Court rejects challenge to new food regulations designed to tackle childhood obesity

In R. (on the application of Kellogg Marketing and Sales Co (UK) Ltd) v Secretary of State for Health and Social Care [2022] EWHC 1710 (Admin) the High Court dismissed all four grounds of a challenge brought by Kellogg to the Food (Promotions and Placement) (England) Regulations 2021 (SI 2021/1368) (the “Regulations”).

Key Points

  • The courts will take a deferential approach to policy decisions involving weighing up competing interests, particularly in areas such as public health.
  • There is no rule that prohibits the incorporation of extraneous documents into a statutory instrument by reference, provided this is permitted under the enabling legal provision.

Background

The Regulations (due to come into force on 1 October 2022) introduce restrictions on the promotion of food classified as high in fat, sugar or salt (“HFSS“) and therefore considered “less healthy”, as part of the Government’s strategy to tackle childhood obesity. The assessment of whether a particular food is “less healthy” depends on the score given under the Food Standards Agency’s existing Nutrient Profiling Model (“NPM“) which is incorporated into the Regulations by reference along with the associated technical guidance (together the “NPTG“).

Regulation 10 provides that an improvement notice may be issued by an enforcement authority where it has reasonable grounds for believing that a food proprietor is failing to comply with the Regulations. In making this provision, the Defendant relied on the authorisation contained within the Food Safety Act 1990 (the “FSA“), specifically Section 10 FSA which concerns the regulations of food preparation processes and hygiene practices (or as extended by Section 48(1) FSA “matters similar”). Section 16 FSA also enables further provisions to be made by regulation in the interest of food safety and consumer protection.  

Following the classification of a number of Kellogg breakfast cereals as “less healthy” the Claimants sought to challenge the Regulations on four grounds:

Ground 1: Regulation 10 is ultra vires as Section 10 FSA does not permit the issue of improvement notices for the subject matters concerned in the Regulations.

Ground 2: The incorporation of the NPTG by reference, as opposed to by inclusion in the statutory instrument itself, is ultra vires.

Ground 3: The Defendant failed to adequately consider the appropriateness of assessing cereal as sold (i.e. without milk) rather than as consumed (i.e. with milk), and this failure amounts to irrationality.

Ground 4: The assessment of cereal without milk disproportionately infringes the Claimants’ right to peaceful enjoyment of its possessions contrary to Article 1 of Protocol 1 of the European Convention on Human Rights (“A1P1 ECHR“).

Judgment

Ground 1

The Claimants contended that Section 10 FSA does not confer a power to enact regulations which expand the scope for issuing improvement notices, and that Regulation 10 therefore has the effect of amending primary legislation.

The court dismissed the argument that the Defendant had sought to amend primary legislation on account of the fact that Regulation 10 is a free-standing mechanism which “enlarges” the power to issue improvement notices in a way that is consistent with the aims of the FSA rather than altering Sections 10 and 11 FSA.

The court then addressed the question of whether the relevant FSA provisions confer a power on the Defendant to enact Regulation 10. After considering the relevant statutory provisions in detail, Linden J did not accept that there was any real doubt as to the existence of the power.

Ground 2

As conceded by the Claimants, there is no rule which forbids the incorporation by a statutory instrument of rules set out in an extraneous document. Whether or not this is permitted in a given case therefore depends on the construction of the enabling provision. The Claimants referred to Section 16 FSA which permits the Defendant to make provisions “by regulations [emphasis added]” to suggest that the reliance on the NPTG (which is not contained within the Regulations directly) was ultra vires. The court rejected the notion that this formulation created a requirement for the whole provision to be contained in one document and suggested that “it would be surprising if the position were otherwise” given the detailed scientific analysis which, though important, need not be spelt out in the statutory instrument.

It is worth noting here that the court also reiterated that the incorporated document must be in existence at the time the statutory instrument is laid before Parliament, and that “the effect of it becoming law is that it cannot then be changed without following whatever legislative process is required to amend or replace the statutory instrument itself”.

Ground 3A

Grounds 3A and 3B both centred on what the Claimants refer to as “the milk issue“. The Claimants argued that the Defendant was irrational in failing to conduct an assessment of the appropriateness of determining the nutritional profile of breakfast cereals without taking into account the fact that they are normally consumed with milk. Had the nutritional value of the milk been considered alongside that of the cereal, fewer products would have become subject to the restrictions imposed by the Regulations.

The court accepted that the Defendant had not been asked in any Ministerial submission to reassess the issues ventilated in formulating the existing NPM nor the process by which they were decided and the question therefore was whether the Defendant was bound to consider these matters or make further inquiries into them (as per the Tameside principle). The court concluded he was not, reasoning that it was open to him to make further inquiries as necessary (indeed he did so) and ultimately he “evidently considered that he was sufficiently well informed“.

Furthermore, the court highlighted that the relevant matters had been carefully considered in the course of the development and review of the NPM by various experts over a period of years. There had then been ample opportunity to raise the point again in a 2019 public consultation, in response to which the Claimants did not raise these issues. The court held that, “the approach stated in the NPM had been applied for more than a decade without controversy” and simply because the Claimants sought to re-open decisions taken more than a decade earlier and re-taken in 2021 “at the eleventh hour” did not render those decisions irrational or mean it would be irrational for the Defendant to proceed without making further inquiries.

Ground 3B

The court acknowledged that there was no dispute that A1P1 was engaged and that the question was therefore whether the Defendant could justify the relevant infringements, with the dispute between the parties focusing on proportionality. The court noted that although the Defendant did not personally consider the issues now raised by the Claimants under Grounds 3A and 3B, these issues were considered at length and in detail by various experts and expert bodies, including state bodies, in the period 2004-2009. The court found that the Defendant was clearly aware of the relevant considerations, and that he “evidently considered that the public interest and considerations of public health outweighed the detrimental impact on business of the measures“.

The court went on to conduct a broad analysis in which it noted that “the addition of milk does not alter the nutritional profile of the products themselves” and that the move to an “as consumed” approach would reduce the effectiveness of the NPM by introducing multiple points of uncertainty in the assessment.

The court concluded that the Defendant’s approach was both proportionate and rational.

Comment

In this judgment the court took a robust approach to the various grounds of challenge brought by the Claimants, which is to be expected in an area of social policy such as health. In relation to Ground 3 in particular, the court emphasised that “[t]his is a case in which a significant degree of deference should be accorded to the decision marker(s)“. Despite this deferential approach the courts conducted an analysis of the practical implications of the “milk issue” from various perspectives, but the court was ultimately dismissive of the notion that the NPM as currently applied would cause unfairness to the Claimants or arbitrariness in the effects on their business.

The court’s comments in relation to ground 3A demonstrate the importance of engaging early in the regulatory process and raising key legal arguments before the decision maker takes a final decision. A failure to do so is likely to weaken the ability to challenge the final decision.

Andrew Lidbetter
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Nusrat Zar
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Court finds unlawfulness in relation to Government’s Net Zero Strategy

In R (Friends of the Earth Ltd and ors) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin), the High Court partially upheld a challenge to the Government’s Net Zero Strategy (the “NZS“) under the Climate Change Act 2008 (the “2008 Act“).

