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

The long-awaited Procurement Bill goes before Parliament: 10 key features

The much-anticipated Procurement Bill was laid before the UK Parliament on 11 May and has already received its first reading in the House of Lords.   Once enacted, the Bill will overhaul the existing regulations governing the award of public and utility contracts in the UK (other than Scotland).  These outgoing regulations are based closely on EU Directives, which the Government sees as outdated and overly bureaucratic.  Following completion of the Parliamentary process, the Bill will become the Procurement Act and is likely to enter into force in 2023.

The Bill implements most of the changes foreseen in the Government’s Green Paper of December 2020 on transforming public procurement, as modified in its response to the Green Paper consultation, issued in December 2021.  We covered these developments here and here.

The Bill is a long and complicated instrument, running to well over 100 pages.  We outline and comment on ten of the Bill’s main features below.  We will closely monitor the Bill’s progress through Parliament and issue further updates in due course.

The Procurement Bill

A single Act consolidating four previously separate sets of regulations

As foreseen in the Green Paper, the Procurement Bill will replace the four separate sets of regulations that are currently applicable in England, Wales and Northern Ireland: namely, the Public Contracts Regulations 2015, the Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016 and the Defence & Security Public Contracts Regulations 2011.

The Bill will therefore ensure that all of the procurement regulations applicable in the UK (outside Scotland) can be found in a single instrument.  This consolidation is to be welcomed, but does mean that the Bill’s provisions are littered with detailed carve-outs and exceptions applicable only to utilities, concessions or defence.

Familiar provisions, but substantially re-worded and re-ordered

The Bill covers almost all of the provisions found in the current regulations, but these are extensively re-worded and re-ordered.  For example, the voluminous rules on scope (relevant entities and contracts), exemptions, technical specifications, contract modifications and court remedies remain substantively similar, but have all been rewritten in a more British style.

New terminology

Underlining the last point, the Bill introduces a lot of new terminology.  For example:

  • Excludable supplier, for bidders falling within a discretionary exclusion ground
  • Treaty state supplier, for bidders from countries with which the UK has a free trade agreement, giving them equal access to UK public contracts.
  • Planned procurement notice, instead of prior information notice (PIN)
  • Tender notice, instead of contract notice
  • Dynamic markets, in place of dynamic purchasing systems
  • Most advantageous tender, replacing most economically advantageous tender
  • Order setting aside the contract, instead of a declaration of ineffectiveness.
  • Contract details notice, instead of a contract award notice.

Increased use of Schedules

It is noticeable that many of the core provisions which appear in the main body of the current regulations are relegated to the 11 schedules at the back of the Bill.  These include the extensive provisions on exempted contracts (Schedule 2), valuation of contracts (Schedule 3), grounds justifying direct awards (Schedule 5), bidder exclusion grounds (Schedules 6 and 7) and permitted contract modifications (Schedule 8).

The increased use of Schedules arguably makes the text less user-friendly, as readers will frequently need to scroll between the front and back ends of the Act in order to ascertain the full picture on any particular point.

A simpler, less-regulated competitive award procedure

The above aspects of the Bill could be described as mere window-dressing, but the Bill does also include some more substantive changes.  In our view, the most important is the new “competitive award procedure”.  This single, flexible procedure, which authorities may structure largely as they see fit, will replace four existing procedures: namely, the restricted procedure, competitive dialogue, the competitive procedure with negotiation, and innovation partnerships.  The current plethora of overlapping procedures is unnecessary and confusing.  Rolling them into one, flexible process is a genuine improvement.

Greater scope to adjust procurements mid-process

Another helpful innovation is an express provision (clause 31 of the Bill) allowing contracting authorities to make non-substantial modifications to the terms of a procurement at any time before the deadline for submitting tenders.  In a similar vein, clause 23 allows an authority to refine its award criteria at any time before it invites bidders to submit their tenders.

Open frameworks

The Bill retains most of the existing rules on framework agreements, including their prima facie maximum duration of four years.  However, as foreseen in the Green Paper, the Bill also introduces a new option, called “open frameworks” (clause 47).   These are successive frameworks which may last for a total period of 8 years, provided the framework is re-opened to competition at least once during its first three years and once in the subsequent 5 years.  It is debateable whether this rather complicated new option offers any real improvement on the current possibility of awarding two (or more) successive frameworks of four years each.

Increased transparency – and red tape

Another recurring theme of the Bill is the requirement for increased transparency.  In particular, contracting authorities will be required to publish various new types of notice.  In addition to the PINs, contract notices and award notices that already have to be published (and which will be re-named, as noted above), the Bill provides for at least seven new types of notice:

  • Preliminary market engagement notice (clause 18 of the Bill)
  • Transparency notice (before any direct award) (clause 43)
  • Payment compliance notice (clause 64)
  • Contract change notice (clause 69)
  • Contract termination notice (clause 72)
  • Below-threshold tender notice (clause 79)
  • Pipeline notice (clause 82)

Furthermore, before entering into any contract worth more than £2 million, the Bill (clause 50) requires the contracting authority to set and publish at least three key performance indicators (KPIs).  The authority must then publish an assessment against those KPIs at least every 12 months during the contract’s term (clause 66).

