JR 2012seminar

Judicial Review Conference

10 am – 4 pm, Wednesday 20th June 2012

The Law Society, 113 Chancery Lane, London

Accredited with the Solicitors Regulation Authority & Bar Standards Board for 5 CPD hours

Richard Clayton QC

Jonathan Moffett

Andrew Sharland

Paul Greatorex

Sarah Hannett

Annabel Lee

4‐5 Gray’s Inn Square, Gray’s Inn, London WC1R 5AH

Tel: 020 7404 5252 Fax: 020 7242 7803

Email: clerks@4‐5.co.uk Website: www.4‐5.co.uk

mailto:[email protected]

http://www.4-5.co.uk/

2 Judicial Review Conference – June 2012

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TABLE OF CONTENTS

Page

5 Timetable

7 Speaker Biographies

11 Top Ten Public Law Cases

Richard Clayton QC

25 Bias 69 Slides

Andrew Sharland

75 Practice and procedure update 99 Slides

Annabel Lee

103 Policies: the expanding role of the courts 119 Slides

Jonathan Moffett

123 Judicial review and human rights 142 Slides

Sarah Hannett

149 Irrationality 156 Slides

Paul Greatorex

“A major player in administrative and public law”

‐ Chambers & Partners


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TIMETABLE

10.00am Richard Clayton QC

Top ten cases of the year

10:40am Andrew Sharland

Bias

11.20am Coffee

11.40am Annabel Lee

Practice and procedure update

12:20pm Question and answer session

12.30pm Lunch

1.30pm Jonathan Moffett

Policies: the expanding role of the courts

2.10pm Sarah Hannett

Judicial review and human rights

2.50pm Coffee

3.05pm Paul Greatorex

Irrationality

3.45pm Question and answer session

4.00pm End

“An excellent choice for Administrative Law”

‐ Legal 500


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Speaker Biographies

About the Speakers: 4‐5 Gray’s Inn Square is a leading set of chambers with a long history of

specialising in public law. Members of Chambers appear in many of the leading cases in the

field. Both Chambers as a whole and eighteen of its barristers individually are listed in the

legal directories as leaders in administrative and public law.

Richard Clayton QC practices at 4‐5 Grays Inn Square, covering a wide

range of advisory and litigation public law work: e.g. community care

and mental health, education, health care, human rights, local

government vires and finance, constitutional and standards issues,

education, planning and environmental cases, Privy Council and

international constitutional work, and public procurement. He is the UK representative to

the Venice Commission, the Council of Europe’s advisory body on constitutional law, was the

Chairman of the Constitutional and Administrative Law Bar Association in 2008‐ 2010, and a

former Vice Chair of Liberty. Richard has been an Associate Fellow at the Centre for Public

Law at Cambridge University since 2001. Richard is ranked in Chambers Directory and the

Legal 500 as a Leading Silk in Public Law, Human Rights and Local Government Law. He has

appeared in a number of House of Lords and Privy Council cases. Recent work includes,

acting for care home owners in a challenge to charges set by the local authority,

R(Southwest Care Homes v Devon County Council, May 2012, R(Condliff) v North

Staffordshire PCT [2012] 1 All ER 689 (CA‐ Art 8 and health care) , R(Bahia) v SSHD [2011]

EWCA Civ 895) (CA‐ Bar Council intervention concerning costs and Boxall principles),

R(Rahman) v Birmingham CC [2011] EWHC 944 (Admin) (Public law equality duties and

budget cuts), R(Buckinghamshire CC) v Kingston CC [2011] EWCA Civ 457 (CA‐ community

care and consultation), R(Lewis) v Persimmon Homes [2009) 1 WLR 83 (local government

and bias) and R(Reynolds) v Independent Police Complaints Commission [2009] 3 All ER 237 (

the right to investigating a death under Art 2),

Jonathan Moffett has an extensive public law practice, with an

emphasis on judicial review and statutory appeals, and he has

particular expertise in the interface between public law and

human rights. His practice encompasses matters across the full

range of public law, including regulatory judicial review, local government law

(including community care), education matters, healthcare law, immigration law,

environmental and planning matters, and equalities and human rights. Jonathan is

ranked as a leading junior in administrative and public law by both Chambers & Partners and

The Legal 500, and he is a member of the Attorney‐General’s A Panel of Counsel to the

Crown, the Welsh Government’s panel of counsel, and the Equality and Human Rights

Commission’s panel of counsel. He is co‐author (with Jonathan Auburn and Andrew

Sharland, both also of 4‐5) of OUP’s forthcoming major practitioners’ text on Judicial Review.

Andrew Sharland was called to the Bar in 1996. He has a large

practice in administrative and public law, covering community

care, mental health, education, prisons, parole board, coroners

and planning. He is ranked in the legal directories (Chambers

and Partners and Legal 500) as a “leading junior in

administrative and public law, local government law and education law”. Recent cases

include R(Essex CC) v Secretary of State for Education [2012] EWHC 1460 (Admin)

(successful challenge to the Secretary of State’s decision to cut funding for Sure Start

programmes in Essex) and Kennedy v The Charity Commission [2012] EWCA Civ 317

(Article 10 ECHR and Freedom of Information Act 2000 (hearing before the Supreme

Court pending). He is on the Treasury A‐Panel. He co‐wrote the Human Rights volume

of Atkins Court Forms (Butterworths, 2007) and Media law and Human Rights (OUP,

2009). Andrew is currently writing a practitioner’s’ textbook on judicial review for OUP

(with Jonathan Moffett and Jonathan Auburn).

Paul Greatorex has a very busy practice in all areas of public and

administrative law and is frequently instructed in judicial reviews. He

has particular expertise in immigration, education, community care,

planning and national security cases. He also practises in the areas of

mental capacity and employment law as well as local government


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matters generally. He is on the Treasury B panel and directories recommend him as a junior

in administrative and public law and education law.

Sarah Hannett has a busy public law practice, which focuses on

local government law, education, community care and human

rights. She appears regularly in the Administrative Court and the

Upper Tribunal on behalf of claimants, the Government, local

authorities and other public authorities. Her recent cases include:

R (Campbell Park Parish Council) v. Milton Keynes Council [2012] EWHC 1204 (Admin)

(successful application to quash a parish council reorganisation order), R (Houghton

and Wyton Parish Council) v. Huntingdon Council [2012] EWHC 1302 (Admin)

(successful application for a protective costs order on behalf of a parish council); NC v.

Leicestershire County Council [2012] UKUT 85 (AAC) (test to apply when issuing a note

in lieu rather than a statement of SEN), Cala I [2010] EWHC 2866 (Admin); [2011] LGR

204 (successful challenge to decision of SSCLG to quash regional strategies) and Cala II

[2011] EWCA Civ 639; [2011] EWHC 11 (Admin); [2011] 1 P & CR 451. She was

appointed to the Attorney‐General’s B Panel of Counsel in 2012, and is a member of

the Equality and Human Rights Commission’s panel of counsel. Sarah is recommended

as a leading junior in Education Law in Chambers and Partners 2012, where she is

described as “establishing a growing field in the field of discrimination”. Sarah is the

barrister director (and co‐founder) of the 4‐5 Gray’s Inn Square/City University School

Exclusions Project, which provides pro bono representation by students to parents

appealing against their child’s permanent exclusion from school. Sarah is a

contributing editor to the Education Law Journal and the former editor of the Local

Government Bulletin. She is the author of the chapter on Special Educational Needs in

McManus, Education and the Courts (forthcoming), a contributing author to Coppel,

Information Rights (Hart, 2010) and co‐wrote the Human Rights volume of Atkins

Court Forms (Butterworths, 2010). In summer 2008 Sarah was a fellow at the Center

for Constitutional Rights in New York, for which she was awarded a Pegasus

Scholarship by Inner Temple. Prior being called to the Bar, Sarah was a lecturer in

public law and human rights at King’s College, London.