Key Points

  • It is not incumbent on the Secretary of State to rely on quantitative analysis alone on climate change issues where this is not mandated by the legislation.
  • It is, however, necessary that sufficient information is provided to the relevant minister and to Parliament in order to fulfil obligations under the 2008 Act.
  • Section 3(1) of the Human Rights Act 1998 (the “HRA“) does not permit the court to interpret legislation in a way that confers greater rights protection where there is no question regarding the incompatibility of the legislation with a Convention right on an ordinary interpretation of the provision.

Background

The 2008 Act was amended in response to the UK’s obligations under the Paris Agreement, which required member states to hold the increase in the global average temperatures. Section 1 of the 2008 Act requires the Secretary of State to ensure that the net UK carbon account for 2050 meets certain benchmarks. The Secretary of Secretary is also required by statute to create carbon budgets for future periods to meet these benchmarks.

Section 13 requires the Secretary of State to prepare “such proposals and policies” as he considers will enable the carbon budgets which have been set to be met. Section 14 requires that “as soon as is reasonably practicable” after setting a carbon budget, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the budgetary periods.

Following the setting of Carbon Budget 6, the defendant Secretary of State laid the NZS before Parliament pursuant to sections 13 and 14. The Good Law Project, Friends of the Earth Ltd, and ClientEarth (the “Claimants“) sought to challenge this by judicial review on several grounds:

  • Ground 1(1): The Defendant erred in law on the basis that he was not entitled to conclude that the proposals and policies in the NZS (prepared under section 13) would enable the carbon budgets to be met.
  • Ground 1(2): The briefing material supplied to the Defendant was insufficient, meaning that he had failed to take into account relevant considerations.
  • Ground 2: The Defendant failed to include information legally required to discharge his section 14 obligations, namely an explanation for how the NZS will enable the carbon budgets to be met, an estimate of the contribution of each proposal and policy for reducing emissions, and the time scales over which the proposals will have effect.
  • Ground 3: Section 3(1) of the HRA has the effect that sections 13 and 14 should be interpreted as the Claimants contend, and not as the Defendant contends which would risk contravention of Convention rights.

Despite these issues, the Claimants acknowledged the positive value of much of the NZS. Consequently, the Claimants sought declaratory relief rather than quashing of the NZS.

Judgment

Ground 1(1)

The Claimants contended that the Defendant’s duty under section 13 required that he make an assessment of the time scales within which the measures would take effect and their impact on reducing emissions. Such an assessment required numerical predictions of the contribution which the proposals and policies would make to meeting the carbon budgets. The Claimants contended that although the Defendant was allowed to make a qualitative judgment as to whether the measures would be sufficient to meet the carbon budget, the Defendant was not allowed to use a qualitative judgment to overcome a shortfall presented by quantitative analysis.

The court disagreed with this analysis. There was nothing in the statutory scheme requiring this quantitative approach, which would have been a significant constraint on the Defendant’s ability to judge how to discharge his duty. Section 13 necessarily involves making predictive assessments into the future, which inevitably introduces uncertainty and subjective judgment. The Defendant is accountable to Parliament for his proposals and policies under section 13: he will have to answer Parliamentary questions and appear before Parliamentary Committees. This is the mechanism by which the merits, realism and efficacy of the Defendant’s policies should be challenged. Although the fact that the Defendant is subject to parliamentary scrutiny does not preclude the court’s involvement (there is no indication that the functions under section 13 are not justiciable), the obligation in section 13 does not have to be satisfied by quantitative analysis alone – it is simply a relevant consideration that should inform his decision.

On that basis this ground was dismissed.

Ground 1(2)

The question here was whether the legal information provided was sufficient to make a proper decision. The Claimants contended that the relevant omissions were:

  • (a) Lack of an assessment of the time scales over which the proposals and policies were expected to take effect;
  • (b) Failure to identify under the quantitative analysis the contribution that each proposal or policy would make to meeting the carbon budgets; and
  • (c) Failure to identify under the qualitative analysis which proposals and policies would meet the carbon budget.

The court held that only if the briefing omitted something which the Defendant (or a relevant minister) was legally obliged to take into account, and which was not insignificant, will he have failed to take into account a material consideration. The test is whether the legislation mandated, expressly or by implication, that the consideration be taken into account or whether it was so “obviously material” that a failure to take it into account was irrational.

With regards to omissions (b) and (c), it was clear that the quantification of the effect of individual policies was obviously a material consideration on which information had to be provided to the minister in order that he could discharge his section 13 functions and make a rational decision. There was no dispute that these matters were not addressed in the briefing. Regarding omission (a), the court accepted that it was a matter of judgment as to how much detail should be included in the ministerial submission regarding the assessment of time scales.

Therefore, the court upheld the challenge in relation to omissions (b) and (c) only.

Ground 2

The court held that the Defendant was required to provide greater detail in its report to Parliament than merely publishing “the proposals and policies” suggested without any further information. This turned on the meaning of section 14 and what the phrase a “report setting out proposal and policies” meant. It was clear from the statutory context and the explanatory notes to the 2008 Act that this included explanation about how the government intended to meet its obligations under the Act. Moreover, although the legislation did not require detailed workings or modelling to be provided to Parliament, a quantitative analysis would be necessary for these purposes.

The court was conscious of the need to respect the constitutional separation of functions in a situation where the Executive provides a report to Parliament. Parliament is well able to call for more information to be provided where it wishes to do so. Therefore, the court should tread carefully in this area. However, it remains the role of the court to interpret the legislation and resolve legitimate disputes on the scope of the obligations that legislation imposes.

The NZS did not go below national and sector levels to look at the contributions to emissions reductions made by individual policies (or by interacting policies) where assessed as being quantifiable, which it ought to have done in order to comply with the language and statutory purposes of s.14. However, on the facts, the NZS did address the issue of time scales.

Consequently, the court again upheld the challenge in part.

Ground 3

The Claimants argument proceeded along the lines that the UK has obligations under Articles 2, 8, and A1P1 of the European Convention on Human Rights to take effective action against climate change because this represents a real and “imminent threat” to “life, quality of life and to property”. Therefore, the effect of section 3(1) of the HRA is to require sections 13 and 14 to be interpreted as the Claimants contend: Parliament should be assumed to have intended those provisions to be conducive to more, rather than less, rights protection. The Claimants made this argument despite not being aware of any authority in which a court has stated that this is a permissible application of section 3(1) of the HRA.

The court rejected this argument as not according with established principle. Section 3(1) only applies if the ordinary interpretation of a provision is incompatible with a Convention Right. This is not the same as saying that section 3 allowed courts to adopt interpretations that would ensure greater rights protection when an issue of incompatibility does not arise. In any case, the Claimants’ submission would go beyond the permissible incremental development of clear and constant Strasbourg case law.

Comment

This judgment is notable as it demonstrates that courts are not afraid to conduct a detailed review of the actions of the Government in fulfilling their obligations under climate change legislation. Interestingly, Mr Justice Holgate started his judgment by emphasising that climate change is a global problem. The Claimants succeeded in two significant respects: the court held that the information provided to the relevant minister and the report laid before Parliament were both legally inadequate.

It is important to note, however, that the court was at pains to emphasise that the challenge was still directed at the legal sufficiency of the Secretary of State’s actions and a rationality challenge must not be used as a cloak for a challenge the merits or demerits of policies. The primary mechanism of accountability of the Executive is Parliament, but this does not prevent the courts from intervening in circumstances where the Government acts unlawfully, even on issues of policy.

