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.

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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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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.

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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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James Wood

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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

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

Sahil Kher

Sahil Kher
Associate
+44 20 7466 6440

HSF responds to the Call for Evidence for the Government’s Independent Review of Administrative Law

Herbert Smith Freehills’ public law team has responded to the Government’s Call for Evidence for the Independent Review of Administrative Law (“IRAL”) which was announced on 31 July 2020. In a previous blog post, we discussed the Government’s publication of the IRAL’s Terms of Reference.

The Call for Evidence

The 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. One of the overriding concerns was whether procedural reforms to judicial review are necessary to “streamline the process” of judicial review.

The questions put forward in the Call for Evidence focused on a number of issues most of which were alluded to in the Terms of Reference, including whether:

  • the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute;
  • the legal principle of non-justiciability requires clarification;
  • the current rules are too lenient on unsuccessful parties or applied too leniently by the courts;
  • the costs of judicial review are proportionate;
  • the remedies available are too inflexible;
  • settlement is commonplace;
  • ADR is suitable to judicial review and should play more of a role; and
  • the rules of public interest standing are too lenient.

Our Response

In our response, we put forward the view that the current mechanism for judicial review and wider administrative law functions well and is not in any urgent need of major reform. The key objective behind judicial review is and always has been to ensure that government departments and public bodies are able to properly and effectively discharge their functions, according to the law.

In this vein, we believe that there is no need to place the substantive law of judicial review on a statutory footing nor is there a need to change the current law on justiciability. Neither of these initiatives are likely to promote clarity and accessibility in the law, nor increase public trust and confidence in the judicial review process.

From a procedural standpoint, we noted the 2012 – 2013 Government consultation on proposals for reform of judicial review which led to a number of procedural changes aimed at reducing the number of judicial review claims brought by filtering out unmeritorious claims and reducing delays. 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. We do not believe there is any need for further reform along these lines. Indeed, further reform would risk tipping the balance of the judicial review system such that claimants’ ability to properly seek review of public bodies’ decisions is curtailed unduly, giving rise to serious concerns over access to justice.

On the detail of particular procedural suggestions, we consider that the need for proper compliance with the pre-action protocol should continue to be emphasised by the courts in order to minimise the need to proceed with judicial review. To this end, we are reluctant to see any shortening of the time limits for filing claims which would inevitably impact the ability to fully engage in the pre-action process.

By contrast, we do not think that formal methods of ADR or settlement are generally suitable to many of the situations which our clients face in the context of judicial review. Nor are further reforms to the current test for standing, the arsenal of remedies available to the courts or the costs regime necessary.

Although the Terms of Reference queried whether reform is needed in relation to the duty of candour, the Call for Evidence did not specifically address this issue. We nonetheless considered in our response that limiting or restricting the current rules on the duty of candour would not benefit the parties to judicial review.

Lastly, we noted that one specific area which may benefit from consideration and clarification is the position on expert evidence within judicial review.

Conclusion

The Government’s Call for Evidence provided an opportunity for practitioners, observers, commentators and litigants alike to share their experience of judicial reviews with the IRAL panel but, given the fundamental importance of many of the issues, we emphasised that any concrete proposals should be subject to a fair consultation including with those who would be directly impacted by such reform and those who would be able to offer views based on their experience of practising in the area. The scope of the questions and the importance of the issues touched upon highlight the potential for any reform to have long-term and far-reaching consequences for the accountability of public sector decision making and ultimately the rule of law.

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

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

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

Sanam Zulfiqar Khan

Sanam Zulfiqar Khan
Senior Associate
+44 20 7466 2014

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

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

Antonia Smith

Antonia Smith
Associate
+44 20 7466 2550

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
Partner
+44 20 7466 2066

Nusrat Zar

Nusrat Zar
Partner
+44 20 7466 2465

Jasveer Randhawa

Jasveer Randhawa
Of Counsel
+44 20 7466 2998

Hannah Lau

Hannah Lau
Associate
+44 20 7466 2314