by showing a “sufficiently settled and uniform practice” which is not unequivocal. The test for such an expectation is a high bar as it is for a substantive legitimate expectation, namely that of a clear and unambiguous promise or representation.

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Supreme Court unanimously finds plan to build third runway at Heathrow Airport is lawful

The Supreme Court has overturned a unanimous decision of the Court of Appeal, in finding that the Airports National Policy Statement (the “ANPS”) and its accompanying environmental report are lawful.

The ANPS is the framework that governs the construction of a third runway at Heathrow Airport and under which an application by a developer would be considered. This policy was designated as such by the Secretary of State in June 2018.

The defendant in this case, the Secretary of State for Transport, did not appeal the Court of Appeal’s decision and made no submissions to the Supreme Court. Instead, an interested party, Heathrow Airport Ltd (“HAL”) was granted permission to appeal to the Supreme Court. HAL owns Heathrow airport.

The Supreme Court decision

The Court of Appeal had found that the ANPS was unlawful on the basis of the following grounds, which the Supreme Court considered and rejected in turn.

“Government policy” ground

Pursuant to section 5(7) and (8) of the Planning Act 2008 (the “PA 2008”), the Secretary of State was required to give an explanation of how the policy set out in the ANPS took account of Government policy relating to the mitigation of, and adaptation to, climate change. It was a linchpin of the environmental activists’ success at the Court of Appeal that that Court decided that “Government policy” included the commitment to implement the emissions reductions targets under the Paris Agreement. In particular, it was the Court of Appeal’s view that there was nothing to warrant limiting the phrase “Government policy” to mean only the legal requirements of the Climate Change Act 2008 (the “CCA 2008”), finding that the concept of policy was broader than legislation.

The Supreme Court disagreed with this analysis. It took a purposive approach, explaining that the purpose of the section 5(8) is to make sure that there is a degree of coherence between the policy set out in the ANPS and established Government policies. It was the Court’s view that for the provision to operate sensibly the phrase must be given a relatively narrow meaning so that the relevant policies can readily be identified. Otherwise, civil servants would be required to “trawl” through Hansard and press statements to see if anything had been said by a minister which might be characterised as “policy”. The Court found that it could not have been Parliament’s intention to create “a bear trap” for ministers by requiring them to take into account any ministerial statement which could as a matter of ordinary language be described as a statement of policy relating to the relevant field.

As such, the Supreme Court held that when the Secretary of State designated the ANPS, there was no established Government policy beyond that already encapsulated in the CCA 2008. This is because, at that time, the Government’s approach on how to adapt its domestic policies to contribute to the global goals of the Paris Agreement was still in a process of development.

Section 10 ground

Under section 10(2) and (3) of the PA 2008 the Secretary of State is required to designate national policy frameworks with the aim of contributing to the achievement of sustainable development. The Court of Appeal found that the Secretary of State breached this duty when promulgating the ANPS in that he failed to have proper regard to the Paris Agreement.

The Supreme Court found that reasoning unsustainable. It held that the evidence demonstrated that the Secretary of State took the Paris Agreement into account and, to the extent that the obligations under it were already covered by the measures in the CCA 2008, he gave weight to it. Putting it another way, the Secretary of State was required to consider the CCA 2008; beyond that he had discretion whether to take the Paris Agreement further into account. The test to be applied to determining whether the exercise of that discretion was lawful was whether his decision was so irrational that no rational decision-maker would make it (the “Wednesbury Test”). This test was not met in this case. The Supreme Court held that the view formed by the Secretary of State, that the international obligations of the UK under the Paris Agreement were sufficiently taken into account for the purposes of the designation of the ANPS by having regard to the obligations under the CCA 2008, was “plainly” rational. This was bolstered by: the Secretary of State’s assessment based on expert advice from the Climate Change Committee (the “CCC”), an independent body; the ANPS indicating that the up-to-date carbon targets under the CCA 2008 would be taken into account at the stage of considering whether developer consent should be granted; and section 6 of the PA 2008 provides scope for the Secretary of State to amend the ANPS should that be necessary.