The judgment can be contrasted with that of R (on the application of Friends of the Earth Limited) v Secretary of State for International Trade/Export Credits Guarantee Department [2022] EWHC 568 (Admin), where the court refused to quash a decision to provide export finance in support of a natural gas project (see our blog post on this case here). There the Claimants unsuccessfully sought to use international legal instruments to challenge the decision on climate change grounds. Read alongside each other, these two cases confirm that while “high-level” and “aspirational” international instruments may not create specific duties in national law, domestic legislation read in its proper context may well do so and is a much stronger basis for holding the Government to account in terms of its actions on climate change.

Andrew Lidbetter
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Nusrat Zar
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Jasveer Randhawa
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Constitutional All Change? The Judicial Review and Courts Act, the Brexit Freedoms Bill and a new Bill of Rights

Recent weeks have seen a number of notable developments concerning new or proposed legislation which could have a wide-ranging impact on aspects of public and administrative law. In particular:

  • The Judicial Review and Courts Act 2022 has recently received Royal Assent and introduces, amongst other things, changes to remedies in judicial review.
  • The Queen’s Speech, delivered on 11 May 2022, revealed the Government’s legislative agenda for the Parliamentary year ahead, including the introduction of a Bill of Rights and a Brexit Freedoms Bill which could impact claims based on human rights and retained EU law respectively, going forward.

The Judicial Review and Courts Act 2022 (the “JRCA“)

On 28 April 2022, the JRCA received Royal Assent (though the relevant provisions discussed below have not yet come into force). The JRCA will introduce a number of changes to judicial review, which we detail further below. You can also listen to our views on the draft bill here.

(i) Quashing orders

Section 1 of the JRCA amends the Senior Courts Act 1981 to provide for two new types of quashing order, which can be made with or without conditions:

  • A suspended quashing order (“SQO“) which may provide that quashing does not take effect until a date specified in the order. The impugned decision or act will be valid until that date. The purpose of having a period of suspension would be to retain some certainty in a period where the original decision is valid, whilst allowing the public body time to re-evaluate its decision before the date of suspension.
  • A prospective quashing order (“PQO“) which may remove or limit any retrospective effect of the quashing. The effect of a PQO would be that only future acts or decisions would be affected.

In deciding whether to make an SQO or PQO, the court must take into account factors such as:

  • The nature and circumstances of the relevant defect;
  • Any resulting detriment to good administration;
  • The interests or expectations of persons who would benefit from the quashing;
  • The interests or expectations of persons who have relied on the impugned act; and
  • Any other matter that appears relevant to the court.

Notably, the Government accepted the House of Lords’ proposal to remove the presumption that either an SQO or PQO should be granted where this offered adequate redress, unless there was a good reason not to do so. We welcome this amendment as it gives the courts greater discretion as to the use of these new remedies.

(ii) Exclusion of review of an Upper Tribunal decision to refuse permission to appeal a First-tier Tribunal decision.

Section 2 of the JRCA 2022 amends the Tribunals, Courts and Enforcement Act 2007 by providing that where the Upper Tribunal refuses permission to appeal a decision of the First-tier Tribunal, that decision is described as “final and not liable to be questioned or set aside in any other court” (subject to certain limited exceptions). This is a legislative attempt to ensure that such a decision should not be amenable to judicial review. The purpose of this was to partially reverse the decision in R (Cart) v Upper Tribunal [2011] UKSC 28.

The Queen’s Speech

The Queen’s Speech, along with its accompanying Background Briefing Notes, provided some detail on legislative developments which may have an effect on the nature and/or scope of public law claims going forward.

(i) A new Bill of Rights

The Government announced its intention to introduce a Bill of Rights which is likely to impact the approach to human rights claims in the UK going forward. This announcement is a further step pursuant to the Government’s intention to “restore the balance of power between the legislature and the courts” through the proposed Bill of Rights.

According the Background Briefing Notes, the main elements of the Bill are:

  • Establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.
  • Ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose ‘positive obligations’ on our public services without proper democratic oversight by restricting the scope for judicial legislation.
  • Guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant.
  • Recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award.”

As outlined in our previous blog post here, this development was foreshadowed in the Government’s consultation to overhaul the existing human rights regime in the UK by replacing the Human Rights Act 1998 with a new Bill of Rights (the “HRA Consultation“). HSF’s views on the HRA Consultation were discussed here and in March we published HSF’s response to the consultation.

Proposals envisaged in the HRA Consultation included providing guidance to the courts on how to apply the principle of proportionality and requiring a ‘permission stage’ for human rights claims in order to ‘weed out frivolous or unmeritorious claims’. However, the extent to which the specific proposals in the HRA Consultation will be carried forward in the draft wording of the Bill of Rights remains to be seen. It is therefore unclear what precise impact any new Bill of Rights will have on the scope of and approach to human rights claims, but it is possible that the impact could be significant.

(ii) The Brexit Freedoms Bill

Following the UK’s departure from the EU, the Government has also announced an intention to introduce a Brexit Freedoms Bill. This has the potential to enable further divergence from EU law going forward. The stated purpose of the Bill is to “end the supremacy of European law and seize the benefits of Brexit“. The main elements of the Bill are stated to be:

  • Creating new powers to strengthen the ability to amend, repeal or replace the large amounts of retained EU law by reducing the need to always use primary legislation to do so.
  • Removing the supremacy of retained EU law as it still applies in the UK.
  • Clarifying the status of retained EU law in UK domestic law to reflect the fact that much of it became law without going through full democratic scrutiny in the UK Parliament.”

The focus on the Bill therefore appears to be on EU retained law (i.e. some EU law measures which were effectively transferred into domestic law and ‘retained’ as UK law following the end of the Brexit transition period). This approach was taken in relation to a significant volume of EU legislation and according to the Queen’s Speech briefing paper, “the Government’s review of retained EU law has, to date, identified over 1,400 pieces of EU-derived law that have been transferred into UK law.”

The proposals for the Brexit Freedoms Bill could have an impact on public law claims founded upon EU retained law going forward. For example, currently, a piece of retained EU law in our domestic legislation may be similar (if not the same) in substance to the original EU law measure on which it was based. This means that post-Brexit, any claim based on that piece of retained EU law may be similar in substance to a claim that would have been based on the original EU law measure before Brexit. However, the Brexit Freedoms Bill appears to envisage facilitating amendments / replacements of retained EU law. This could create potential for greater (and possibly more accelerated) divergence of our domestic law from EU law measures.

Conclusion

Each of the developments discussed above has the potential for far-reaching implications. Taken together they give a strong indication of the Government’s wish for Parliament and the Executive to “take back control”, whether that be by moving away from EU law or the influence of the European Court of Human Rights, or encouraging the courts in judicial review cases to consider allowing unlawful acts to remain valid at least for some period of time.  It is also interesting to see a further attempt to use an ouster clause. It remains to be seen how the courts will interpret and apply these new provisions once they are included in legislation and come into force.

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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Court finds Government’s Covid policy in care homes unlawful

In R (Gardner and Harris) v Secretary of State for Health and Social Care and others [2022] EWHC 967 (Admin) the Divisional Court has found that arrangements by the Department of Health for discharging patients from hospitals to care homes during the pandemic were unlawful.

