Court of Appeal upholds regulatory judgment in technical field

Recently, the Court of Appeal gave its decision in R (Cotter) v NICE [2020] EWCA Civ 103. The case challenged a decision by NICE which made it harder for a patient to obtain a particular medicine than would have been the case had NICE taken a different approach.

Background

The Claimant sought judicial review of NICE’s decision to assess the use of Kuvan to treat phenylketonuria (“PKU“) under the Health Technology Appraisal (“HTA“) procedure instead of the Highly Specialised Technology (“HST“) procedure. Under the HTA Procedure NICE will only recommend a health technology for use in the NHS if it will not cost more than £30,000 for each Quality Adjusted Life Year whereas under the HST procedure, NICE will recommend a drug costing up to £100,000 per QALY gained. Therefore, the test for a favourable recommendation is easier to satisfy under the HST procedure because a drug can be less cost effective than under the HTA procedure. However, the Court of Appeal agreed with the High Court that NICE was entitled to assess whether Kuvan should be recommended on the NHS using the HTA procedure.

The HST Procedure is reserved for highly specialised technologies which meet seven criteria set out in a document entitled ‘Interim Process and Methods of the Highly Specialised Technologies Programme‘ issued by NICE in April 2017 (the “2017 Guidance“). NICE determined that four of the seven criteria set out in the 2017 Guidance were satisfied but three criteria referred to below were not satisfied. Since the requirement under the 2017 Guidance was that all the criteria needed to be satisfied for appraisal under the HST procedure, NICE concluded that Kuvan should be assessed under the HTA procedure.

The Claimant’s case was that all seven criteria were satisfied in the case of Kuvan and the decision to use the HTA procedure was therefore unlawful. At first instance the Court concluded that the application of the guidance to the particular facts was a matter for the judgment of NICE and was susceptible to challenge only on irrationality grounds. The judge concluded that the criteria required the exercise of expert judgment and the use of expert knowledge and that there is always a high threshold for irrationality cases. The Court of Appeal agreed with this general approach. However, its interpretation of Criterion 1 and 2 in the 2017 Guidance and their application to the facts was different.

Grounds of Appeal and Court of Appeal’s Decision

The Claimant had five grounds of appeal.

Ground 1 – The statutory context

The Claimant argued that the judge had failed to have proper regard to the statutory context. While Males LJ accepted that it was necessary to have regard to the statutory context, he found that once it is conceded that not all technologies falling within the definition of “highly specialised health technologies” have to be appraised under the HST procedure, NICE was entitled to establish criteria to determine which health technologies should be appraised under that procedure and that the seven criteria set out in the 2017 Guidance were lawful. He saw no scope for any refutable presumption in interpreting the Guidance that all the health technologies intended for use in the treatment of rare or very rare diseases should be appraised under the HST procedure.

Ground 2 – The objective interpretation

The Claimant argued that the judge had failed to recognise that interpretation of the Guidance was an objective matter to be determined by the Court but the Court of Appeal found that the judge had not fallen into that error.

Ground 3 – “the target patient group is distinct for clinical reasons” (Criterion 2)

The Court held that PKU sufferers who are responsive to Kuvan are distinct from PKU sufferers who are not responsive and that this distinction was clinical. The fact that the licensing application recognised that not all patients with PKU would respond to Kuvan, allowed a degree of judgment to the treating physician, so that the drug was only prescribed to those who are responsive to it and this did not detract from the conclusion that patients who were responsive could be regarded as a distinct group for clinical reasons. Therefore, whilst the Court of Appeal did not reach a final decision on the point, the better view was that Criterion 2 was satisfied in the present circumstances.

Ground 4 – “the technology is expected to be used exclusively in the context of a highly specialised service” (Criterion 4)

The Court of Appeal accepted NICE’s argument that the reference to highly specialised service in Criterion 4 had a specific meaning and was distinct from “highly specialist” in the context of NHS terminology. The primary readership of the 2017 Guidance was expert decision-making groups together with medical professionals and persons engaged in the pharmaceutical industry. When viewed in this context, reference to “highly specialised service” in Criterion 4 is a reference to a service which is not only commissioned nationally by NHS England but is listed in the Highly Specialised Services List.

Ground 5 – “the target patient group … is so small that treatment will usually be concentrated in very few centres in the NHS” (Criterion 1)  

The Court found that given the decision made on Criterion 4, there was no need to decide whether this criterion had been applied properly, though if Criterion 1 had been decisive, it would probably have been necessary to remit this issue to NICE so that a decision could be made on the correct legal basis.

The Court finally suggested that all of the criteria for appraisal of a “highly specialised health technology” under the HST procedure should be set out in plain language so that it is readily understood by patients and those caring for them.

Conclusion

The case is therefore an example of a patient seeking to use judicial review to make a medicine more freely available by seeking to require NICE to adopt a different procedure but also demonstrates that a Court will not lightly find that a regulator such as NICE has misapplied the statutory criteria. In this case the difficulty for the claimant was that they needed to show that NICE had been wrong on three out of seven criteria. The Court of Appeal was inclined to agree on one or two of those three but was not persuaded on all three.