Annabel Lee has a broad range of experience in public law including local

government, education, community care, immigration, information

rights and human rights. She regularly advises public bodies on both

procedural and substantive matters.


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TOP TEN PUBLIC LAW CASES OF LAST 12 MONTHS

Community Care

1. In SL v Westminster City Council1 the claimant was an Iranian with mental health

problems including tendencies towards self-harm. Westminster conducted an

assessment of his community care needs. It was found that Westminster

considered that he should continue to have weekly meetings with a care

coordinator who offered advice and encouragement to the claimant, arranged and

renewed contact with counselling groups and generally monitored his condition

and progress but did not consider that constituted care and attention. At first

instance, Burnett J agreed. However, the Court of Appeal held that this level of

support qualified as care and attention. Laws LJ appeared particularly impressed

by the fact that the care coordinator monitored the claimant’s mental state to avoid

a relapse or deterioration. Care and attention is not limited to acts done by the

LA’s employees or agents.

2. The Court of Appeal went on to consider whether that care and attention was not

otherwise available than by the provision of accommodation under s. 21 of the

National Health Service and Community Care Act 1990. The Court of Appeal

held that care and attention is not otherwise available to an individual unless it

would be reasonably practicable and efficacious to supply it without the provision

of accommodation. The Court rejected a broader submission to the effect that it

means that the provision of accommodation is reasonably required in order for

care to be furnished in a way that fully meets the Claimant’s needs. On the facts,

stable accommodation was plainly necessary for the support provided by the care

coordinator to be effective.

3. The local authority has applied for permission to appeal to the Supreme Court.

1 [2011] EWCA Civ 954

4. In R (McDonald) v Royal Borough of Kensington and Chelsea2, the claimant

had a small and neurasthenic bladder and had to urinate some three times during

the night but was unable to access a commode without help from a carer due to

her physical disabilities. In October 2008, her assessed need was stated in her

needs assessment to be “assistance to use the commode at night”. The defendant

proposed to meet that need by providing argued that the assessed need was more

properly expressed by reference to the underlying rationale of her situation as a

need to urinate safely at night, which could be met by providing incontinence pads

or sheeting. The defendant did not in fact implement that planned change. In

November 2009 and April 2010, the defendant reviewed the claimant’s needs

which were described as “help to access the toilet during the night and to be kept

safe from falling and injuring herself”. The defendant proposed to meet those

needs by providing incontinence pads. The defendant contended that those

reviews of the care plan constituted a re-assessment of her needs.

5. The Supreme Court upheld the defendant’s decisions as lawful. The assessments

were drafted by care workers and should be construed in a practical manner. The

reviews were to be read as including a re-assessment of the claimant’s needs. The

LA could re-assess for a number of reasons including changes to eligibility

criteria, medical or technological change or simply because it had changed its

mind as to the proper assessment of needs. The proposed method of meeting the

claimant’s needs was not an interference with her Article 8 rights; and in any

event was not a disproportionate interference with such rights. Nor was it a breach

of s .21 of the DDA 1995: the defendant’s decision could not be characterised as

the application of a practice, policy or procedure within the meaning of the

legislation and in any event was a proportionate means of achieving a legitimate

aim. Lord Dyson considered that the provision of assistance to use the commode

or the provision of pads were different ways of meeting need rather than different

descriptions of need as such (a point on which Lady Hale, who dissented, took a

different view).

2 [2011] UKSC 33


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6. The case of R(KM) v Cambridgeshire County Council has been considered by

both the Court of Appeal3 and the Supreme Court4 over the past year. Following

the remarks of Lady Hale in McDonald the Supreme Court was asked to review

the correctness of the decision in R v Gloucestershire County Council ex p

Barry5 which it declined to do in the circumstances of the case.

7. The claimant was a profoundly disabled man, aged 26, who lived with his mother,

brother and sister. He had been born without eyes, and suffered from other

physical and mental difficulties. He required help in feeding and caring for

himself. Under section 2(1) of the Chronically Sick and Disabled Persons Act

1970, the council had a duty to make arrangements for the claimant’s care,

including the provision of specified services for him. The Community Care,

Services for Carers and Children's Services (Direct Payments) (England)

Regulations 2009 allowed local authorities to discharge their obligations by

making a direct payment to the service-user so that they could themselves decide

how to spend it. The council exercised that power and made an offer to the

claimant which he rejected. An independent social worker assessed the claimant's

needs in the sum of £157,000. The claimant made a final offer of approximately

£85,000, but failed to explain how the sum had been calculated. The claimant

argued that his assessment was irrational and/or unlawful as it lacked adequate

reasoning, and he should have been paid £120,000.

8. The Supreme Court decided that when a local authority was required to consider

whether it was necessary, in order to meet the needs of a disabled person, to make

arrangements for the provision of any of the matters specified in s.2(1) of the 1970

Act, it should do so in three separate stages:

• First, it should consider what were the needs of the disabled person.

3 [2011] EWCA Civ 682 4 [2012] UKSC 23 5 (1997) LGR 638

• Second, in order to meet those identified needs, it should consider whether

it was necessary to make arrangements for the provision of any of the

specified services.

• Third, if the answer to the second stage was affirmative, it should consider

the nature and extent of those services.

• There was also a fourth potential stage of inquiry.

In cases where the disabled person qualified for a direct payment under the 2009

Regulations, the local authority was required to consider what was the reasonable

cost of securing provision of the services identified at stage three. One important

aspect of the second stage was to ask whether the needs of the disabled person

could reasonably be met by family or friends, by other organs of the state, or out

of the person's own resources.

9. The question at the second stage encompassed consideration of the relationship

between the scale of the local authority's resources and the weight of other

demands upon it, in other words, the availability of its resources: see R v

Gloucestershire CC ex p Barry [1997] A.C. 584. That was also stated in the

secretary of state's current guidance, entitled "Prioritising need in the context of

putting people first: A whole system approach to eligibility for social care", dated

February 2010. That guidance was therefore precisely in accordance with the law.

However, the Council had not relied upon resource constraints in reaching its

decision. (

10. For the purpose of the fourth stage, costing each of the requisite services upon a

blank sheet of paper would be unacceptably laborious and expensive. Many local

authorities therefore used a mechanism known as a "resource allocation system"

(RAS) which ascribed points to each eligible need, and an annual sum to the total

points. The Council had also used a second indicative tool, called an "upper

banding calculator" (UBC), which reflected factors elevating the requisite level of

services and ascribed an additional sum. What was crucial was that once the

indicative sum had been identified, the requisite services in each case should be

costed in a reasonable degree of detail so that a judgement could be made as to

whether the indicative sum was too high, too low or about right. It had been


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rational for C to use the RAS and UBC provided that the result was cross-

checked. M's rationality challenge therefore failed.