Key points

  • Article 2 of the European Convention on Human Rights (ECHR) (the right to life) contains both a ‘systems duty’ and an ‘operational duty’. The systems duty requires the state to put in place a legislative and administrative framework designed to protect against risks to life, whilst the operational duty requires the state to take practical steps to safeguard people’s right to life from specific dangers where there is a link to the state’s responsibility.
  • A real and immediate risk to life is a necessary but not sufficient factor for the existence of an Article 2 operational duty. The duty may exist even in the absence of an assumption by the state of responsibility, where it has become aware of dangerous situations involving a specific threat to life. In appropriate circumstances the operational duty may also arise where the state engages in activities which it knows or should know pose a real and immediate risk to the life of a vulnerable individual or group of individuals.
  • The implementation of protective measures in relation to care homes during the pandemic did not trigger state responsibility under Article 2 or Article 8 (the right to respect for private and family life) of the ECHR.
  • In considering whether the decisions made and the policies promulgated by a public body are unlawful by the standards of public law, the Court has to consider the facts as they were presented at the time to the decision makers. The Court must ask whether the decisions taken fell outside the range of reasonable decisions properly open to the Government in the light of the knowledge then available and the circumstances then existing.

Background

The daughters of two care home residents who, along with 20,000 others, died of COVID-19 in a care home in England in April and May 2020 (the Claimants) brought a claim for judicial review against the Secretary of State for Health and Social Care (SoS), NHS England (NHSE) and Public Health England (PHE) (the Defendants) in relation to four policies issued between 13 March and 15 April 2020.

Judicial review was sought on three grounds:

  • Breaches of the Claimants’ fathers’ rights under Article 2 and Article 8 of the ECHR (the ECHR claims).
  • Unlawfulness, on the basis of failure to take into account relevant considerations, failure to conduct a sufficient enquiry, taking into account irrelevant considerations, irrationality and breach of the duty of transparency (the public law claims).
  • Breaches of the public sector equality duty under section 149 of the Equality Act 2010, which imposes an obligation to have regard to the need to advance equality of opportunities and to eliminate discrimination (the PSED claim).

The four policies under challenge included the March Discharge Policy, which comprised two policies dated 17 and 19 March 2020 relating to arrangements for discharging patients from hospitals to care homes without testing and isolation, and the April Admissions Guidance dated 2 April 2020, which advised that symptomatic or asymptomatic COVID-19 patients could be safely cared for in a care home.

Judgment

Unanimous judgment was given by two judges (Bean LJ and Garnham J) sitting as a Divisional Court.

ECHR claims

The Claimants submitted that the Defendants had a positive obligation to take appropriate steps to safeguard the lives of those within England and do all that could have been required to prevent life from being avoidably put at risk. They alleged that both the ‘systems duty’ and ‘operational duty’ applied and were breached by the Defendants during the first wave of the pandemic. The systems duty required the Defendants to put in place a legislative and administrative framework designed to protect against risks to life, whilst the operational duty required the state to take practical steps to safeguard people’s right to life from specific dangers in circumstances where there was a link to the state’s responsibility.

The Court rejected the ECHR claims in their entirety. In relation to the systems duty, the Court dispensed with the Claimants’ arguments that the Defendants breached their duty to put in place a legislative and administrative framework; on the contrary, the complaint concerned the contents of the policies implemented.

In relation to the operational duty, the Court concluded that any acceptance of the argument that protective measures relating to private sector care homes involved a sufficient connection or link with the state would significantly widen the scope of the Article 2 operational duty owed to potentially very large numbers of elderly people. Strasbourg authority did not support the extension of the duty to “as broad and undefined a sector of the population as residents of care homes for the elderly” and the Court doubted that the European Court of Human Rights would be willing to declare such a duty.

Public law claims

The Court held that the decision to issue the March Discharge Policy and the April Admissions Guidance was irrational in that the Policy and the Guidance failed to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should so far as practicable be kept apart from other residents for 14 days.

The public law claims against NHSE were dismissed on the basis that it was not responsible for making such arrangements.

Public sector equality duty

The PSED claim was dismissed on the basis that in the “highly pressured” circumstances of March and April 2020, the Government could not be reasonably criticised for failing to carry out an equalities impact assessment of its policies relating to care homes, nor did the PSED add anything to the Defendants’ duties under common law.

Comment

The Court’s judgment is a noteworthy development in the growing body of litigation regarding Government decision making during the pandemic. In considering the claim the Divisional Court recognised that the Defendants had to make judgments in circumstances of enormous pressure, in respect of a novel disease against a background of uncertain and rapidly developing scientific knowledge. The case however turned on a clear-cut failure to take into account highly relevant considerations regarding the risks of non-symptomatic transmission of COVID-19, which by mid-March 2020 had been acknowledged by the Government in Parliament and in the media.

A further point of interest is the Court’s approach to deficiencies in the witness evidence presented by the SoS, with the Court declining to resolve disputes of fact in favour of the Defendants. It held that “where there is no record at all of an important issue being raised with the Secretary of State nor of his response we cannot simply assume that everything relevant was taken into consideration“. Even in the exceptional circumstances of a pandemic, maintaining a thorough paper trail of decision-making remains critical for the purposes of defending a judicial review.

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

Decision makers have significant discretion in climate change issues

In R (on the application of Friends of the Earth Limited) v Secretary of State for International Trade/Export Credits Guarantee Department [2022] EWHC 568 (Admin), the court refused to quash a decision to provide export finance in support of a natural gas project in Mozambique.

Key points

  • The nature and scope of the enquiry that a decision-maker is required to undertake depends on the nature of the decision which is to be made. For complex political decisions, the decision-maker should be afforded a wide margin of appreciation.
  • Courts should be wary of reaching “hard-edged” interpretations of international treaties. It is sufficient in most cases that the decision-maker’s interpretation of the treaty was “tenable”.
  • Where the language of a treaty is high-level and aspirational, this supports a less strict approach to interpretation.

Background

Friends of the Earth (“FoE“) sought judicial review of the decision of the first defendant, the Secretary of State, to provide export finance in support of a natural gas project (the “Project“) in Mozambique. The decision was initiated by United Kingdom Export Finance (“UKEF“), in exercise of delegated powers. UKEF aims to ensure that no viable UK export fails for lack of finance and broadly operates like a financial institution in support of UK exports and investments.

FoE sought to quash the decision on two bases. Firstly, FoE contended that the decision was based on an error of law or fact, namely that funding the Project was compatible with the United Kingdom’s commitments under the Paris Climate Change Agreement (the “Paris Agreement“) and/or assisted Mozambique to achieve its commitments under the Paris Agreement (Ground 1(a)). Secondly, the UKEF’s decision was unlawful in that it was reached without regard to relevant considerations in reaching the view that funding the Project aligned with the UK and Mozambique’s obligations under the Paris Agreement (Ground 1(b)).

Judgment

The case was heard by two judges sitting as a Divisional Court. Both judges emphasised that they were not concerned with the merits of the decision.

Stuart-Smith LJ gave the leading judgment and recognised the duty emerging from Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665, which requires public bodies to undertake a sufficient inquiry prior to making a decision. However, the question of what should be taken into account and what enquiries should be made is a matter for the decision maker and is highly context specific. The intensity of review and the scope of any margin of appreciation varies depending on whether the decision involves political calculations: R (Spurrier) v Transport Secretary [2019] EWHC 1070 (Admin), [141] ff.