 

Andrew Lidbetter
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Nusrat Zar
Nusrat Zar
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Jasveer Randhawa
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High Court considers concept of “rolling” judicial review

The High Court has considered the concept of a continuing act or failure to act by a public body being the subject of a ‘rolling’ judicial review claim in R (Ali Raja & Anor) v London Borough of Redbridge [2020] EWHC 1456 (Admin).

Key points

  • The conventional approach to judicial review is for the claimant to identify and challenge a specific decision made by a public body on a specific date.
  • However, a ‘rolling’ or ‘evolving’ judicial review, where the decision(s) being challenged is deemed to be ongoing rather than occurring on a specific date, can be appropriate in certain limited circumstances. This can include where a public body has a continuing statutory discretion or duty to act in a certain way and has continually failed or refused to do so.
  • The concept of rolling judicial review can allow the Court to consider a case as the claim and circumstances progress, providing a degree of procedural flexibility which may not otherwise be available.

Background

The claimants in Ali Raja were two adult men with severe physical and learning disabilities who lived with their mother. In 2017, the Defendant local authority assessed both men as having night-time care needs, which required them to be repositioned several times a night. At the time, their mother was assessed as being capable of carrying out the repositioning single-handedly, notwithstanding her own health conditions.

By June 2019, the mother’s health had deteriorated such that she felt unable to continue repositioning the Claimants on her own. The Claimants’ solicitors made a series of requests to the local authority that it exercise its power under section 19(3) of the Care Act 2014 to provide interim care to meet the urgent care needs of the Claimants, including night time assistance with repositioning, pending a full reassessment of care needs. The local authority repeatedly refused the requests.

In December 2019, the Claimants commenced judicial review proceedings for: (i) an interim injunction requiring the local authority to fund interim care under section 19(3); and (ii) a final mandatory order requiring the local authority to provide the same. On the Judicial Review Claim Form, the “Date of Decision” was stated to be “ongoing“.

The High Court granted the interim relief sought, and the Defendant sought to resist the final order sought by the Claimants for the continuation of interim care.

Judgment

In handing down judgment, Fordham J noted that the conventional approach to judicial review is to challenge a specific decision made by a public authority on a specific date, identified at the outset by the claimant on the claim form. The Court observed that in many claims this approach brings focus and discipline, including in relation to the question of whether a claim has been brought sufficiently promptly.

However, Fordham J noted that in some claims the claimant does not seek to challenge a specific decision on a specific date, but rather a continuing failure or refusal to act. Additionally, whilst some decisions taken by public authorities cannot be retaken, in many instances it is open to authorities to review and reconsider their decisions. Often, it is desirable for them to do so.

Fordham J noted that the Claimants were seeking to challenge a decision regarding the exercise of a continuing statutory function, namely a continuing request for a particular care provision response and a continuing refusal of that request. The consistent central issue was whether the requested response was, in all the circumstances, the sole justifiable response such that the refusal was unreasonable in a public law sense.

Fordham J cited the Court of Appeal’s judgment in R (XY) v Secretary of State for the Home Department [2019] 1 WLR 1297, in which the Court considered previous case law on rolling judicial review and concluded:

“there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as “rolling” or “evolving” and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties.” (paragraphs 60 – 62).

Fordham J considered that the facts in Ali Raja were such that the case called for and illustrated the appropriateness of procedural flexibility which rolling judicial review provides. At each interim hearing, the Court had considered whether, on the basis of the material available to the Court as at that date, the Defendant was in breach of its duties. By the time of the substantive hearing, the Claimants had already obtained the urgent care required through interim relief. That interim relief would continue in force until Fordham J gave his judgment, at which point it would fall away and Fordham J’s judgment and any order made by him would bite:

The Court made a final mandatory order that the Defendant provide urgent interim care, pending reassessment.

Conclusion

The conventional approach to judicial review will continue to be for the claimant to identify and challenge a specific decision made by a public body on a specific date. However, Ali Raja indicates that in some limited cases where a decision has been made in the exercise of ongoing statutory functions and/or is a decision of a continuing nature, the claimant may not be required to identify a specific decision date and can instead describe the alleged unlawful decision as ongoing. This approach will allow the court to consider a case as the claim and circumstances progress, providing a degree of procedural flexibility which may not be available under the conventional approach.

Andrew Lidbetter
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Nusrat Zar
Nusrat Zar
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Jasveer Randhawa
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Antonia Smith
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Government’s terms of reference for review of the judicial review process

Upon the Government announcing on 31 July a review of judicial review and the membership of the review panel, the Government also published its terms of reference (the “Terms of Reference”) for the review. The review will focus on whether reform to the judicial review process and other aspects of public law decision making is needed (the “Review”). These Terms of Reference give further guidance as to the scope and purpose of the Review, as well as providing insight as to the types of considerations that will be focussed on.