11. The Council should have made a more detailed presentation to the claimant of

how he might reasonably choose to deploy the offered sum, and of its own

assessment of the reasonable cost of carers. It had failed to provide a timely

explanation, and a belated explanation had not repaired that deficit. However, it

appeared that the council's calculations had proceeded on the false premise that M

would receive no support from his family. Any flaw in council’s computation was

likely to have been in his favour.

12. Furthermore, the independent social worker had uncritically endorsed the wishes

of the claimant in his report, which had led him to believe that he had a higher

entitlement. It would be a pointless exercise of discretion to quash the council’s

assessment so that the claimant's entitlement might be considered again, perhaps

to his disadvantage. The Supreme Court went on to approve the decision in R(L)

v Leeds City Council6 and to approve the decisions in R (Savva) v Kensington

and Chelsea RLBC.7

Disciplinary issues and Article 6

13. In R (G) v The Governors of X School8 the claimant had been employed as a teaching

assistant at the school. Following allegations of a sexual relationship with a pupil, he was

suspended and disciplinary proceedings were instigated. The claimant sought to have

legal representation during those proceedings but the school refused.

14. At the conclusion of the disciplinary proceedings, the claimant was dismissed. Under the

Safeguarding Vulnerable Groups Act 2006, the school reported the circumstances of G's

dismissal to the Independent Safeguarding Authority (ISA). It was yet to make a decision

about whether to place the claimant on the children's barred list. It was not disputed

that the European Convention on Human Rights 1950 Art.6 (1) applied to proceedings

6 [2010] EWHC 3324 (Admin) 7 [2010] EWCA Civ 1209 8 [2011] UKSC 30

before the ISA because the decision of the ISA would directly determine the claimant's

civil right to practise his profession and work with children generally. However, the

claimant argued that the refusal to allow him legal representation also breached his

right to a fair hearing under Art.6 (1).

15. The Court of Appeal upheld the claim and decided where an individual was subject to

two or more sets of proceedings (or two or more phases of a single proceeding) and a

civil right or obligation enjoyed or owed by him would be determined in one of them, he

might, by force of Art.6, enjoy appropriate procedural rights in relation to any of the

others‐ if the outcome of that other would have a substantial influence or effect on the

determination of that civil right or obligation. The issue that had to be considered is

what was the kind of connection required between a set of proceedings (where an

individual's civil rights were not being explicitly determined) and another set (where

they were being explicitly determined, for art.6 to apply in both sets of proceedings).

16. The Supreme Court disagreed with the Court of Appeal’s conclusion, holding that it was

not the function of the school’s disciplinary proceedings to determine the civil right in

issue but rather it was concerned only with the claimant’s employment at the school.

Therefore, in and of itself the school’s disciplinary proceedings did not engage Art. 6 and

it followed that the employee had no right to legal representation at the disciplinary

hearing.

17. The Supreme Court held that the European Court of Human Rights had adopted a

pragmatic, case‐sensitive approach to the problem of what kind of connection was

needed between two such sets of proceedings before Art.6(1) could apply. A number of

factors had to be taken into account including whether the decision in the first set of

proceedings was capable of being dispositive of the determination of civil rights in the

second or at least causing irreversible prejudice by partially determining the outcome of

the second; how closely the two sets of proceedings were linked; whether the object of

the two proceedings was the same; and whether there were any policy reasons for


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art.6(1) not to apply in the first set of proceedings: see Ringeisen v Austria (No.1),9 Le

Compte v Belgium,10 Ruiz‐Mateos v Spain11 and Al‐Fayed v United Kingdom12.

18. The Court of Appeal's test of "substantial influence or effect" was a useful formulation

and should be adopted. Central to the Court of Appeal's reasoning for its decision that

Art.6 (1) applied to the disciplinary proceedings was the conclusion that the findings of

the disciplinary panel would be likely to have a profound influence on the decision

reached by the ISA.

19. However, the ISA guidance notes and case worker guidance showed that the ISA was

required to exercise its own independent judgment both in relation to making

findings of fact and assessing their significance before deciding whether it was

appropriate to place a person on the barred list. There was no reason to doubt that

case workers would do as they were instructed. The absence of an oral hearing did

not prevent the ISA from making its own findings of fact. It was also quite clear that

the internal proceedings before the employer and the barring proceedings before

the ISA were separate and distinct from each other and were not inextricably linked.

Their decisions and procedures were directed to different issues.

Consultation

20. The linked cases of Vale of Glamorgan Council v Lord Chancellor13 and R

(Murray & Co) v Lord Chancellor)14 dealt with the closure of Barry Magistrates’

Court and Sittingbourne Magistrates’ Court respectively: both claims failed. The

closure decisions had followed a review of court buildings in England and Wales.

The statutory framework was that the defendant had a general duty to ensure that

there was a sufficient system to support the carrying on of the business of

magistrates’ courts and a power to provide court houses to fulfil that duty (Courts

9 A/13) (1979‐80) 1 E.H.R.R. 455 10 (A/43) [1982] E.C.C. 240 11 A/262) (1993) 16 E.H.R.R. 505 12 17101/90) (1994) 18 E.H.R.R. 393 13 [2011] EWHC 1532 (Admin) 14 2011] EWHC 1528 (Admin

Act 2003 ss. 1 and 3). There was no duty to consult in the event of closure, but a

voluntary consultation had been carried out.

21. In Vale of Glamorgan Council the claimants argued that the defendant had failed

properly to consult on alternatives to the closure of Barry Magistrates’ Court. The

court rejected this argument. It held that “there is no general principle that a

minister entering into consultation must consult on all the possible alternative

ways in which a specific objective might arguably be capable of being achieved.

That would make the process of consultation inordinately complex and time

consuming if that were so”. It was for the defendant, subject to rationality, to

identify the issues for consultation, and was entitled to decide only to consult

about the closures. It was open to any consultee to suggest alternatives, but the

defendant was not then required to recirculate any such suggest or to further

consult on it.

22. Arguments based on failure to have regard to relevant considerations were

rejected on the basis that it was not mandatory for the defendant to have regard to

the factors identified. There was also an unsuccessful challenge based on a failure

to give reasons.

23. In Murray & Co initially the main complaint about consultation was that the

defendant had not disclosed the criteria that it would adopt in deciding which

courts to close. However, the criteria (i.e. the number of courtrooms, standard of

custody facilities, standard of security, standard of victims’ and witnesses’

facilities, and Disability Discrimination Act compliance) were so obvious that

they did not need to be spelled out in the consultation procedure.

24. The claimant then sought to argue that the benchmarking criteria by which those

matters were assessed ought to have been disclosed. This argument failed because

the benchmarks had not been established at the start of the exercise, but only

developed when the responses were being considered. The court held that there

was no duty to provide this information. Having noted that there is not, in general,


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a duty to circulate submissions made in response to a consultation exercise, the

court went out:

“What of matters that emerge internally during a consultation? While

they cannot be equated with matters that emerge as a result of external

responses, there are some similarities. To require a public body

engaged on a consultation exercise routinely to circulate information

about the way its consideration of the matters before it is developing

and afford an opportunity for further responses has the potential to

lead to a never-ending dialogue and to be inimical to the principle that

there must come a time when finality has to be achieved. It is clear

from the decisions in Bushell v Secretary of State for the

Environment15 and Edwards v Environmental Agency [2006] EWCA

Civ 877 at [para] 103; [2008] UKHL at [para] 44 that there is in

general no obligation on a minister to communicate advise received

from officials or internal material or information to consultees. There

may, as we have stated, be exceptional cases, for instance, where the

matters which have emerged lead the public authority to wish to do

something fundamentally different from the proposals consulted upon,

or fairness otherwise requires further consultation on a matter or issue

that has been thrown up. One such situation may be where the internal

material undermines the value of the responses that have been made to

a consultation. We are, however, satisfied that this is not one of those

exceptional cases.”