On the facts, he noted that UKEF’s decision depended partly on an assessment of climate change effects of a long-term project. This was a complex, policy-laden, and necessarily predictive exercise. It was also relevant that there was no established or internationally recognised methodology for such an exercise. Whether FoE were challenging the rationality of the decision itself or whether the decision should have been made at all (given UKEF’s lack of expertise on climate change), UKEF should be afforded a wide margin of appreciation.

Turning to the Paris Agreement, there was no rule that the court should never determine a question of interpretation in relation to unincorporated international treaties. However, in cases involving broad political or aspirational statements of principle, courts should not attempt to reach “hard-edged” interpretations on provisions. Rather they should restrict themselves to applying a test of “tenability”. This was not a case where the court were bound to provide a strict interpretation of the treaty. Given the high-level and aspirational language of the Paris Agreement, Stuart-Smith LJ considered that an overly strict interpretative approach would in fact be inappropriate.

The thrust of the claimant’s arguments on both Grounds 1(a) and (1b) was that the Defendant failed to have proper regard to the climate impacts of the Project. However, the decision would have no impact on climate change impacts because the development would go ahead in any case. The decision was not “about” emissions. The scope of the Tameside duty is consequently framed by the fact that the decision concerned only whether to provide finance. This involved consideration of multifarious economic, political, and scientific factors. Since a high degree of policy judgment was involved, it was appropriate for the decision-maker to adopt a less rigorously technical approach to climate change analysis than if that had been the only material factor.

On the facts, even though the UKEF did not undertake a full-blown environmental assessment, climate change impacts and considerations of the Paris Agreement were accepted as relevant considerations alongside other factors and they took steps to inform themselves about impacts by sourcing assistance from outside bodies. On the analysis that they had undertaken, it was already clear that emissions resulting from the Project would be significant. UKEF, in the exercise of its judgment, decided to proceed anyway. According to Stuart-Smith LJ, it was therefore difficult to see how more rigorous analysis would have had an impact on the outcome of the decision.

Moreover, regarding ground 1(b), the language of the Paris Agreement was too opaque and high-level to generate hard-edged legal obligations. For example, the claimants contended that the phrase “a pathway towards low greenhouse gas emissions” required states to keep the global increase in temperature below 1.5 degrees Celsius. Given that the world is so far off this target, this was said to be an unrealistic interpretation. Instead the Paris Agreement should be approached as a composite package of aims and aspirations. On that basis the UKEF’s interpretation of their obligations under the Paris Agreement was in fact tenable: it was based on the judgement that the Project would foster climate resilience in Mozambique and increase Mozambique’s ability to adapt to adverse impacts of climate change.

Dissenting judgment

Thornton J disagreed, concluding that UKEF had filed to discharge its duty of inquiry because there was not a sufficiently detailed review of emissions. This, combined with other flaws in the climate assessment, led her to conclude that there was no rational basis on which to demonstrate that the funding for the Project was consistent with the Paris Agreement. UKEF had concluded that climate risk was a material consideration. However the analysis that was then carried out was incomplete. Whilst she accepted that it would have been a complex predictive exercise, and whilst acknowledging the need to accord considerable respect to UKEF’s decision making, Thornton J considered that emissions should and could have been properly calculated. The flaws in the analysis meant that, in her view, ministers did not have a legally adequate understanding of the scale of the emissions impact from the Project.

Comment

The Divisional Court’s decision demonstrates that a significant margin of appreciation will be given to public bodies where the decision that they have to undertake is complex and multifaceted, and particularly where it requires the exercise of political judgment. Moreover, this case is a reminder that it may be difficult for claimants to challenge the decisions of public bodies based on compatibility with international law, especially where that law is contained in language that is expressed at a high level of generality. Despite the greater focus on climate change issues recently the courts remain willing to give decision-makers a degree of leeway in these circumstances. However the fact that the two judges disagreed in this situation is interesting and demonstrates that there may be room for greater scrutiny from the courts on climate change issues going forward.

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High Court considers judicial review of public sector appointments made during the pandemic

In R (Good Law Project and Runnymede Trust) v Prime Minister and Secretary of State for Health & Social Care [2022] EWHC 298 (Admin) the High Court granted a declaration that the Secretary of State for Health and Social Care did not comply with the public sector equality duty (“PSED“) in relation to the decisions to appoint particular individuals to senior public sector positions as part of the government’s response to the Covid-19 pandemic.

Key points

  • Judicial review is ordinarily not the appropriate forum to challenge employment decisions taken by public authorities.
  • When making appointments, public authorities must evidence the actions they have taken to discharge the obligations imposed by the PSED.
  • While there has been a general trend towards liberalisation of the rules on standing, the courts will nevertheless consider the position carefully and dismiss grounds of challenge where there is no “sufficient interest”.

Background

The judicial review claim, brought by not-for-profit campaign organisation The Good Law Project and race equality think tank The Runnymede Trust (the “Claimants“), concerned a series of appointments to leading healthcare positions during the early stages of the Covid-19 pandemic. Specifically, the appointment of Baroness Harding in May 2020 as Chair of NHS Test and Trace (“NHSTT“) and subsequently as Interim Chair of the National Institute for Health Protection in August 2020, and the appointment of Mike Coupe as Director of Testing at NHSTT were all challenged by the Claimants (the “Appointments“).

The Claimants contented that the Appointments were symptomatic of a government policy of recruitment to critical positions without open competition which had resulted in instances of indirect discrimination.

Judicial review was sought on three grounds:

  1. For indirect discrimination, pursuant to sections 29 and 50 of the Equality Act 2010, on the basis that the government had adopted an unlawful and discriminatory appointment policy (“Ground One“).
  2. For breach of the PSED under section 149 of the Equality Act 2010, which imposes an obligation to have regard to the need to advance equality of opportunities and to eliminate discrimination (“Ground Two“).
  3. For breach of procedural fairness and apparent bias based on the fact that Baroness Harding was involved in the final stages of the appointment of Mike Coupe, despite there being a historic working relationship between the two appointees (“Ground Three“).

The Defendants opposed all three grounds on their merits and for a number of procedural reasons, including on the basis that the Claimants lacked standing to bring the claims. The Defendants also argued that the decisions challenged were not amenable to judicial review.

Standing and amenability

The judgment contains a detailed summary of the law of standing and its application to NGOs. The key question, which is set out in section 31(3) of the Senior Courts Act 1981, is whether the particular claimant has a “sufficient interest in the matter to which the application relates“. Where a number of different grounds of challenge are being advanced, it is possible that particular claimants could have standing for some grounds but not others.

The judgment also contains an examination of how the principle of amenability – which is whether a decision is a public law decision which can be challenged by way of judicial review – applies in an employment context.

Ground One

The Court held that neither of the Claimants had standing to pursue the indirect discrimination claims. The Court’s conclusion on this point was closely bound up with its consideration of amenability. In particular, the Court emphasised that “The Employment Tribunal – where the relevant cause of action more appropriately exists – is far better suited than the Administrative Court to adjudicate on disputes of fact likely to be material to the outcome of any discrimination claim“. Such claims in the Employment Tribunal could not be advanced by the Claimants but could have been brought by specific individuals, namely the other candidates considered for the Appointments. Notwithstanding that no such individual complainants had come forward, the Claimants did not have standing to bring this ground of challenge.