In particular, the Terms of Reference state that the focus of the Review will be to “examine trends in judicial review of executive action, in particular in relation to the policies and decision making of the Government”. It is clear that the Review is intended to be wide-ranging in its scope, with a note to the Terms of Reference stating that it will consider public law control of all UK-wide and England & Wales powers, whether they be statutory, non-statutory or prerogative powers. The Terms of Reference also make clear that the Review will extend to all cases involving public law decision making and not just the judicial review process.

The particular issues included in the Terms of Reference are considered further below. While an enormous amount could be said in relation to the issues raised in the Terms of Reference, at this stage we have chosen to highlight a few key points.

Possible codification of aspects of substantive public law

The Terms of Reference require the appointed panel to consider whether substantive public law should be codified into statute and, in particular, the law on the amenability of public law decisions to judicial review by the courts and the grounds of illegality.

Currently, the substantive law behind judicial review, such as the grounds for bringing a claim, generally stems from the common law. On procedural aspects, legislation such as s31 of the Senior Courts Act 1981 simply regulates the judicial review procedure, rather than being the source of the substantive law.

The notes to the Terms of Reference query whether placing the substantive law on a statutory footing would promote clarity and accessibility in the law and increase public trust and confidence in judicial review. However, for example, were the ground of irrationality to be drafted into statute, then this could give rise to the risk of ambiguity over the meaning of that word and how it is to be applied in the particular legislative and factual context facing the court in a given case. Indeed rather than promote clarity the codification could generate greater uncertainty and hence further litigation. The possibility of codification also raises questions over whether any statutory wording will place limitations on the courts’ ability to adapt the law to meet new contexts, compared with the arguably greater scope afforded to it under the common law. It is possible to debate the merits or otherwise of this but it should be noted that this is how the substantive law has generally evolved. Having said that, insofar as there is any focus in the Review on the judges considering issues of proportionality, this has come about through the UK Government’s decision as enacted by Parliament to incorporate EU law (at least until Brexit occurs) and the Human Rights Act 1998.

Possible changes to the law on justiciability

The Terms of Reference state that the Review will consider:

  1. Whether the law on issues of justiciability should be clarified and whether there are any subjects/areas where the issue of whether the exercise of a public power or function is justiciable, could be considered by the Government; and
  2. For justiciable issues: (a) on what grounds the courts should be able to find a decision to be unlawful; (b) whether those grounds should depend on the nature and subject matter of the power; and (c) what remedies should be available in relation to those grounds.

It is striking that the Government has queried whether questions of justiciability might be determined outside of the courts. Issues of justiciability typically involve a court considering whether it has the expertise to reach a judgment on the issue in question. It would therefore be surprising if this question were taken away from judges who are arguably best-placed to consider this particular question.

Regarding the issue at 2(a) above, the grounds of challenge are based on legal principles which the courts have carefully developed over a long period of time. As with the case in relation to codifying substantive public law discussed above, there is a risk of unintended consequences occurring if Parliament seeks to codify what these grounds should be, by creating ambiguity or limitations where they did not previously exist. There is also the question of whether including a list of grounds in statute can stultify the adaptability of the law over time or cause it to fail to keep pace with modern developments. Any codified grounds of review may suffer from having a lack of guiding principles or objectives such as principles of good government and the separation powers as well an absence of fundamental rights considerations, which have underpinned the evolution of these grounds in the common law to date.

The notes to the Terms of Reference refer in the context of justiciability to what is described as a historical distinction between the questions of whether: a) a power has been exercised outside its scope (which has traditionally been subject to judicial review) and; (b) whether a power has been unlawfully exercised even if it is within its scope (which is traditionally not subject to court intervention). Notably, they highlight the Government’s apparent dissatisfaction at how “over the course of the last forty years (at least)” this distinction has “arguably been blurred by the Courts” and argue that unlawful exercise of power is now treated the same as a decision taken out of the scope of power and therefore considered null and void, questioning whether this is the right approach. This is interesting as cases such as Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 which established Wednesbury unreasonableness and was dated over 70 years ago, show that in fact the courts have arguably been grappling with questions of unlawful exercise of power (and not just decisions exercised outside the scope of the power) for a long time.

The Terms of Reference in this context seem aimed at discontent with cases such as R (Miller) v The Prime Minister; Cherry and ors v Advocate General for Scotland [2019] UKSC 41, in which the Supreme Court found that the Prime Minister’s advice to Her Majesty to prorogue Parliament for an extended period was unlawful and void. The case involved the Supreme Court determining that even though the Prime Minister’s advice to Her Majesty fell within the scope of his executive prerogative powers, in this instance it was still amenable to judicial review i.e. justiciable. Therefore, the court was able to go on to consider the lawfulness of this exercise of power. This case was hailed by some as a significant clarification as to the limits on the executive’s prerogative powers, however, the Terms of Reference seem to query whether such levels of court intervention are appropriate or should continue. It should be borne in mind that courts considered judicial reviews of the prerogative long before the prorogation of Parliament case.