Legitimate expectation

25. In R. (Davies) v Revenue and Customs Commissioners the appellants claimed

that they were not liable to pay tax as residents because they had moved abroad to

work although they retained some links in the UK.16 They relied on guidance

issued by the then Inland Revenue entitled ‘Residents and non-residents – liability

15 [1981] AC 75 at [para] 102 16 [2011] UKSC 47

to tax in the United Kingdom (IR20), and argued that this gave rise to a legitimate

expectation.

26. This raised an issue about what type of statement can found a legitimate

expectation. The lead judgment for the majority on this point was given by Lord

Wilson. He referred to the judgement of Lord Bingham in R v Inland Revenue

Commissioners ex parte MFK in which he had held, in relation to an ad hoc

application for advise, that the assurance had to be ‘clear, unambiguous and

devoid of relevant qualification’.17 A more formally published statement might be

binding in any case falling clearly within its terms. Lord Wilson was dealing with

formally published guidance but he declined to hold that there was any rigid

distinction between the two kinds of case. The correct approach was:

“It is better to forsake any arid analytical exercise and to proceed on the

basis that the representations in the booklet for which the appellants

contend must have been clear; that the judgment about their clarity must be

made in the light of an appraisal of all relevant statements in the booklet

when they are read as a whole; and that, in that the clarity of a

representation depends in part upon the identify of the person to whom it is

made, the hypothetical representee is the [ordinarily sophisticated taxpayer’

irrespective of whether he is in receipt of professional advice.”

27. Applying that approach the guidance was poorly drafted but showed sufficiently

clearly that what was needed was a distinct break from the previous pattern of life

in the UK. If this could not be gathered from the guidance then it was ‘so unclear

as to communicate to its readers nothing to which legal effect might be given’

28. Lord Mance disagreed about the effect of the guidance but not about the test to be

applied. He said:

“… ‘the question is how on a fair reading of the promise it

would have been reasonably understood by those to whom it

was made’ [taken from Dyson LJ in Association of British

17 [1990] 1 WLR 1545


21


Civilian Internees – Far Eastern Region (ABCIFER) v

Secretary of State for Defence.18 The primary issue in each

appeal is thus how, on a fair reading, IR20 would have been

reasonably understood by those to whom it was directed. It is

for the courts to resolve this as a matter of law” (para. 70).

29. A further issue was whether a legitimate expectation could be gathered from the

practice of the Inland Review but this failed on the facts. As Lord Wilson pointed

out, such a claim is inherently more difficult to prove:

“’[T]he promise or practice… must constitute a specific undertaking or group, by

which the relevant policy’s continuance is assured’: R (Bhatt Murphy) v

Independent Assessor per Laws LJ at [43].19 The result is that the appellants

need evidence that the practice was so unambiguous, so widespread, so well‐

established and so well‐recognised as to carry within it a commitment to a group

of taxpayers including themselves of treatment in accordance with it.” (para. 19)

Reasons

30. In R. (Savva) v Kensington and Chelsea RLBC the substantive decision in this

case involved the manner in which the local authority had calculated a personal

budget to meet the appellant’s assessed needs for community care services.20 The

case also raised issues about the duty to give reasons. At first instance, the judge

held that although the statute did not impose a duty to give reasons, they were

required as a matter of fairness. The judge noted that statutory guidance

emphasised consistently the need for transparency even though it did not

expressly require reasons to be given.

31. The Court of Appeal approved this reasoning. It noted ‘a recognised trend in the

direction of requiring reasons’ (para. 19) and held that ‘[w]hen a local authority

18 [2003] EWCA Civ 473 19 [2008] EWACA Civ 755 20 [2010] EWCA Civ 1209

converts an established right – the provision of services to meet an assessed

eligible need – into a sum of money, the recipient is entitled to be told how the

sum has been calculated’ (para 20).

32. The court rejected an argument that it would be too onerous to give reasons. The

court accepted that there was a burden but ‘it is what simple fairness requires’

(para. 20). If basic reasons were not given then the recipient would not have any

means of satisfying him/herself that the amounts had been calculated properly. In

most cases reasons could be a brief listing of the required services and assumed

timings and costs.

33. The case also raised the question whether or not a duty to provide reasons may be

satisfied by notice in the decision letter that reasons will be provided on request.

Noting that there was a dearth of authority, the court addressed the point as a

matter of common sense. If reasons were offered but not requested then an

application for judicial review would be refused (para. 23).

Public sector equality duty

34. Claims involving the public sector equality duty remain very topical. In the last

month the claim in R(Essex County Council) v Secretary of State of Education21

succeeded, whereas another in R(Siwack) v Newham LBC was dismissed.22

35. In R(Bailey) v Brent LBC the Court of Appeal decided that the local authority had

not acted unlawfully when deciding to close half of its public libraries.23 The

local authority's decision to reduce its expenditure on public services was

primarily one for it to make as a democratically elected body. There was evidence

before the judge that the library service that had existed was not sustainable and

that new methods were required. That did not, however, avoid the requirement to

comply with s.7 of the 1964 Act and s.149 of the 2010 Act. Given the scale of the

spending reductions necessary the local authority's decision that the library service

21 [2012] EWHC 1460 (Admin) 22 [2012] EWHC 1520 (Admin) 23 [2011] EWCA Civ 1586


23


should bear a share of the reduction was not unlawful. The local authority was

aware of its statutory duties, including those relating to race discrimination. Duties

under the 2010 Act, and the implications of those duties, were set out in detail in

the report. It was fanciful to suggest that it was so obvious that library provision,

as distinct from other services, had discriminatory effects upon the Asian

community that it needed to be a significant factor in fundamental decisions as to

the apportionment of resources. The decision on which libraries to close was

carefully considered by the local authority; a full consultation was conducted and

fully reported to the local authority decision makers. The local authority was not

in breach of its duty under s.149 of the 2010 Act to have due regard to the need to

eliminate discrimination, in failing to give further consideration to the racial

dimension, in so far as it affected the Asian community in relation to other

communities. The local authority was not plainly confronted either on behalf of

the Asian community, or otherwise, with the issue that was now said to exist.

Factors were rightly and rationally considered when making the decisions as to

which libraries should be closed and decisions were explained in the reports. A

racial dimension did not render that choice unlawful. The section 149 duty to have

due regard did not require further consideration and analysis when the decision

was taken.

36. In R(Greenwich Community Law Centre) v Greenwich LBC the law centre

appealed the refusal its application for judicial review of the decision to cease

funding it.24 It provided legal advice to some of the most vulnerable people in an

area of London, relying on funding and one of its key funders had been the local

authority. Available grants for the voluntary sector were reduced in January 2011

as a consequence of the Government's comprehensive spending review. The local

authority reviewed its decision-making process to determine to whom funds

should be given and undertook a full equality impact assessment and a re-

commissioning exercise which led to a tendering process to provide legal advice

services which were split into four modules. The law centre was unsuccessful in

24 [2012] EWCA Civ 496

its tender for one of the contracts which was awarded to a different provider which

had scored more highly in the selection criteria. At a later meeting, two local

authority councillors exercised their right to call in the decision on the question of

accessibility and the geographical spread of the services. After a consideration of

those matters at a final meeting, the local authority reaffirmed its decision.