On this basis the Supreme Court overturned the Court of Appeal’s reasoning.

Environmental report ground

The Court of Appeal had found that the Secretary of State had breached his duty under article 5 of the Strategic Environmental Assessment Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (the “Directive”) to issue a suitable environmental report for the purposes of public consultation on the proposed ANPS, by failing to refer to the Paris Agreement.

The Supreme Court explained that an environmental report for the purposes of the Directive is required to provide a basis for informed public consultation on the plan. Whether the information included in an environmental report is adequate and appropriate is a matter of discretion for the Secretary of State and the exercise of that discretion is subject to the Wednesbury Test. The Court found that this test had not been met given that the Secretary of State decided to follow the advice of the CCC to the effect that the UK’s obligations under the Paris Agreement were sufficiently taken into account in the UK’s domestic obligations under the CCA 2008, which were referred to in the ANPS and the appraisal of sustainability. The Supreme Court found in favour of HAL on this ground.

Post-2050/Non-CO2 emissions ground

Section 10(2) and (3) of the PA 2008 obliged the Secretary of State in performing his function of designating the ANPS to do so with the objective of contributing to sustainable development and in so doing to have regard to the desirability of mitigating, and adapting to, climate change. The Court of Appeal found that the Secretary of State breached this duty when promulgating the ANPS for two reasons.

First, he failed to have proper regard to the desirability of mitigating climate change in the period after 2050. However, the Supreme Court found that the Paris Agreement was still being developed in June 2018, when the ANPS was being designated.

Second, he had failed to have proper regard to the desirability of mitigating climate change by restricting emissions of non-CO₂ impacts of aviation, in particular nitrous oxide. The Supreme Court dismissed this argument, stating that it was a matter of discretion for the Secretary of State. Further, that discretion had not been exercised irrationally because of six reasons:

  1. His decision reflected the uncertainty over the climate change effects of non-CO₂ emissions and the absence of an agreed metric which could inform policy.
  2. It was consistent with the advice which he had received from the CCC.
  3. It was taken in the context of the Government’s inchoate response to the Paris Agreement.
  4. The decision was taken in the context in which his department was developing as part of that response its Aviation Strategy, which would seek to address non-CO₂
  5. The designation of the ANPS was only the first stage in a process by which permission could be given for the third runway scheme to proceed and the Secretary of State had powers at the developer consent stage to address those emissions.
  6. It is clear from both the appraisal of sustainability and the ANPS itself that the applicant for developer consent would have to address the environmental rules and policies which were current when its application would be determined.

On this basis the Supreme Court found in favour of HAL on this ground as well.

Comment

The Court of Appeal’s decision could be regarded, in some ways, as conservative, given that it decided not to quash the ANPS. Instead, it declared that the ANPS in its present form was unlawful and could not have legal effect. This gave the Secretary of State the opportunity to reconsider the ANPS. Nonetheless, the Supreme Court’s decision could make it significantly easier for the Secretary of State to proceed with plans for a third runway at Heathrow. However, this case has not been without its political twists and turns. Notwithstanding the Supreme Court’s decision, at the time of writing this blog, it has been reported that the Prime Minister has refused to endorse proposals for a third runway at Heathrow. It remains to be seen what happens next.

Andrew Lidbetter
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Nusrat Zar
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Challenge to lockdown regulations heard by the Court of Appeal – Judgment

The Court of Appeal today handed down its judgment in respect of the proceedings brought by Simon Dolan and others (“the Appellants”) seeking to challenge the lockdown measures introduced in England in March 2020 via the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) following the outbreak of COVID-19 (see our earlier post regarding this challenge here, and the judgment here).

Although as the Court said the proceedings were now academic, it considered that it was in the public interest to have the issues determined rather than left for potential argument in defence to criminal proceedings, and bearing in mind that the Government was continuing to use the powers at issue.

Accordingly, the Court granted the Appellants permission to bring their claim for judicial review but only in respect of their argument that the Government had no power to make the lockdown regulations under the legislation on which they were relying (the Public Health (Control of Disease) Act 1984, as amended by the Health and Social Care Act 2008). However, the Court held that this legislation did indeed give the Government the ability to make a public health response such as the lockdown in the context of a widespread epidemic.