Given that previous attempts to oust the jurisdiction of the court through ouster or privative clauses have had limited effect in the past, the Review will need to consider carefully any limitations on the courts’ jurisdiction that it recommends be put into place.

Consideration of procedural reforms to judicial review

The Terms of Reference require consideration of whether procedural reforms to judicial review are necessary, in general to ‘streamline the process’ 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 judicial review proceedings; and

(g) on costs and interveners.

In particular, the notes consider the “number of procedural issues of possible concern that have been raised over the years” and the opportunity to review the general machinery of judicial review as part of this “comprehensive assessment” of judicial review. Back in 2012-2013, the Government consulted on various proposals for reform of judicial review “to stem the growth in applications for judicial reviews” and implemented a number of changes off the back of that consultation including a reduction in the time limits for bringing certain categories of judicial review claims. Other changes that have been introduced over the years included an amendment to s31 of the Senior Courts Act (by s84 of the Criminal Justice and Courts Act 2015) aimed at restricting relief; in cases where the court considers it “highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred” then it must refuse to grant relief. Similarly, s87 of the Criminal Justice and Courts Act 2015 appears aimed at deterring interveners by increasing the likelihood of circumstances where they would be at risk of adverse costs orders.

The general direction of reform of judicial review in previous years therefore appears to have been to seek to make claims harder from a procedural perspective. It would be concerning if the Review were to result in tipping the balance of the judicial review system such that the ability to properly seek review of public bodies’ decisions is curtailed unduly.

Comparison with reforms in Australia

A note to the Term of Reference states that the Review will consider the experience in other common law jurisdictions outside the UK, picking out Australia as a key example “given the legislative changes made there”. It is therefore possible that the Review will consider the federal legislation introduced as part of the administrative law reforms in Australia in the 1970s, called the “Administrative Decisions (Judicial Review) Act 1977” as well as various state and territory equivalents introduced subsequently. This legislation was designed to simplify the remedies available to the court and simplify the procedure for judicial review. The federal legislation codified the common law grounds of judicial review into a simple, non-exhaustive list of grounds and conduct that are reviewable. The legislation clarified that both “decisions” and “conduct” are reviewable. It granted a statutory right to reasons for a decision (which was not available previously), amongst other things. The reforms in Australia also established a Federal Administrative Appeals Tribunal which allows for an independent merits review for specified decisions, a trend that has been followed in most states and territories.

It is, however, important to bear in mind that the Australian legislation was introduced in the 1970s, prior to significant developments in modern administrative law, in order to overcome what was then considered in Australia to be a technical, narrow and complex process for seeking judicial review with opaque grounds. There were also specific constitutional limitations in Australia that led to the enactment of the judicial review legislation.

The Australian legislative solution has also not been without criticism. Some commentators consider that codifying grounds and procedures in statute has had a stultifying effect on the development of judicial review compared with a pure common law system. Further, a separate avenue for judicial review exists under s 75(v) of the Australian Constitution which is constitutionally protected. Different rules on areas such as standing and justiciability operate between the two systems, and s 75(v) review cannot be ousted by a privative clause. This has led to parties commencing proceedings under both avenues and suggestions of a “fragmented” system of judicial review in Australia.

Conclusion

The Terms of Reference highlight that there is much scope for the Review to result in change to the judicial review process and substantive public law, whether for better or worse. It is notable that there has been no discussion about whether there will be a consultation on any changes or reform proposed by the Review. Given the importance of many of the issues contained in the Terms of Reference, it is envisaged that many organisations and individuals would want to seek to feed in their views to the Government and other Parliamentarians on these topics.

Whatever reform is ultimately decided upon and introduced, will have long-term and far-reaching consequences for any future governments, whichever party they are from. There will be those who might not want to see many judicial reviews of Governments and local authorities governed by one party who might in due course be rather more pleased to see court challenges to administrations controlled by another party. Given the changing control of administrations over the course of time this is a point everyone will need to bear in mind.

Andrew Lidbetter
Andrew Lidbetter
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Nusrat Zar
Nusrat Zar
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Jasveer Randhawa
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Hannah Lau
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Judicial reviews of inquiries

Two Divisional Court judgments have considered the position regarding the application of Article 6 of the European Convention on Human Rights (“ECHR”) (the right to a fair trial) in judicial review proceedings regarding a decision not to hold an inquiry, and the timeframe within which a judicial review of an inquiry under the Inquiries Act 2005 must be brought.

Key points

  • In order to engage the right to a fair trial under Article 6 ECHR, there must be a determination of civil rights and obligations.
  • Breaches of the state’s Article 3 ECHR duty to investigate allegations of ill-treatment can give rise to civil rights; for example, if individuals bring claims for damages associated with these breaches.
  • However, any duty to investigate Article 3 breaches by way of a public inquiry is not a duty owed to claimants who are not victims and therefore has nothing to do with such claimants’ civil rights.
  • Any judicial review of an inquiry constituted under the Inquiries Act 2005 must be brought within 14 days of the claimant becoming aware of the decision in question. The courts will uphold this tight timeframe unless there are exceptional circumstances.