Ground Two

In relation to the alleged breach of the PSED, the Court confirmed that judicial review is the appropriate forum to bring such a claim. While the Court concluded that the Runnymede Trust, as an organisation promoting racial equality, had standing to do so, it found that The Good Law Project did not have standing due to the organisation’s broad remit. Emphasising that “No individual, even one with a sincere interest in public law issues, would be regarded as having standing in all cases“, the Court found that “it cannot be supposed that the GLP now has carte blanche to bring any claim for judicial review no matter what the issues“.

Ground Three

The Court reiterated that the Employment Tribunal remains the appropriate place for this type of claim and that, consequently, Ground Three was not amenable to judicial review and that neither of the Claimants had standing.

The merits

Ultimately the only ground which the Court permitted to proceed concerned compliance with the PSED.

Emphasising that the PSED is “a duty of process, not of outcome“, the Court held that no evidence had been provided by the Defendants to confirm what actions were undertaken to comply with this duty, finding that the evidence presented “goes no further than generalities“. Ground Two therefore succeeded in respect of the decisions to appoint Baroness Harding as Interim Chair of NHSTT and Mike Coupe as Director of Testing and the Court granted a declaration accordingly.

While there was no formal need for the Court to consider the merits of the other grounds, the judgment does contain a useful discussion of apparent bias. In addition to finding that the claim failed on the facts (as the fair minded observer would not conclude that there was a real possibility of bias), the Court emphasised that “the principles of apparent bias have no application to employment recruitment exercises“.

Comment

The Court’s judgment is notable when set against the backdrop of the various, recent challenges that have been made to the government’s activities during the Covid-19 pandemic. Many of these challenges have been widely publicised and several have involved NGOs with no private interest in the relevant decisions.

A key point of interest here is standing. Whilst acknowledging that, since the House of Lords decision in R v Inland Revenue Commissioners, ex p. National Federation of Self-Employed and Small Business Ltd [1982] AC 617, there has been an increased “”liberalisation” of the test for standing“, it is notable that the Court denied The Good Law Project standing on all grounds, having not been persuaded that the broad remit in the organisation’s objects was determinative. It remains to be seen whether this decision will reflect a trend towards tightening the law on standing.

Additionally, the dismissal of Grounds One and Three illustrates the difficulties faced by claimants when seeking to persuade the Court that claims for judicial review in the employment context should progress, given the position of the Employment Tribunal as the specialised forum to hear such claims.

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High Court clarifies scope of challenges to consultations on primary legislation

The High Court has clarified that complaints of unfair consultation relating to the introduction of primary legislation cannot found a ground of challenge by way of judicial review (R (on the application of A) v Secretary of State for the Home Department [2022] EWHC 360).

Key points

  • The principles on which the law of Parliamentary privilege is based involve “the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts” and the principle of separation of powers.
  • The Court would offend the constitutional principles of Parliamentary privilege and separation of powers if it concerned itself with complaints regarding a consultation and engagement process relating to the introduction of primary legislation.
  • The statutory duty under the Equalities Act 2010 not to indirectly discriminate and the public sector equality duty under the 2010 Act are not applicable to the “function” of making a substantive decision as to the design of a Bill of primary legislation to be placed before Parliament.

Background

In March 2021 the Secretary of State for the Home Department (the “Defendant“) presented to Parliament a policy statement entitled “New Plan for Immigration”. The Defendant stated in the policy statement that a comprehensive consultation and engagement process would commence on 24 March 2021. The subsequent consultation and engagement process lasted for six weeks. On 6 July 2021, the Nationality and Borders Bill was introduced in the House of Commons.

On 28 May 2021, the Claimants (a group of asylum seekers from El Salvador, Sudan, Yemen and Eritrea) filed a claim for judicial review which contained three grounds of challenge:

Ground One – The consultation on the New Plan for Immigration was indirectly discriminatory pursuant to sections 19 and 29(6) of the Equality Act 2010 (the “EA“) as the consultation documents were published only in English and Welsh.

Ground Two – The consultation was in breach of the public sector equality duty pursuant to section 149 of the EA (“PSED”) as certain engagement sessions were invitation-only and did not allow wider participation.

Ground Three – The consultation was in breach of common law requirements for lawful consultation, in particular the Gunning principles derived from R v Brent London Borough Council, ex p Gunning (1985) 84 LGR 168.

Permission for judicial review was refused on the papers, and the Claimants renewed their application for permission at an oral hearing.

Judgment

The Court (Fordham J) dismissed the renewed application for permission on all grounds.

The Court considered first whether the claim was justiciable. This involved consideration of  whether the Court’s supervisory jurisdiction on judicial review extends to the Court ‘policing’ the Gunning principles in the context of a consultation which was concerned with “delivering effective legislative change” and whose culminating substantive decision entailed the design of a Bill of primary legislation to be introduced into Parliament. The Court concluded that the answer to that question was clearly and beyond reasonable argument “no”.

The Court noted that Article 9 of the 1689 Bill of Rights set the scene for consideration of this topic. Article 9 provides: “That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament”. The Court noted that the principles on which the law of Parliamentary privilege is based involve “the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts”, and that one of the principles on which the law of Parliamentary privilege is based is “the principle of the separation of powers, which in our Constitution …requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature”.

The Court first addressed the third ground of challenge. It noted that it is well established that when a public authority decides to conduct a consultation the Gunning standards are applicable. It is also well established that in principle when a public authority reaches a substantive decision arising out of a decision-making process in which the Gunning standards have been breached, the substantive decision is vitiated. The Court concluded that a declaration that an applicable legal standard was breached in a consultation and engagement process culminating in the operative decisions as to the design of a Bill to introduce into Parliament would constitute a breach of Parliamentary privilege and the constitutional separation of powers.

On this basis it held that the Gunning standards are not applicable to a decision about the design of the consultation and engagement process which led to the introduction of the Nationality and Borders Bill.

In respect of the first two grounds, the Court held that both the EA duties invoked by the Claimants were inapplicable to the function of designing the consultation and engagement process which led to the introduction of the Bill. This was on the basis that it would be a breach of Parliamentary privilege and the constitutional separation of powers for a Court to hold that the procedure that led to legislation being enacted was unlawful. This resulted in the actions by a Government body leading up to the making of primary legislation (including decisions as to the design of the consultation and engagement process) not being within the “functions” of a public authority to which the PSED applies.

The Court went on to conclude that even if it had found the matters to be justiciable, it would have refused permission for judicial review on lack of arguability of all three grounds.

Comment

The High Court’s decision reaffirms the importance of the concepts of Parliamentary privilege and the constitutional separation of powers when considering the scope of the Court’s supervisory jurisdiction.

The Court noted that the approach to the question of justiciability in case law recognises that responsibility for considering standards and accountability in relation to those standards is a responsibility of Parliament. The Court does not have a role of identifying legal standards and enforcing them (albeit they would be identified and enforced in the context of decision-making culminating in delegated legislation) so as to identify procedural impropriety in the lead up to primary legislation, for the purpose of informing Parliament or members of Parliament or informing public debate. That would be an act of interference which the Court’s “chosen, self-denying ordinance” based on the constitutional principles of the separation of powers and the rule of law inhibits it from undertaking.