Greater transparency has its merits, but these new publication requirements will impose a significant administrative burden on contracting authorities.  One of the Government’s stated aims in overhauling the regulations was to make the rules less bureaucratic, but these new publicity requirements will entail more “red tape”, not less.

A (slightly) modified remedies regime

Part 9 of the Bill makes only modest adjustments to the existing remedies regime.  As expected, the more radical changes floated in the Green Paper, including a cap on damages and the introduction of a specialised procurement tribunal, have been dropped.

The most significant change in this part of the Bill is a newly-worded test to be applied by courts when deciding whether to lift the automatic suspension on contract-making.  The new test requires courts to take into account the public interest in ensuring compliance with procurement law and in avoiding delays to public contracts, as well as the private interests of suppliers and whether damages would be an adequate remedy for the claimant.  In reality, however, these matters are already taken into account under the existing “balance of convenience” test derived from the American Cyanamid case.

Debriefing of unsuccessful bidders still required

Somewhat surprisingly, the Green Paper proposed abandoning the requirement that authorities send debrief letters (often called standstill or Alcatel letters) to unsuccessful tenderers before signing the contract with the winning bidder.  The Bill, however, requires authorities to send an “assessment summary” to each tenderer which sets out information about the authority’s assessment of that tenderer’s tender and the tender of the winning bidder (clause 48).  Although the nature of the required information is not specified, this sounds like a debrief letter in all but name.

Conclusion

Overall, the Bill delivers upon most of the changes foreseen in the Green Paper.  However, as outlined above, many of these changes are somewhat cosmetic in nature and do not fundamentally alter the underlying substance.  Moreover, the sheer length and complexity of the Bill calls into question whether it achieves the Government’s original stated aims of simplifying the procurement rules and making them less burdensome for the public sector, utilities and their suppliers.

Tim Briggs
Tim Briggs
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Adrian Brown
Adrian Brown
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Nusrat Zar
Nusrat Zar
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Andrew Lidbetter
Andrew Lidbetter
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Rachel Lidgate
Rachel Lidgate
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Jasveer Randhawa
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
Andrew Lidbetter
Partner
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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

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

Government releases consultation paper on the replacement of the Human Rights Act

The Ministry of Justice has today released a consultation paper outlining proposals for reform of the Human Rights Act 1998.

Reform has been anticipated for many years, having been brought to the forefront of public attention upon the release of the Government’s 2019 manifesto. The consultation paper proposes an ‘overhaul‘ of the Act in order to ‘restore common sense to the application of human rights in the UK‘. It states that it will remain faithful to the basic principles of human rights in the European Convention on Human Rights and proposes a new, distinctly British, Bill of Rights, designed to ‘make sure a proper balance is struck between individuals’ rights, personal responsibility, and the wider public interest‘.

The consultation paper proposes the following in relation to the new Bill of Rights:

  • The United Kingdom is to remain a party to the European Convention on Human Rights, and the Bill of Rights will retain the rights listed in Schedule 1 of the 1998 Act.
  • Section 2 of the 1998 Act, which requires English courts to ‘take into account‘ Strasbourg jurisprudence, is to be amended so as to provide that domestic Courts should firstly consider whether a rights issue can be solved by reference to domestic legislation or the common law. The aim is to ensure a wider range of jurisprudence is considered by English courts and to foster a more ‘autonomous‘ approach to the development of human rights.
  • Section 3 of the 1998 Act, which requires English Courts to interpret legislation as compatible with Convention rights ‘so far as it is possible‘, is either to be repealed or replaced by language that is less strict: legislation should be interpreted as compatible with Convention rights where this could be done ‘on an ordinary reading of the words‘ of the statute and where it would be ‘consistent with the overall purpose of the legislation‘.
  • The right to a jury trial is to be added.
  • The importance of the right to freedom of expression is to be emphasised, and the Courts should only grant relief impinging upon it when there are exceptional reasons.
  • A permission stage for human rights claims is to be introduced to weed out frivolous or unmeritorious claims. The permission stage could require applicants to show that they have suffered a ‘significant disadvantage‘ or, failing that, that their claim should be heard on the basis of ‘overriding public importance‘.
  • Public authorities are not to be held liable when acting in accordance with the will of Parliament. Moreover, the extent of public authorities’ ‘positive‘ obligations in human rights law is to be limited.
  • Guidance is to be provided to the Courts on the application of the principle of proportionality for qualified Convention rights. Whilst the precise wording has not been determined, guidance will involve requiring Courts to take into account the expressed view of Parliament.
  • Deportations in the public interest are not to be inhibited by human rights claims.
  • The role of personal responsibility is to be recognised in the human rights scheme. The Bill of Rights could, for example, use a remedy system to reduce rewards on account of the applicant’s conduct.
  • A process for assessing European Court of Human Rights’ rulings is to be set up, with Parliament at the centre.