Application of Article 6(1): R (Reprieve) v Prime Minister [2020] EWHC 1695 (Admin)

Background

In 2010, the Prime Minister announced that an independent inquiry would be established to investigate the alleged involvement of the UK intelligence services in the rendition and mistreatment of detainees held by foreign security services following the events of 11 September 2001. A report on the inquiry’s preparatory work was published in December 2013 and the Government invited Parliament’s Intelligence and Security Committee to investigate into the issues raised in the report; two separate reports covering these issues were published in June 2018. The Government announced, on 18 July 2019, its decision not to hold a public inquiry on the basis that various steps had already been taken to improve policy and practice.

The claimants, a human rights organisation (with particular expertise in the investigation of human rights breaches abroad) and two Members of Parliament, launched a judicial review challenging the Prime Minister’s decision not to conduct an inquiry, on the grounds that this decision constitutes a breach of Article 3 ECHR. Article 3 ECHR provides for freedom from torture, inhuman and degrading treatment or punishment. The claimants argued that the state was under a positive obligation to investigate the allegation of ill-treatment and the defendant’s decision not to hold an inquiry breached that obligation. The claimants also argued that the decision was irrational because the steps taken by the Government were not a sufficient reason for abandoning the previous decision that a public inquiry was necessary.

The Divisional Court was called upon to establish at a preliminary hearing inter alia whether Article 6(1) ECHR applied to the judicial review proceedings.

Judgment

The Divisional Court stated that its task in establishing whether Article 6(1) applied was a narrow one rooted in two indisputable principles: (1) a fair trial is a cornerstone of the rule of law and (2) the court’s function in judicial review proceedings is to ensure the scrutiny of executive action in the public interest. Consequently, even though the court was sympathetic to the claimants’ argument that the intelligence service does not operate above the law, its scope was very defined.

Article 6(1) establishes that “in the determination of his civil rights and obligations… everyone is entitled to a fair and public hearing”.  The claimants argued that Article 6(1) applied to the judicial review proceedings because the decision not to hold a public inquiry breached the defendant’s duty to hold an effective investigation into complaints of human rights abuses under Article 3 ECHR. The court accepted that breaches of the state’s Article 3 investigative duty could give rise to civil rights; for example, if individuals brought claims for damages associated with these breaches. However, in any public inquiry, the claimants would seek a determination on behalf of other individuals whose Article 3 rights might have been breached. The court concluded that the claimants could not possibly be regarded as victims of Article 3 violations. It followed that any duty to investigate Article 3 breaches by way of a public inquiry was not a duty owed to the claimants as victims. In these circumstances, it was difficult to envisage how the present judicial review proceedings – which concern the investigative duty – had anything to do with the claimants’ civil rights. The court therefore did not accept the claimants’ submission that Article 6(1) was engaged in these proceedings.

It is interesting to note the court’s observation that even though Article 6(1) was not engaged, the decision’s legality would still be appropriately examined under conventional judicial review principles. The judgment appears to be another example of the willingness of the courts to utilise domestic principles of public law to ‘plug the gaps’ where EU law and/or the ECHR does not apply.

Timescale for starting judicial reviews of inquiries: R (EA and Anor) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin)

Background

Following the Manchester Arena bombing, on 22 October 2019, the Secretary of State for the Home Department opened an inquiry to investigate the circumstances surrounding how 22 people lost their lives in the attack. The Chairman of the Inquiry announced on 21 April 2020 his decision not to grant the claimants, three survivors of the bombing, core participant status. Twenty-three days later the claimants invited the Chairman to reconsider that decision, but he declined to do so and ten days later the judicial review claim was issued. The High Court was called upon to decide whether the application for judicial review was made out of time and if so whether time should be extended.

Judgment

The Inquiries Act 2005 provides that any judicial review of a decision made by an inquiry panel or by a Minister in relation to an inquiry must be brought within 14 days after the day on which the applicant becomes aware of the decision, unless that time is extended by the court. The Divisional Court held in this case that the proceedings should have been commenced within 14 days of the Chairman’s ruling of 21 April 2020 on core participant status.

The court also ruled that an extension of time would not be granted. In making its decision, the court stressed the importance of complying with the time limits for starting proceedings and that this is especially the case with public inquiries to ensure the inquiry is conducted efficiently. It noted that delays in relation to inquiries cause distress to those involved, impact the ability of the relevant authorities to learn from their mistakes, and cause expense. The inquiry had already been commenced so these factors weighed even more. The court was also swayed by the fact that the claimants had been late in filing their initial application to join the inquiry.