The Court refused the Appellants’ permission to appeal against the Administrative Court’s decision on their other grounds, which included: that the Secretary of State fettered his discretion and failed to take into account relevant considerations when considering easing the lockdown; and that the Regulations were unlawful because they breached human rights and were contrary to section 6(1) of the Human Rights Act 1998. In considering that these grounds were not properly arguable, the Court emphasised the wide degree of latitude that the Government must have for decision-making in respect of public health.

The Court also gave a general caution against treating judicial reviews as evolving or “rolling” proceedings, and parties filing “excessively long” pleadings. It also criticised the Appellants for taking two months to start their claim, rather than very promptly following the making of the Regulations in March 2020.

Andrew Lidbetter
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Invitation to Online Judicial Review Academy: 23 to 26 November

Together with Brick Court Chambers, Herbert Smith Freehills’ public law team is pleased to be partnering with the Public Law Project to run a complete course which aims to provide lawyers and advisers, policy people, and decision makers with an understanding of bringing and defending judicial review claims.

The course is also relevant to those working in campaigning organisations with a legal strategy and those representing and advising marginalised groups in society.

The programme includes a range of sessions covering substantive and procedural issues, and for the first time includes a session on “defending a judicial review”.

It is being run over a series of one to two hour sessions from 23 to 26 November.

The full schedule and confirmed speakers are here, along with the booking form.

Andrew Lidbetter
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Nusrat Zar
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Challenge to lockdown regulations heard by the Court of Appeal

In an earlier post, we covered a challenge brought by the entrepreneur Simon Dolan and others (“the Claimants”) seeking to challenge the lockdown measures introduced in England following the outbreak of COVID-19 (“Dolan 1”). At that stage, the Administrative Court had refused permission to apply for judicial review in July on the basis that the Claimants’ grounds of challenge were either academic or could not be reasonably argued.

The Claimants launched an appeal against the decision, and the Court of Appeal (through an order of Hickinbottom LJ dated 4 August 2020) ordered that the grounds should be considered by the court at a rolled up hearing to give the Claimants an opportunity to make their case on arguability. The matter was heard yesterday and today (29 and 30 October), and judgment has been reserved.

Proceedings in the Court of Appeal

Hickinbottom LJ’s order did not itself grant permission for the appeal to be heard on the substantive issues. Hickinbottom LJ’s order observed that the appeal raised important issues as the challenged regulations “impose possibly the most restrictive regime on the public life of persons and businesses…outside times of war…” and that “they potentially raise fundamental issues concerning the proper spheres for democratically-accountable Ministers of the Government and judges”. On that basis­, he ordered a rolled up hearing i.e. a hearing where the court would consider permission first, and if permission were granted in any aspect of the case, for the substantive arguments to be heard at the same time. Hickinbottom LJ also agreed with the Claimants that the case warranted expedition – in fact, the case was originally listed for 23 September but was adjourned to this week.

In practice, the distinction between the permission stage and substantive stage was blurred during this week’s hearing and the Court heard some substantive arguments from both sides. That is likely to be reflected in the judgment. Indeed, even if permission is refused, the Court may end up commenting on substantive aspects of the claim rather than simply giving brief reasons for refusing permission.

In the course of their written and oral submissions, the Claimants argued:

  1. That each of their judicial review grounds challenging the regulations were in fact arguable and should be upheld. A summary of these grounds is set out in our previous post and can also be found at paragraph 24 of Mr Justice Lewis’ judgment in the Administrative Court. While the original claim was filed against the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (as amended) (“the Lockdown Regulations”), the focus of the appeal is on the Health Protection (Coronavirus, Restrictions) (England) (No 2) Regulations 2020 (“the No. 2 Lockdown Regulations”) which came into force on 3 July 2020. The oral hearing also touched on the patchwork of regulations setting out the new three-tier system in England, which has superseded the No. 2 Lockdown Regulations to a large extent.
  2. That the Administrative Court erred in refusing the Claimants permission to amend their grounds to allow a challenge to the Secretary of State’s decision to instruct schools to close.
  3. That the Administrative Court erred in finding that certain grounds of challenge were ‘academic’, especially given the risks that restrictions (including a full national lockdown) could be re-imposed.