37. The Court of Appeal held that the Court needed to ask whether, as a matter of

substance there had been compliance by the local authority with its duties; it was

not a tick-box exercise: see R(Baker) v Secretary of State for Communities. 25 It

was only if a characteristic or combination of characteristics was likely to arise in

the exercise of the public function that they needed to be taken into consideration:

see R(Bailey) v Brent LBC.26 The local authority in practice dealt with all those

groups with the protected characteristics identified in section 149 of the Equality

Act which realistically might be affected by their decision. It had structured its

policy so as to ensure that those groups were the principal beneficiaries of such

funds as remained available. The alteration effected by the re-commissioning

exercise from funding each member of the law centre to provide all relevant types

of legal advice to choosing to fund one organisation only to provide each module

of legal advice was not a significant change in policy but was a shift in the way in

which the objectives of the policy were achieved which was designed to ensure

greater savings for the good of the beneficiaries of the service. A change from one

provider to another without more would not usually engage equality

considerations. The local authority fully recognised the accessibility implications

and the equality implications were also specifically discussed at its final meeting

and it was impossible to suggest that there was not due regard to that

consideration

RICHARD CLAYTON QC 19 June 2012

25 [2008] EWCA Civ 141 26 [2011] EWCA Civ 1586


25


BIAS27

A. Introduction

Summary of the law

1 A decision‐maker must not have a personal or pecuniary interest in the

outcome of the decision. He or she must not be prejudiced for, or against, a

particular party as a result of, for example, friendship or enmity. Further, the

decision‐maker must not predetermine the decision but consider it on the

merits, with an open mind.

2 A decision‐maker must not only be impartial but also be perceived to be

impartial. The former is important because it ensures a high quality of

decision‐making unaffected by irrelevant matters. The latter is important

because it maintains public confidence in the decision‐making process.

Decision‐makers must also, in certain circumstances, be independent of the

executive, the legislature and the parties.

Nature of the decision‐maker

3 The case law on bias relates to a wide variety of decision‐makers including

those exercising judicial, quasi‐judicial28 and administrative functions.29 As

with procedural fairness, the nature of the decision‐maker remains relevant

in relation to the particular requirements of bias. Allegations of bias are not

limited to low level decision‐makers but include challenges to senior

members of the judiciary.30

27 Andrew Sharland, 4‐5 Gray’s Inn Square. 28 Examples of quasi‐judicial decision‐makers include auditors, Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 and arbitrators, Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113, QBD. 29 Administrative decision‐makers include councillors and ministers as well as local authority officers and civil servants in government departments. 30 See eg R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, HL (disqualification of Law Lord); Dimes v Grand Junction Canal (1852) 3 H.L. Cas. 759, HL (disqualification of Lord Chancellor); Howell v Millais [2007] EWCA Civ 720 and El Farargy v El Farargy [2007] EWCA Civ 1149, [2007] 3 FCR 711 (High Court Judges).

4 The rule against actual bias applies to all types of decision‐makers.31 The law

on automatic disqualification or presumed bias arising as a result of the

decision‐maker having a direct financial interest in the outcome of the

decision also applies to all decision‐makers.32 However, the ‘promotion of a

cause’ category of presumed bias probably does not apply to administrative

decision‐makers.33 The rule against apparent bias applies equally to all

decision‐makers where the matters that give rise to the allegation of

apparent bias relate to personal interests albeit the context, including the

nature of the decision‐maker, is relevant to deciding whether the allegation is

made out.34 However, where the matter that gives rise to apparent bias

relates to predetermination, the rules applicable to judicial and

administrative decision‐makers are sufficiently different to merit separate

consideration.35 The requirement under art 6(1) ECHR that a tribunal must

be independent applies to administrative and judicial decision‐makers

provided that they are determining ‘civil rights and obligations’ or a ‘criminal

charge’ The scope of the common law right to an independent tribunal is

presently unclear.

5 The text in this chapter refers to decision‐makers generally unless the rule

being discussed is limited to either judicial or administrative decision‐makers.

Where rules applicable to judicial decision‐makers are discussed, the term

‘judge’ will be used although this includes juror, lay magistrate and members

of tribunals.

The impact of Article 6(1) ECHR on the law of bias

6 The incorporation of art 6(1) ECHR into domestic law by the Human Rights

Act 1998 has had a significant impact on the law in this area. Article 6(1)

31 R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139, CA, 162 per Simon Brown LJ. 32 R v Secretary of State for the Environment, ex p Kirkstall Valley [1996] 3 All ER 304, QBD, 325 per Sedley J. 33 Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin), para 87 per Ouseley J. However, the factual circumstances would need to be considered to see whether they gave rise to apparent bias. 34 R v Secretary of State for the Environment, ex p Kirkstall Valley [1996] 3 All ER 304, QBD, 321 per Sedley J. 35 R (Lewis) v Redcar and Cleveland BC [2008] EWCA Civ 746, [2009] 1 WLR 83, para 92 per Rix LJ.


27


ECHR provides that when ‘civil rights and obligations’ or a ‘criminal charge’

are determined an individual is entitled to an ‘impartial and independent

tribunal’. Independence and impartiality are two separate concepts although

they are linked.36 ‘Impartiality’ refers to a state of mind or attitude of the

decision‐maker in relation to the issues and the parties in a particular case or

decision. The word ‘impartial’ connotes an absence of bias, actual, presumed

and apparent.37 ‘Independence’ is the structural or institutional framework

that secures this impartiality. Decision‐makers should be independent of the

parties, the executive and the legislature.

7 The test for apparent bias has been adjusted to reflect the approach taken by

the European Court of Human Rights to the requirement that a tribunal

should be impartial so that what is now decisive is the appearance to the fair‐

minded observer38 rather than, as had previously been the case, the

appearance to the Court.39 Subsequent to this adjustment, the House of

Lords has suggested that there is now no difference between the common

law test of bias and the requirement under art 6(1) ECHR of an impartial

tribunal.40 However, whilst the test applied under the common law and art

6(1) ECHR when considering whether a decision is flawed as a result of bias or

lack of impartiality is broadly similar this does not mean that the same result

will invariably be reached under art 6 (1) ECHR and the common law. In

particular, the approach to the defence of necessity may well be different

and in cases where this defence is relevant it will be important to determine

whether art 6(1) ECHR is engaged.41

36 Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, [2006] 1 WLR 781, para 38 per Baroness Hale. 37 Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, [2006] 1 WLR 781, para 38 per Baroness Hale. The European Court’s case law on art 6(1) ECHR is divided up into subjective impartiality (actual bias) and objective impartiality (apparent bias and presumed bias) rather than the tripartite division under the common law. 38 Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, para 103 per Lord Hope. 39 R v Gough [1993] AC 646, HL. 40 Lawal v Northern Spirit Ltd [2003] UKHL 35, [2004] 1 All ER 187, para 14. See also In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, CA, para 85 per Lord Phillips MR. 41 It will only be engaged if the tribunal is determining ‘civil rights and obligations’ or a ‘criminal charge’.

8 The introduction, as a result of the incorporation of art 6(1) ECHR into

domestic law, of a requirement that a determination of a civil right or

obligation be before an ‘independent tribunal’ has also had a profound

impact on English law. A substantial number of administrative decisions

affecting an individual’s civil rights and obligations are made by decision‐

makers who are not independent within the meaning of art 6(1) ECHR. The

difficulties caused by this and the extent to which any such lack of

independence can be cured by subsequent judicial review are considered

below.