The consultation closes on 8 March 2022. The Ministry of Justice states that after it has received and considered the responses, it will in due course put forward legislative proposals to Parliament to revise and replace the Human Rights Act with a Bill of Rights.

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

Public Law Podcast: The Judicial Review and Courts Bill

In the latest episode of our Public Law Podcast, Andrew Lidbetter and Nusrat Zar are once again joined by Vikram Sachdeva QC of 39 Essex. They consider the implications of the Judicial Review and Courts Bill introduced into Parliament in July. This podcast follows on from our episode earlier this year which covered the Government’s consultation on judicial review, in particular from HSF’s experience of judicial review across many different sectors. That episode can be found below.

You can read more about the issues discussed in this episode in the following blog posts:

This podcast can be listened to on SoundCloudApple and Spotify and don’t forget to subscribe to the channel to receive updates on future episodes.

We welcome feedback and if you would like us to cover particular topics in the future please use the contact details below to get in touch.

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

Government introduces the Judicial Review and Courts Bill into Parliament

On 21 July, the Government introduced the Judicial Review and Courts Bill into Parliament. The Bill was foreshadowed in the Queen’s Speech on 11 May as part of the Government’s aim to ‘restore the balance of power between the executive, legislature and the courts’. The Government’s press release states that the Bill will ‘equip judges with the tools to give more tailored solutions in judicial review cases’. The Government has published a number of ‘fact sheets’ on aspects of the Bill, accessible here, as well as a detailed explanatory note.

As anticipated, the Bill includes provisions for quashing orders to be made subject to conditions, namely to not take effect until a date specified in the relevant order (i.e. suspension of the order) or removing or limiting any retrospective effect of the quashing of the impugned act. Judges will be “empowered” to use these powers at their discretion.

The Bill also provides for the removal of “Cart” judicial reviews(subject to some limited exceptions). Applications for judicial review against a decision of the Upper Tribunal (the “UTT“) to refuse permission to appeal against a decision of the First-Tier Tribunal (the “FTT“) on the basis that the FTT’s decision was affected by an error of law and therefore the UTT’s decision was also so affected are referred to as applications for a “Cart” judicial review. They derive their name from the decision of the Supreme Court in R (Cart) v The Upper Tribunal [2011] UKSC 28. Described as “inefficient” by the Government, the removal of “Cart” judicial reviews follows a recommendation made in the report by the Independent Review of Administrative Law (“IRAL“). The Bill does, however, provide for some limited circumstances in which a challenge can still be brought to a decision of the UTT on permission to appeal. These are set out in Clause 2(4) and include where the UTT has acted in bad faith or in fundamental breach of the principles of natural justice.

The Bill does not provide for clarification on the effect of statutory ouster clauses more generally or on the principles which lead to a decision being a nullity by operation of law. These were topics on which the Government recently consulted (along with the removal of “Cart” judicial reviews and modifications to quashing orders). The Bill’s explanatory note makes clear that the Government has “decided not to proceed with” these proposals following consideration of the IRAL report and responses to the consultation.

The Bill is awaiting a second reading on a date to be announced. With the House of Commons now in recess, this will not take place before Parliament resumes in early September.

Our previous blog posts on this topic can be found here:

Andrew Lidbetter
Andrew Lidbetter
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Nusrat Zar
Nusrat Zar
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Jasveer Randhawa
Jasveer Randhawa
Of Counsel
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Christine Iacono
Christine Iacono
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Public Law Podcast: Government Consultation on Judicial Review

In the latest episode of our Public Law Podcast, Andrew Lidbetter, Nusrat Zar and Vikram Sachdeva QC of 39 Essex consider the Government’s recent consultation on judicial review following the Independent Review of Administrative Law submitted in January.

You can read more about the issues discussed in this episode in the following blog posts:

This podcast can be listened to on SoundCloudApple and Spotify and don’t forget to subscribe to the channel to receive updates on future episodes.

We welcome feedback and if you would like us to cover particular topics in the future please use the contact details below to get in touch.

Andrew Lidbetter
Andrew Lidbetter
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Nusrat Zar
Nusrat Zar
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Jasveer Randhawa
Jasveer Randhawa
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HSF responds to Government’s Consultation on Judicial Review Reform

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

The Consultation

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

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

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

Our Response

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

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

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

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

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

Conclusion

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

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

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

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

Background

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

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

The IRAL’s Report

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

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

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

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

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

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

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

The Consultation

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

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

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

The Consultation closes on 29 April 2021.

Conclusion

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

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

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

Previous related blog posts

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

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

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

 

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