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HSF responds to the Government’s consultation on human rights reform

The main window for response to the Government’s consultation paper on the reform of the Human Rights Act 1998 (“HRA“) has now closed. The consultation paper proposed an overhaul of the existing human rights regime in the UK by replacing the HRA with a new Bill of Rights. The proposals involved giving greater legislative guidance to courts on key human rights issues, tweaking some of the existing legislation, and cultivating a distinctly British angle to domestic human rights law. A summary of the proposals can be read here.

In this blog post, we summarise some of the key aspects of our response to the consultation paper. In general, we think the system works well as it currently stands. We are concerned that changes may result in misalignment with the jurisprudence from the European Court of Human Rights (“ECtHR“). Such misalignment is likely to cause more cases to seek redress directly from the ECtHR, defeating the original purpose of the HRA, which was to make rights accessible domestically. We also consider that the courts are best placed to determine human rights law, and therefore we warn against an overly prescriptive legislative regime that may inhibit the courts’ discretion. Please see below for more detail on some of the key issues. You can find our full response here.

  • Reform of section 2 concerning the status of Strasbourg caselaw. We do not consider it necessary to ‘soften’ the wording of section 2 or to explicitly suggest that domestic courts can draw on a wide range of sources when determining human rights issues. We believe that the current arrangements strike the right balance: they indicate that courts should generally align themselves with case law from the ECtHR while allowing for departure in appropriate cases.
  • Reform of section 3 concerning how legislation should be interpreted. We think that any attempt to provide more guidance in legislation that courts should consider the will of Parliament is not likely to have a significant effect. Courts already accept that section 3 cannot be used to ‘go against the grain’ of the legislation. Adjusting section 3 is likely to cause confusion and bring our domestic jurisprudence out of step with that of the ECtHR.
  • Permission stage. Our view is that a permission stage for human rights cases would not be desirable but would simply make the process of bringing a claim more expensive and cumbersome. Additionally, if the proposed ‘significant disadvantage’ test creates a higher threshold than the current ‘victim’ test, there is a risk that meritorious claims will not be heard. It may be that there are cases where the full extent of the harm caused to the claimant does not come fully to light at the permission stage.
  • Reduction of liability for public authorities. We do not support the proposed attempts to reduce the liability of public authorities. Regarding the proposals to limit the extent of public bodies’ positive obligations, although we accept that positive obligations do place a burden on public authorities, we think that in some circumstances they are necessary in order to give proper effect to rights. Equally, we do not think that public bodies should be afforded a greater defence when acting in accordance with the will of Parliament than that already present in section 6(2) of the HRA.
  • Proportionality. Proportionality is an inherently flexible principle that does not lend itself well to codification. Legislative guidance on the principle is likely to lead to uncertainty and unnecessary litigation. Moreover, our view is that any change is unnecessary. Courts already give significant deference to Parliament and the executive on appropriate matters. Legislative guidance on the principle of proportionality is likely to restrict the courts’ ability to apply the principle flexibly.
  • Declarations of incompatibility. We contend that while the declaration of incompatibility mechanism works well in relation to primary legislation, it is not necessary in the context of secondary legislation, because the same democratic concerns do not arise. Secondary legislation is normally passed quickly by ministers without, in practice, Parliamentary scrutiny. We do not think that the declaration of incompatibility mechanism should replace the courts’ existing power, explained in RR (AP) v Secretary of State for Work and Pensions [2019] UKSC 52, to disapply secondary legislation.
  • Remedies. We do not think that any more guidance is needed for courts to determine the quantum of damages in human rights cases. The courts already take into account a wide range of considerations when determining the quantum of damages and are best placed to make fact-specific assessments in each case to achieve an equitable outcome.
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Court of Appeal finds no breach of positive human rights duties

The Court of Appeal has allowed an appeal by the Environment Agency (“EA”) and set aside a declaration made by the High Court which had required the EA to take certain actions in order to comply with positive obligations under Articles 2 (the right to life) and 8 (the right to private life) of the European Convention on Human Rights (“ECHR”), as incorporated into English law by way of the Human Rights Act (“the HRA”).

Key Points

  • The role of the Court under the HRA is to determine whether a public authority is acting unlawfully by acting in a way which is incompatible with a person’s ECHR rights. An act includes a failure to act.
  • If it is to be found that a public authority is acting, or is proposing to act, unlawfully, there must be a proper evidential basis for that finding. The Court’s role is to adjudicate on whether a claim as brought is made out, and, if so what remedy is appropriate
  • Courts must take the greatest care not to exceed their function, especially in cases relating to the regulation of dangerous industrial activities where the subject matter is complex and technical.
  • It is not the Courts’ role to dictate precise measures which should be adopted by public authorities in order to comply with their positive duties under the ECHR.

Background

The Claimant, a young child, suffered from severe respiratory problems.  His life expectancy was at risk of being significantly reduced because of exposure to hydrogen sulphide emissions from a landfill site near to where he lived which operates under a permit from the EA. The EA recognised and accepted that there was an issue with the emissions and steps had been and continue to be taken to rectify this.

The High Court in August 2021 held that positive operational duties upon the EA were triggered under Articles 2 and Article 8 of the ECHR. Whilst those Articles had been triggered, the High Court declined to find that there had been a breach of either Article. Nonetheless, it granted a declaration that the EA was required to implement the advice of Public Health England (“PHE”) as to the specific levels and target dates for reduced emissions in order to comply with its legal obligations under the ECHR. See our commentary on the judgment.

The EA appealed to the Court of Appeal. It contended that:

1)     The Court erred in concluding that the declaration was justified and appropriate. It should have been for the EA as the statutorily appointed and expert regulator to determine what further actions were required to reduce the levels of hydrogen sulphide to acceptable levels, taking into account the PHE guidance (the “First Ground”).

2)     The Court erred in granting a declaration in circumstances where there was no finding of any past or current breach of the EA’s obligations, as without a breach there was no proper basis on which to grant a declaration (the “Second Ground”).

In a cross appeal the Claimant contended that: (1) the Judge had found that the EA was in breach of its obligations under the ECHR and therefore was right to grant the declaration, or (2) alternatively, if the Judge had not found that there was a breach of the ECHR, he was wrong in failing to find a breach.

Judgment

The Court of Appeal granted the EA’s appeal on both grounds.

First Ground

The Court of Appeal explained that the Court’s role under the HRA is to determine whether a public authority is acting unlawfully in contravention of an individual’s ECHR rights, and to then determine the appropriate remedy. In this case its role was to determine whether the EA had acted unlawfully by acting incompatibly with the Claimant’s rights under Articles 2 and 8 of the ECHR. However, the Judge at first instance instead “sought to define the legal content of the obligation” by electing the advice given by PHE to a legally binding standard and prescribing the actions and timeframes for reducing emissions that the EA was legally required to comply with. In doing so, he had exceeded the scope of the Court’s function under the HRA as it was not the Court’s role to prescribe such standards.