Reliability of old cases

9 Care should be taken when considering older judicial authorities for a

number of reasons. Firstly, what may have been considered acceptable some

decades, or even centuries, ago may no longer be considered acceptable in a

modern democratic State.42 Secondly, such cases may well have been

decided applying an old and now superseded test such as the ‘real danger of

bias’ test articulated by the House of Lords in R v Gough43 or some earlier

test such as a ‘real likelihood’44 or ‘reasonable suspicion’ rather than the ‘real

possibility’ which has been applied since the House of Lords’ decision in

Porter v Magill.45 The application of a different test may lead to a different

result although this is, of course, not inevitable.46

B. Actual Bias

42 Lawal v Northern Spirit Ltd [2003] UKHL 35, [2004] 1 All ER 187, para 22. 43 [1993] AC 646, HL. 44 R v Cambourne Justices, ex p Pearce [1955] 1 QB 41, DC, 51 per Lord Goddard CJ. 45 [2001] UKHL 67, [2002] 2 AC 357. 46Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 17, where the Court of Appeal stated that in the ‘overwhelming majority of cases we judge that application of the two tests would anyway lead to the same outcome.’ This comment was made in relation to the ‘real danger’ test in R v Gough [1993] AC 646, HL and the ‘reasonable suspicion’ test applied in earlier case law.


29


Introduction

10 Cases on actual bias are rare for a number of reasons.47 Firstly, it is likely that

decision‐makers, particularly judges are rarely biased.48 Secondly, it is very

difficult to establish cases of actual bias because the law does not permit the

questioning of decision‐makers about the possible existence of such bias.49

Thirdly, and perhaps most importantly, it is far easier to set aside a decision

on the grounds of apparent bias50 and therefore there is usually little or no

advantage in pleading actual rather than apparent bias. The only potential

advantage of alleging actual bias rather than apparent bias is that proof of

the former may overcome any waiver argument while the latter would not.51

11 The rule against actual bias applies to administrative as well as judicial and

quasi‐judicial decision‐makers.52

Definition

12 Actual bias arises when a decision‐maker allows a decision to be influenced

by partiality or prejudice or it has been demonstrated that the decision‐

maker has been influenced by partiality or prejudice in reaching his

decision.53 Actual bias deprives a litigant of their right to an impartial

tribunal. It also undermines the fairness of administrative decisions.

Consequences of actual bias

13 Where the existence of such partiality or prejudice is established, either the

decision‐maker is required to recuse themselves, if the matter is established

before the commencement of trial or the taking of the decision, or, if actual

47 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 3. 48 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 3. 49 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 3. 50 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 3 (the court refers to litigants only needing to discharge the ‘lesser burden’ of showing apparent bias). 51 R v Secretary of State for the Home Department, ex p Al Fayed [2001] Imm AR 134, CA, paras 86‐89 per Kennedy LJ, para 111 per Rix LJ. 52 R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139, CA, 162 per Simon Brown LJ. 53 In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, CA, para 38 per Lord Phillips MR; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 3.

bias is established subsequently, the judgment or decision must be

quashed.54

C. Presumed bias or automatic disqualification

Summary

14 The second category of bias relates to cases where the relationship between

the decision‐maker and one of the parties is such that the law presumes that

the decision‐maker is biased and consequently the decision‐maker is

disqualified from considering the matter without the need for any further

investigation of the factual circumstances. This type of bias has often been

categorised as relating to ‘automatic disqualification’. However, such

nomenclature is potentially confusing because the parties are able, in certain

circumstances, to waive their right to object permitting the decision‐maker to

consider the matter.55

15 Until recently, presumed bias was thought to be limited to cases where the

decision‐maker had a direct pecuniary or financial interest in the outcome of

the decision.56 However, the House of Lords, in R v Bow Street Metropolitan

Stipendiary Magistrate, ex p Pinochet Ugarte (No 2)57 extended the scope of

presumed bias to include cases where the decision‐maker ‘promotes a

cause’.

16 If a court concludes that the circumstances of the case do not fall within the

established categories of presumed bias, the factual circumstances must be

considered to see whether they give rise to apparent bias.

Financial interest

54 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 3. 55 T Jones ‘Judicial bias and disqualification in the Pinochet case’ [1999] PL 391, 399, suggests that the rule should be thought of as one o f ‘automatic disclosure’ rather than ‘disqualification’. 56 R v Gough [1993] AC 646, HL, 673, per Lord Woolf. 57 [2000] 1 AC 119.


31


Rationale for rule

17 The rationale for the rule in relation to judges is that it would undermine

public confidence in the integrity of the administration of justice if a judge

was able to lawfully decide a case in which he or she had a direct financial

interest.58

Nature of financial interest

18 It is only ‘direct’ financial interests that give rise to presumed bias under this

head and, absent a waiver by all of the parties, disqualify the decision‐

maker.59 It is not entirely clear what the word ‘direct’ means in this context;

it may be used as an antonym for ‘too remote’ or it may be used to contrast

the interest with an indirect interest such as a close relative’s financial

interest. The better view is that expressed by Sedley J in R v Secretary of State

for the Environment, ex p Kirkstall Valley60 Sedley J who suggested that

‘direct’ was as the antonym of an interest which is too remote because this

eliminated a potential and unnecessary complication in the law.61 Indeed,

financial interests of close relatives, if the decision‐maker is aware of them,

are likely to disqualify the decision‐maker.62

19 Examples of decision‐makers being disqualified as a result of their direct

financial interests include:

(1) the Lord Chancellor who had a substantial shareholding in a

canal company that was a party in the proceedings before

him;63

58 R v Gough [1993] AC 646, HL, 661 per Lord Goff. 59 The cases refer to pecuniary, proprietary and financial interests without differentiation between the various types of interest. “Financial interest” is used in this chapter to include proprietary and pecuniary interests. 60 [1996] 3 All ER 304, QBD, 325‐326. 61 Ibid at 325‐6. 62 See Guide to Judicial Conduct (published by the Judge’s Council), para 3.8 which suggests that known financial interests of the judge’s family will disqualify them. ‘Judge’s family’ includes a judge’s spouse, son, daughter, son‐in‐law, daughter‐in‐law, and any other close relative or person who is a companion or employee of the judge and who lives in the judge’s household’.’ 63 Dimes v Grand Junction Canal (1852) 3 H.L. Cas. 759, HL.