As we note above, the Lord Chief Justice, Lady Justice King and Lord Justice Singh have now reserved judgment after the two-day hearing.

Second challenge (“Dolan 2”)

In parallel, Mr Dolan has also launched separate proceedings against the Secretaries of State for Health and Social Care, the Home Department, and Business, Energy and Industrial Strategy. This claim has been brought by Mr Dolan along with Cripps Barns Group Limited (a wedding events organiser) and another individual (Lauren Monks). This claim targets specific regulations introduced by the Government – specifically the regulations introducing the ‘Rule of Six’, the 10 PM curfew, the restrictions on gatherings, the wearing of masks, and the restrictions on venues to not take bookings of more than six people and to prevent ‘mingling’. These measures were either introduced through standalone regulations or by amending the No. 2 Lockdown Regulations to introduce new provisions. It was also suggested during the proceedings in the Dolan 1 appeal that the grounds in Dolan 2 were being extended to cover the new regulations setting out the new three-tiered system in England.

The Claimants in Dolan 2 initially sought an interim injunction to prevent the Government from enforcing the two parts of the No 2 Lockdown Regulations and the associated guidance that restricts the numbers of those who may attend marriages and wedding receptions to 15. Swift J refused interim relief through an order of 15 October 2020.

On the substantive case, there appear to be four principal grounds of challenge:

  1. That the regulations in question contravene the Public Health (Control of Infectious Disease) Act 1984 (“1984 Act”) under which they were made on the basis that a) the Government has made improper use of the emergency procedure under section 45R of the Act; and b) the regulations impose greater restrictions than permitted under the 1984 Act.
  2. That the measures introduced are disproportionate to the objective of reducing the transmission of COVID-19, and amount to a disproportionate interference with the Claimant’s rights under Articles 8, 9, 11 and Article 1, Protocol 1 of the ECHR.
  3. That the Government is effectively fettering its discretion by setting out ‘five tests’ for imposing and removing restrictions – none of which, the Claimants argue, factor in the serious harms caused by the regulations.
  4. A supporting witness statement from the Claimants’ solicitors also suggests that the Claimants intend to argue that the decision to introduce the regulations was not made on the basis of any specific scientific evidence.

We also understand that the Speaker of the House of Commons, Sir Lindsay Hoyle, has written to the Court to express concern that hearing certain parts of the claim could result in a breach of the principles of parliamentary privilege set out in Article 9 of the Bill of Rights 1689.

Comment

Mr Dolan’s challenges to the Government’s measures to tackle the COVID-19 outbreak have attracted considerable media attention, particularly as they attack a key aspect of the Government’s response.

The fact that the appeal in Dolan 1 was heard this week may have an impact on how the Court of Appeal deals with the grounds of challenge. At the time the Administrative Court refused permission in July, the national lockdown had been eased, and the No. 2 Lockdown Regulations had been put in place which contained far fewer restrictions on individuals and businesses. It was against this backdrop that the Court found some of the grounds to be academic. However, with the potential of a second wave over the winter, the Government has since significantly amended the No. 2 Regulations and also introduced the new three-tier system. There is also a prospect of a further national lockdown.

The Court of Appeal’s decision is also likely to have implications on how the Government coordinates its response to the crisis in the coming months, especially if the Court of Appeal deals with the Claimants’ arguments in relation to the limits of the emergency powers under the 1984 Act.

We do not yet know whether the question of permission in Dolan 2 will be dealt with by a judge considering the papers or whether there will be an oral hearing.

If you have any questions on the public law aspects of COVID-19, please contact Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa, or Sahil Kher.

Please also visit our client COVID-19 Hub here for insight from Herbert Smith Freehills on the wider legal issues surrounding the current outbreak.

Andrew Lidbetter
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James Wood
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