The Court of Appeal held that the Judge had acted contrary to principles established in the European Court of Human Rights in Budayeva v Russia (2014) 59 EHRR 2 (“Budayeva”) and Fadeyeva v Russia (55723/00) (2007) 45 EHRR 10 (“Fadeyeva”) on the appropriateness of judicial intervention in the regulation of dangerous industrial activities. In Fadeyeva it was held that it is not the Court’s task to determine what exactly must be done or what precise measures must be taken to reduce pollution. Similarly, in Budayeva the Court held that the choice of means of rectifying the unlawfulness was for the state to decide. On this basis the declaration granted by the Judge was set aside.

Second Ground

The Court of Appeal noted that declarations are commonly used as a remedy in judicial review cases where a public authority is acting, or proposing to act, unlawfully. In exceptional cases, an advisory declaration may be granted to clarify the law on a certain issue. Section 8 of the HRA states that “in relation to any act (or proposed act)” that is deemed unlawful, the Court can grant just and appropriate relief. Therefore, there should be an unlawful act or proposed act for declaratory relief to be granted.

It was held that on a fair reading of the High Court judgment, the Judge did not find that the EA had breached any of its obligations under Articles 2 or 8 of the ECHR at the date of the hearing, nor was there basis to say it was proposing to act unlawfully. In fact, the Judge had expressly declined to make such a finding. Moreover, an advisory declaration to clarify a point of law was not sought by the Claimant and in any case would not have been appropriate given the issue involved deciding what action to take in a complex regulatory and technical sphere. Therefore, the declaration granted was neither justified nor required to remedy any unlawful act or failure to act as one did not exist.

Cross Appeal

The Court of Appeal found that there was no proper basis upon which a Court could find that Articles 2 and 8 had been breached, or that the EA proposed to act in breach of its obligations under those Articles. The cross-appeal was therefore dismissed.

Comment

The Court of Appeal’s judgment affirms that the Court’s role in claims alleging breaches of the HRA is to adjudicate on whether the public authority is acting unlawfully by acting, or failing to act, in a way that is incompatible with a person’s ECHR rights. To go further and define the legal content of the positive obligation wrongfully exceeds the Court’s role, and the Court of Appeal has emphasised that the Courts must take great care not to do so.

 

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ADMINISTRATIVE COURT DEFERS TO THE EXPERT VIEW OF REGULATOR

In R (on the application of Cox) v Oil and Gas Authority [2022] EWHC 75 (Admin) the High Court has dismissed a judicial review challenge to a decision of the Oil and Gas Authority (“OGA“), in doing so emphasising that it will afford considerable deference to a regulator’s expert view and that there may not be a “single right answer” to questions of statutory construction.

Key points

Background

Section 9A of the Petroleum Act 1998 (as amended) sets out a “principle objective” for the OGA of “maximising the economic recovery of UK petroleum” (“MER“). The Act also requires the publication of a strategy which must be reviewed periodically, with which the OGA must act in accordance. In addition, the Energy Act 2016 requires the OGA to “have regard” to a number of matters when exercising its functions, including how facilities for storing carbon dioxide may assist the Secretary of State to meet the Net Zero Target (set out in section 1 of the Climate Change Act 2008).

The OGA’s current strategy came into force in February 2021 (the “Strategy“). The Strategy included a “central obligation” which provided that, in meeting the principal objective of MER, relevant persons must take appropriate steps to assist the Secretary of State in meeting the Net Zero Target. The Strategy also gave a definition of “economically recoverable” which included “resources which could be recovered at an expected (pre-tax) market value greater than the expected (pre-tax) resource cost of their extraction“.

The three individual Claimants in this case, who were environmental campaigners, brought a claim for judicial review against the OGA and the Secretary of State for Business, Energy and Industrial Strategy in relation to the decision to adopt the Strategy.

Grounds of challenge

The Claimants were granted permission to pursue two grounds of challenge.

Ground One

The Claimants submitted that the Strategy’s definition of “economically recoverable” frustrated the statutory purpose of section 9A and in particular that the OGA had erred by adopting an objective of maximising the economic recovery of UK petroleum on a pre-tax basis. The essence of the Claimants’ case was that, by ignoring the effect of government-backed financial support, the Strategy had stretched the definition of “economically recoverable” too wide, such that activities that were not truly “economic” for the UK as a whole were nonetheless still sought to be maximised through the Strategy. This was because in some years there had been negative tax flows (such that taxpayers were recipients, not payers).

The Claimants also argued that the meaning of the statutory provision was a question for the Court, that there could not be more than one permissible interpretation of it, and the OGA had erred in law by adopting the construction that it had.

Ground Two

The Claimants claimed that the definition of “economically recoverable” which the OGA had adopted was irrational as it would have the effect of increasing the amount of petroleum which would be sought and recovered, such that the Strategy would be inconsistent with the Net Zero Target (to which the Energy Act 2016 required the OGA to have regard).

Decision of the Administrative Court

Mrs Justice Cockerill dismissed both grounds of challenge.

As to Ground One, Cockerill J summarised the primary question for the Court as being whether it is for the Court to determine the correct construction of MER or whether that is for the OGA to determine, subject only to a “Wednesbury” unreasonableness test (ie a decision so unreasonable that no reasonable public body could come to that decision).

Ultimately, Cockerill J held that, while she did not necessarily accept the Defendants’ submission that it was always improper in a judicial review for a Court to substitute itself for the regulator on complex issues of economic assessment, the Court will afford considerable deference to the regulator’s expert view. In this particular case, Parliament had not intended the Court, rather than the expert regulator, to determine the best method of economic assessment.

Even if it had been for the Court to determine the correct construction, Cockerill J considered that the OGA had reached the right result. In arriving at this conclusion, Cockerill J considered that the Claimants’ case was “considerably hampered” by their failure to put forward a positive case as to construction, which made it harder to test the “wrong” approach. Cockerill J was also influenced by conducting a “sense check” of the Claimants’ concerns, which she found led to a “strained and nonsensical approach“.

As to Ground Two, Cockerill J explained that the starting point for the Claimants was that they needed to meet the high threshold of irrationality. They also needed to show that, while the pre-tax method is not legally an incorrect construction to have arrived at (on the basis that Ground One had been dismissed), it was nevertheless irrational to reach that conclusion. On the facts of this case, the threshold for irrationality had not been reached. The Claimants could also not show a breach of the “have regard” duty under the Energy Act 2016, which the Court emphasised was a “process duty“. Balancing the various matters to which the regulator must have regard was a matter for the OGA, not the Court.

Comment

This decision illustrates that the Court’s approach to statutory construction will vary according to the context. While in some cases there might be a “right” approach, in others (and particularly where an expert regulator is concerned) the Courts might show significant deference. It is therefore important that those construing statutory provisions (whether public bodies considering their own powers or those considering bringing challenges) consider the context carefully to assess the Court’s likely approach.

The judgment in this case also demonstrates that it is often important (and of significant persuasive value) for parties to put forward positively what they consider the “right” approach to the construction of a particular point. A Court may also be influenced by consideration of whether the practical effects of a particular construction are sensible.

Finally, the decision shows the difficulty in succeeding on an irrationality challenge where another more “hard edged” challenge based on legality has failed. For this reason, before including an irrationality ground, parties ought to consider carefully whether that is really likely to add anything to a legality challenge.

 

Andrew Lidbetter
Andrew Lidbetter
Partner
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Nusrat Zar
Nusrat Zar
Partner
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Jasveer Randhawa
Jasveer Randhawa
Of Counsel
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James Wood
James Wood
Senior Associate
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