This judgment makes clear that unless there is a truly exceptional reason, a court will not extend time for judicial review challenges of decisions of public inquiries. The onus is firmly placed on prospective judicial review claimants to ensure their application is made in time. The judgment also clearly indicates that where there is any doubt as to which of a series of decisions is the key decision for the purposes of commencing judicial review proceedings, the safest option from the claimant’s perspective is to assume that time runs from the date of the earliest decision.

Andrew Lidbetter
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Nusrat Zar
Nusrat Zar
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Jasveer Randhawa
Jasveer Randhawa
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Government launches panel to consider the judicial review process

On the afternoon of Friday 31 July the Government announced that it had appointed a panel of experts (the “Panel”) to examine if there is a need to reform the judicial review process (the “Review”).

Background

The Conservative Party in its 2019 manifesto (at page 48) committed to establishing a Constitution, Democracy and Rights Commission (the “Commission”). Its stated purview was to examine the broader aspects of the British constitution, including the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice. The manifesto committed to ensuring that judicial review would be available to protect the rights of individuals against the state, while ensuring that judicial reviews could not be “abused to conduct politics by another means or to create needless delays”.

There has been conjecture that the inclusion of the Commission in the 2019 manifesto came as a result of the Government’s defeat in R (Miller) v The Prime Minister; Cherry and ors v Advocate General for Scotland [2019] UKSC 41. In that case the Supreme Court unanimously found that the Prime Minister’s advice to Her Majesty the Queen to prorogue Parliament for an extended period was unlawful and void, and quashed the consequent Order in Council effecting the prorogation. (See further details in respect of this case.)

The Government states that the Review delivers on a manifesto commitment to ensure the judicial review process is not open to abuse and delay.

Purpose of the Review 

The Review will consider whether the “right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government”. Although the Government has not released detailed terms of reference, it has indicated that the Panel will consider:

  • whether the terms of judicial review should be written into law;
  • whether certain executive decisions should be decided on by judges;
  • which grounds and remedies should be available in claims brought against the government; and
  • any further procedural reforms to judicial review, such as timings and the appeal process.

Process of the Review

The Government has stated that the Review’s work forms part of the Lord Chancellor’s duty to defend the courts and judiciary that lie at the heart of British justice and the rule of law. It will do so by examining a range of data and evidence, including relevant caselaw, on the development of judicial review and consider whether reform is justified. The review will be chaired by Lord Edward Faulks QC together with five other panellists.

Any recommendations for reform put forward by the Panel will be considered by the Lord Chancellor and the Chancellor for the Duchy of Lancaster and Minister for the Cabinet Office, the Right Honourable Michael Gove MP. The Panel is due to report back later this year.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
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Shameem Ahmad
Shameem Ahmad
Associate
+44 20 7466 2621

Judicial Review – Strategies for Pharmaceutical Companies

In the latest episode of HSF’s webinar series on the pharmaceutical sector, Andrew Lidbetter, Sanam Zulfiqar Khan, Mark Smyth and Lourdes Fraguas discuss judicial review and strategies for pharmaceutical companies.

The webinar provides a summary of actions by pharmaceutical companies challenging decisions of public bodies in the UK and a comparative perspective for Australia and Spain. Continue reading

Webinar on recent developments in judicial review

HSF public law partner Nusrat Zar chairs and speaks at a recent LexisNexis webinar on key developments in judicial review, which includes a discussion on recent caselaw regarding the duty to consult, human rights in judicial review and the interaction of private and public law.

You can watch the webinar via this link.

Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465

Today in a unanimous decision the Court of Appeal found that the current Government policy in relation to the expansion of Heathrow Airport is unlawful

Background

The Court of Appeal has today handed down two related judgments both concerned with the Government’s policy in relation to the proposed expansion of Heathrow by way of a third runway, one dealing with the detail of how expansion should take place and the other considering the planning aspects and process of the policy. This latter case originated as five judicial review applications at the High Court. The policy in question was set out in the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the south east of England” (the “ANPS”), which was designated by the then Secretary of State for Transport under section 5(1) of the Planning Act 2008.

The appellants in this appeal ranged from local authorities and climate change campaigners to the Mayor of London. The Court of Appeal was unconvinced by the appellants’ attempts to overturn the first instance judgment on various issues relating to the Habitats Directive and the Strategic Environmental Assessment Directive and broadly agreed with the judgment of the Divisional Court on many of those aspects.

And then there was one…

The appellants succeeded today on only one ground: the Court of Appeal found that the designation of the ANPS was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement on climate change.

The question upon which the decision turned was what is “Government policy” relating to climate change, pursuant to section 5(8) of the Planning Act which requires that the reasons for the policy set out in the ANPS “must … include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change” [emphasis added].

The court found that the Government’s commitment to the Paris Agreement was “clearly” part of Government policy by the time of the designation of the ANPS because the Paris Agreement was ratified and there were firm statements re-iterating Government policy of adherence to the Paris Agreement by relevant Ministers. The concept of “Government policy” did not have any specific technical meaning, but should be applied in its ordinary sense. In particular, there was nothing to warrant limiting the phrase “Government policy” to mean only the legal requirements of the Climate Change Act. The concept of policy is necessarily broader than legislation.