(2) a Councillor who was an estate agent for the vendor of land

affected by a decision of the Council to permit

development.64

20 Contingent and non‐beneficial interests are not sufficient to give rise to

presumed bias.65 Examples of decision‐makers not being disqualified as a

result of financial interests, either because they are not ’direct’ or for some

other reason, include:

(1) a judge who was a trustee to an organisation that had shares

in a corporation;66

(2) a judge who held shares in a bank which had been robbed by

the accused.67

Size of the direct financial interest

21 Not every direct financial interest is sufficient to establish presumed bias.

Although older authorities indicated that a decision‐maker is disqualified

‘however small’ his or her financial interest,68 it is clear that this is no longer

good law. The rule is subject to a de minimis exception.69 To automatically

disqualify a decision‐maker, the outcome of the case must realistically affect

the decision‐maker’s financial interest although any doubt should be resolved

in favour of disqualification.70 It does not matter that the decision‐maker in

64 R v Hendon Rural District Council, ex p Chorley [1933] 2 KB 696, DC. 65 R v Manchester, Sheffield and Lincolnshire Railway Co (1867) LR 2 QB 336, HC, 339. See also Jones v DAS Legal Expenses [2003] EWCA Civ 1071, [2004] IRLR 218 (No presumed bias where the husband of a tribunal chair was a barrister who had occasionally been instructed by the defendant company). 66 R v Rand (1866) LR 1 QB 230, DC, 232 per Blackburn J. 67 R v Mulvihill [1990] 1 WLR 438, CA. 68 See eg R v Rand (1866) LR 1 QB 230, DC, 232 per Blackburn J. See also R v Camborne Justices, ex p Pearce [1955] 1 QB 41, CA, 47 per Slade LJ. 69 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 10. 70 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA,paras 8, 10. Cf R v Hammond (1863) 9 LT 423 (Bail Court) and R v Secretary of State for Trade, ex p Anderson Strathclyde plc [1983] 2 All ER 233, DC, 237.


33


question states that he or she was unaware of the financial interest at the

time of making the decision.71

Nature of decision‐maker

22 Direct financial interests disqualify administrative as well as judicial and

quasi‐judicial decision‐makers.72 In relation to certain administrative

decision‐makers such as councillors and local authority officers, in addition to

the common law prohibition, there are statutory prohibitions preventing

them from partaking in decisions in which they have a financial interest.73

23 The fact that the Council itself, rather than the Councillors, has a financial

interest in the outcome of the decision does not give rise to presumed bias.74

Promotion of a cause

24 The House of Lords, in R v Bow Street Metropolitan Stipendiary Magistrate,

ex p Pinochet Ugarte (No 2),75 extended the ambit of presumed bias beyond

financial interests to include the disqualification of a judge who was involved,

whether personally or as a director in a company, in promoting the same

causes in the same organisation as a party to the suit.76 The House of Lords

concluded that Amnesty International Charity Limited (AICL) had a non‐

pecuniary interest in achieving a particular result by virtue of its relationship

with Amnesty International, who had intervened in support of the case that

Senator Pinochet should not be immune from extradition proceedings.

Further, Lord Hoffmann, by virtue of the fact that he was chairman and a

71 See Supperstone, Goudie and Walker, Judicial Review (4th edn, 2010), para 12.6.4. 72 R v Secretary of State for the Environment, ex p Kirkstall Valley [1996] 3 All ER 304, QBD, 325 per Sedley J (Chairman of urban development corporation had undisclosed interest in land that would materially increase in value if planning permission was granted). See also R v Hendon Rural District Council, ex p Chorley [1933] 2 KB 696, DC (Council decision quashed because one of the councillors disqualified as a result of a direct financial interest). 73 See Local Government Act 2000, s 49‐52 and Local Authorities (Model Code of Conduct) Order 2007 (SI 2007/1159). 74 R v Sevenoaks District Council, ex p Terry [1985] 3 All ER 226, QBD, 233 per Glidewell J. 75 [2000] 1 AC 119, HL. 76 R v Bow Street Metropolitan Stipendiary magistrate ex p Pinochet Ugarte (No 2), [2000] 1 AC 119, HL, 135 per Lord Browne‐Wilkinson; 139 per Lord Goff.

director of AICL, also had a similar interest in achieving such a result. In such

circumstances, he was presumed to be biased and therefore could not, in the

absence of a waiver by all parties, consider Senator Pinochet’s appeal.

25 The precise ambit of the House of Lords’ decision in Pinochet Ugarte is not

entirely clear.77 Their Lordships emphasised that the factual circumstances

were very unusual.78 The decision has been described as a “highly technical

one”.79

26 In Meerabux v Attorney General of Belize,80 the Privy Council distinguished

Pinochet, concluding that the mere fact that the chair of the disciplinary

tribunal was a member of the Bar Association did not identify him with the

complaint brought by that association against a former member of the

Supreme Court of Belize. The chairman was therefore not acting as a judge in

his own cause and was not disqualified from considering the matter.81

27 The decision in Pinochet Ugarte introduced unnecessary complexity and

uncertainty into the law of presumed bias.82 Some commentators have

questioned whether there is a need for the presumed bias category at all,

suggesting that such cases would be better considered under the apparent

bias test.83 Such an approach has been adopted in Australia where the

77 See A Olowofoyeku, ‘The Nemo Judex Rule: The case against automatic disqualification’ [2000] PL 456. 78 R v Bow Street Metropolitan Stipendiary magistrate ex p Pinochet Ugarte (No 2), [2000] 1 AC 119, HL, 135 per Lord Browne‐Wilkinson. 79 Meerabux v Attorney General of Belize [2005] UKPC 12, [2005] 2 AC 513, para 21. Lord Hope, who wrote the Privy Council’s opinion in Meerabux was one of the Law Lords who delivered a speech in Pinochet Urgarte. 80 [2005] UKPC 12, [2005] 2 AC 513. 81 Meerabux v Attorney General of Belize [2005] UKPC 12, [2005] 2 AC 513, para 24. (The Privy Council suggested that the position would have been different if the Chairman of the disciplinary tribunal had taken part in the decisions which led to the making of the complaints. After rejecting the allegation of automatic disqualification the Privy Council went on to consider whether the circumstances of the case gave rise to apparent bias). See also Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366, CA (Council of the Medical Defence Union had brought a complaint against a doctor. Two of the members of the decision‐making body were members of the Medical Defence Union but not the Council. The Court of Appeal, by a majority, concluded that the two members did not have a disqualifying interest). 82 See A Olowofoyeku, ‘The Nemo Judex Rule: The case against automatic disqualification’ [2000] PL 456 for a careful critique of the decision in Pinochet and the problems with the law on presumed bias. See also K Malleson, ‘Judicial Bias and Disqualification after Pinochet (No 2)’ (2000) 63 MLR 119. Malleson suggests that presumed bias is unnecessary and that all cases presently considered under the presumed bias/automatic disqualification rule should be considered applying the apparent bias test. 83 See eg H Woolf, J Jowell and A Le Sueur, De Smith’s Judicial Review (6th edn, 2007), paras 10‐032‐036.


35


presumed bias rule has been abandoned and each case is now considered to

see whether the facts give rise to the appearance of bias.84 There is much to

be said for the Australian approach which would simplify the law on bias. The

Court of Appeal, in R (Kaur) v Institute of Legal Executives Appeal Tribunal,85

in obiter comments, indicated sympathy with such a view when it suggested

that there may not be two separate doctrines of promotion of a cause

presumed bias and apparent bias.86

28 The promotion of cause category of presumed bias does not appear to apply

to administrative decisions.87

Further categories of presumed bias?