The Court of Appeal concluded that the Paris Agreement was not taken into account by the Secretary of State in the preparation of the ANPS and so there was no explanation provided as to how it was taken into account. Indeed it appears that the Secretary of State received legal advice that not only did he not have to take the Paris Agreement into account but that he was legally obliged not to take it into account, which amounted to a material misdirection of law at an important stage of the process.

Potential consequences

Although the appellants won today and at the time of seeing the draft judgment the Government did not seek to appeal the decision to the Supreme Court, this is not necessarily the end of the matter.

The court decided not to quash the ANPS. Instead, it declared that the ANPS in its present form is unlawful and cannot have legal effect, which gives the Secretary of State the opportunity to reconsider the ANPS. The court stated that the initiation, scope and timescale of any such review must and will be a matter for the Secretary of State to decide. The court also explained that the duty in section 5(8) does not require the Government to conform to its own policy commitments, “simply to take them into account and explain how it has done so”.

Importantly, the court repeatedly emphasised the line between its judgment and the politics of the third runway:

“[We] are required to consider whether the Divisional Court was wrong to conclude that the Government’s policy in favour of the development of a third runway at Heathrow was produced lawfully. That is the question here. It is an entirely legal question. …”

“We have made it clear that we are not concerned in these proceedings with the political debate and controversy to which the prospect of a third runway being constructed at Heathrow has given rise. That is none of the court’s business…..”

“Our decision should be properly understood. We have not decided, and could not decide, that there will be no third runway at Heathrow.”

These comments reflect the well-established purpose and role of judicial review, aimed at ensuring that the Executive is held to account in its decision making but without straying into the sphere of policy making and politics.

The judgments can be found here: R (on the application of (1) Heathrow Hub Limited (2) Runway Innovations Limited) v Secretary of State for Transport [2020] EWCA 213 and R (on the application of Plan B Earth and others) v Secretary of State for Transport [2020] EWCA 214.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Shameem Ahmad
Shameem Ahmad
Associate
+44 20 7466 2621

High Court gives guidance on conduct of non-statutory inquiries

In R (on the application of Clarke and Others) v Holliday [2019] EWHC 3596 (Admin), the High Court dismissed an application for permission to apply for judicial review of decisions taken by the Chairman of an independent, non-statutory inquiry (the “Inquiry”). In doing so the court proceeded on the basis that the Inquiry was amenable to judicial review but did not reach a concluded view on that point given that it had dismissed all of the grounds of challenge.

Key points

  • Non-statutory inquiries may be amenable to judicial review and should comply with public law principles (such as procedural fairness).
  • The courts will carefully examine whether those tasked with making public law decisions have engaged in unlawful delegation.
  • The requirements of “Maxwellisation” (and other elements of procedural fairness) are limited and public bodies should be wary of voluntarily adding other stages to the process.

Background

The Inquiry arose out of the procurement process which the Nuclear Decommissioning Authority (the “NDA”) had conducted in relation to the decommissioning of the twelve Magnox nuclear sites.

That procurement competition had concluded in April 2014, at which time the NDA awarded a contract worth around £6 billion to Cavendish Fluor Partnership (“CFP”). Two members of the runner-up consortium then brought claims challenging the procurement process, which were ultimately settled (following a finding by the High Court that the NDA had made errors in the procurement competition) for a total of just under £100 million. Subsequently the NDA terminated the contract it had awarded to CFP nine years early.

The Terms of Reference of the Inquiry, which was established by the Secretary of State for Business, Energy and Industrial Strategy in the wake of these events, required the Chairman, Mr Steven Holliday, to investigate the procurement process and subsequent events.

The Inquiry established the following four-stage process for providing evidence and including critical comments in the final report:

  • document assistance interviews;
  • evidence-gathering interviews;
  • potential criticism interviews; and
  • a representations process.

During stage 3, anyone whom the Inquiry was considering criticising in its final report would receive a letter inviting them to interview and setting out the potential criticisms and relevant documents. The Inquiry would then consider whether to include the criticism in the final report. During stage 4 the Inquiry would then send extracts of the draft report containing the proposed criticisms and the accompanying evidence to the relevant individuals, who could make written representations before the report was finalised. Before sending extracts of the draft report (or accompanying evidence) to individuals the Inquiry required them to sign a confidentiality undertaking which prohibited them from sharing the material with anyone else.

The claim and judgment

The five individual claimants were members of NDA’s senior management team during the procurement process. They were each notified by the Inquiry that they may be subject to criticism in the Inquiry’s final report.

Four of the five claimants participated in stage 3. They were invited to participate in stage 4 however refused to do so pending resolution of their claim (as they refused to sign the confidentiality undertaking). The other claimant did not participate in stage 3 (because at that time the Inquiry had not identified a criticism of him) but was invited to participate in stage 4 and signed a confidentiality undertaking accordingly.

Challenges were brought on a number of grounds, including that: Mr Holliday had unlawfully delegated his decision-making functions to his staff; that the Inquiry had failed in its duty to disclose material to the claimants; and that the Inquiry had unfairly prohibited information-sharing through the use of confidentiality undertakings.

In addition to defending these grounds, the defendant claimed that the Inquiry was not amenable to judicial review.

Unlawful delegation

The claimants alleged that Mr Holliday had unlawfully delegated his decision-making functions by permitting staff members to reach provisional findings during stage 3 (the “potential criticisms” stage), which he had been unduly influenced by. In support of their position, the claimants relied on the Hong Kong Court of Appeal case of Dato Tan Leong Min v Insider Dealing Tribunal [1999] HKC 83 which noted that “Counsel for the Tribunal should never be invited to assist in the writing of the report or to make submission upon the draft report”.

Although the court found this ground to be arguable, and so granted permission to apply for judicial review, it ultimately dismissed the claim. This was because, having examined the evidence, it was clear that no decisions had been made at stage 3 but rather the potential criticisms had been “formulated as a tool for exploring issues”. It was permissible for members of the Inquiry team to compile such potential criticisms; the important point was that “sole responsibility for formulating and adopting final decisions as to the criticisms” remained with Mr Holliday.

While the court did not find that the Inquiry’s conduct was unlawful, it did consider that the manner in which stage 3 had been carried out created “unnecessary anxiety and could have been better handled”. In particular the drafting of the potential criticisms (some of which appeared to be expressed in terms which were conclusive) could have been improved.

Interestingly the court also found that the Inquiry “need not have adopted” the two stage process set out in stages 3 and 4. As a matter of procedural fairness, only the latter stage (often known as “Maxwellisation”, whereby provisional findings which might adversely affect a person are put to them with an opportunity for them to respond) was necessary.

Other grounds

The court refused permission to apply for judicial review in relation to each of the other grounds. It found that the challenge on the basis of the lack of disclosure was premature (as disclosure would occur during stage 4 which had not yet happened) and that the Inquiry’s use of confidentiality undertakings was lawful in the circumstances (noting that the Inquiry had said that it would consider requests to share information on a case-by-case basis).

Amenability

Although (having dismissed all grounds) the court did not make a finding on whether the Inquiry was amenable to judicial review, the judge did indicate his view that the Inquiry was exercising a public function. The judge emphasised that this is a fact specific question and that, in his view, non-statutory inquiries will not always be amenable to judicial review.

Comment

This case illustrates that those tasked (whether by Parliament, Government, or otherwise) with making public law decisions must ensure that they do not unlawfully delegate their functions. In an inquiry context, this is likely to mean that the Chair must retain responsibility for formulating and adopting criticisms and recommendations. In addition, those engaged in preparing reports (or commenting on draft reports) which are subject to a “Maxwellisation” process should be mindful of the court’s comments about the limits to this duty and be cautious of voluntarily adding steps to the process which are not required as a matter of procedural fairness.  Although in this case the flaws with the execution of those additional steps were not sufficient to make the process unlawful, this case shows that the courts will still scrutinise the process (which here resulted in criticism of the Inquiry).

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
James Wood
James Wood
Senior Associate
+44 20 7466 2306

Labour’s plans for energy and medicines – public law analysis

We have published two papers which consider the impact of the Labour Party’s recently announced policies on two heavily regulated sectors, namely the energy and pharmaceutical industries. The policies proposed in relation to both sectors, which are similar to those now also proposed in other industries (such as the water industry and in relation to Royal Mail) are central aspects of Labour’s nationalisation agenda. Taking forward such policies would engage key public law principles and would give rise to likely challenges on the basis of the level of compensation payable, amongst other things.

In Labour’s recent report entitled “Medicines for the Many”, Labour has proposed using existing powers of “Crown Use” and “compulsory licenses” to acquire patented information for the state’s purposes. Labour’s report also suggests that a future Labour government would seek to limit the basis on which compensation would be payable to holders of such patents. In addition to concerns which these proposals raise under intellectual property and investment treaty law, they give rise to questions about the compatibility of such measures with the right to property, which is protected by the common law, the EU Charter, and the European Convention on Human Rights (as incorporated into domestic law by the Human Rights Act 1998). For more information please see our briefing paper here.

Similarly, in its manifesto, the Labour Party has set out in more detail the measures which it proposes in relation to the energy industry. Broadly these measures would involve the nationalisation of significant parts of the energy sector (including the network companies and the energy supply businesses of the Big Six). As with its medicines proposals, if a future Labour government sought to implement these policies, we envisage challenges being brought on public law and human rights grounds given that they would involve interference with the companies’ and investors’ property. For more information on these issues, including in relation to steps that can be taken to protect property rights, please see our briefing paper here.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
James Wood
James Wood
Senior Associate
+44 20 7466 2306