29 Whilst some commentators88 have suggested that the Court of Appeal in

AWG Group Ltd v Morrison89 further extended the ambit of presumed bias to

include cases where the judge has a friendship with a witness, it is suggested

that this case is better analysed as a case of apparent bias. The Court of

Appeal in AWG did refer to automatic disqualification; however, it is clear

from both the context, and the case law relied upon, that the Court of

Appeal’s conclusion was that the factual circumstances gave rise to the

existence of apparent bias rather than a finding that the relationship was

such that the judge should be automatically disqualified. 90

84 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Aus HC, 351. The majority and dissenting judgments in Ebner set out the arguments for and against the retention of the ‘automatic disqualification’ or presumed bias. 85 [2011] EWCA Civ 1168, [2012] 1 All ER 1435. 86 Ibid, paras 44‐46 per Rix LJ. 87 Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin), para 87 per Ouseley J. 88 See eg H Woolf, J Jowell and A Le Sueur, De Smith’s Judicial Review (6th edn, 2007), para 10‐025, and J Maurici, ‘The Modern Law of Bias’ [2007] JR 251, para 45. 89 [2006] EWCA Civ 6, [2006] 1 WLR 1163. 90 [2006] EWCA Civ 6, [2006] 1 WLR 1163, paras 4‐9 per Mummery LJ. See also R (Bennion) v Chief Constable of Merseyside Police [2001] EWCA Civ 638, [2002] ICR 136 (The claimant unsuccessfully attempted to extend the ambit of presumed bias to cases where the decision‐maker, a Chief Constable hearing a disciplinary matter, was the named respondent in a discrimination claim brought by the police officer subject to the disciplinary action).

Consequences of presumed bias

30 If presumed bias is established, the decision‐maker is disqualified from

hearing the case, or making the decision, as the case may be,91 unless the

parties waive their right to object. If the decision has already been made it

will normally be quashed.92 If one member of the court or decision‐making

body is found to have such a disqualifying interest, this is likely to be

sufficient to vitiate the decision regardless of whether the other decision‐

makers are not so disqualified.93

D. Apparent Bias

Introduction

Scope of apparent bias

Matters that may give rise to the appearance of bias

31 Whilst presumed bias is mainly concerned with direct financial interests,

apparent bias is mainly concerned with non‐financial or personal interests.94

English courts have not sought to lay down precise categories of case when

the appearance of bias may arise. However, cases of apparent bias tend to

fall into four broad and overlapping categories:95

(a) disqualification as a result of personal interest, friendship or

enmity towards a party, witness or professional adviser;

(b) disqualification by conduct, including published statements, either

in the course of, or outside, the decision‐making process;

(c) disqualification by association;

91 Dimes v Grand Junction Canal (1852) 3 H.L. Cas. 759, HL, 793 per Lord Campbell; R v Rand (1866) LR 1 QB 230, DC, 232 per Blackburn J; Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366, CA, 384 per Bowen LJ; R v Gough [1993] AC 646, HL, 661 per Lord Goff. 92 R (Al‐Hasan) v Secretary of State for the Home Department [2005] UKHL 13, [2005] 1 WLR 688, paras 42‐44 per Lord Brown. Lord Brown’s comments relate to apparent bias however they are equally applicable to presumed bias. See Ch 29 for discussion of discretionary grounds for refusal of relief. 93 R v Hendon Rural District Council, ex p Chorley [1933] 2 KB 696, DC (Council decision quashed because one of the councillors disqualified as a result of financial interest). 94 The rule against apparent bias also applies to cases of indirect financial interests that fall outside the scope of presumed bias. 95 These four categories draw on Deane J’s judgement in Webb v R (1994) 181 CLR 41, Aus HC, 74.


37


(d) disqualification by extraneous information, where knowledge of

some prejudicial but inadmissible fact or circumstances gives rise

to the appearance of bias.

32 The apparent bias test is also applied to cases where it is alleged that the

decision‐maker is guilty of predetermination.

Predetermination and apparent bias

33 Predetermination and apparent bias are conceptually different. This

difference can be illustrated using the facts of R v Chesterfield BC, ex p Darker

Enterprises.96 A renewal of a sex shop licence was refused by a sub‐

committee of the council which had been chaired by a councillor known to be

strongly opposed to sex shops in general and to the applicant’s shop in

particular. The committee had also included a councillor who was a director

of the Co‐operative Society which owned the neighbouring retail premises

and which hoped to expand into the sex shop premises if its licence was not

renewed. The challenge to the chairman’s involvement concerned an

allegation of predetermination whilst the challenge to the other committee

member’s involvement concerned an allegation of personal interest that gave

rise to the appearance of bias.97

34 Whilst apparent bias and predetermination are conceptually different there

is potential for overlap. For example, adverse comments about a party by a

decision‐maker prior to the decision may be evidence of a personal enmity

towards a party and thus amount to personal interest bias or may be

96 [1992] COD 466, HC. The use of this example is taken from R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, HC, 321‐2 per Sedley J. 97 In Darker the challenge to the chairman on the grounds of predetermination was unsuccessful but the challenge to the decision concerning the councillor who was a director of the Co‐operative Society was successful.

evidence that the decision‐maker is not approaching the decision with the

required open mind and thus amount to predetermination.98

Nature of decision‐maker

35 Generally, the apparent bias test applies equally to judicial, quasi‐judicial and

administrative decision‐makers.99 A judge who had a friendship with a

witness should not hear the claim.100 Equally, a member of a planning

committee who had a friendship with an applicant for planning permission

must take no part in the consideration of the planning application.101

However, care has to be taken when applying decisions that relate to one

type of decision‐maker to another type of decision‐maker because context is

important.102

36 In relation to predetermination, the situation is more complex. Whilst judicial

decision‐makers must approach a matter with an open mind and be seen to

approach matters with an open mind, the approach taken to administrative

decision‐makers is considerably more flexible. Such decision‐makers may be

democratically elected and may have expressed very strong views on the

merits of proposals before they come to determine them because, for

example, their party may have a policy on the application or they may have

spoken out in favour or against them because the issue in question is party

political. Whilst such strong expressions of views by a judge would be very

likely to require recusal, requiring administrative decision‐makers to recuse

themselves in such circumstances is problematic because their

democratically elected role requires them to express views on such matters.

98 See eg El Farargy v El Farargy [2007] EWCA Civ 1149, [2007] 3 FCR 711 (Appellant’s allegation that a judge’s inappropriate and offensive comments demonstrated that he had a closed mind were rejected but the allegation that the same comments gave rise to the appearance of bias was accepted because they demonstrated to the fair‐minded observer that there was a real possibility that the judge would carry into his judgement the scorn and contempt that the comments conveyed). 99 R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, HC, 321 per Sedley J; R (Lewis) v Redcar and Cleveland BC [2008] EWCA Civ 746, [2009] 1 WLR 83, para 62 per Pill LJ. 100 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 25. 101 R (Gardner) v Harrogate BC [2008] EWHC 2942 (Admin), [2009] JPL 873. 102 Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117, The Times, 5 October 2005, para 29 per Scott Baker LJ.


39


Predetermination by administrative decision‐makers is therefore considered

separately.

Rationale for rule

37 The rationale for the rule against apparent bias is that justice must not just be

done but be seen to be done.103 It is therefore not sufficient that the

decision‐maker is not biased. He or she must also not be perceived to be

biased because such a perception undermines confidence in the

administration of justice and administrative decision‐making.104

The test for apparent bias

38 The relevant test for apparent bias was definitively set out by the House of

Lords in Porter v Magill.105 The question to be considered is whether the fair‐

minded and informed observer, having considered the facts, would conclude

that there was a real possibility that the decision‐maker was biased.106 The

decision in Porter v Magill brought English law broadly into line with that of

Canada, Australia and New Zealand as well as Scotland.107 It also meant that

there was no difference between the common law test of apparent bias and

the requirement of subjective impartiality contained in Article 6 (1) ECHR.108

39 The ‘real possibility’ test differs from the previous ‘real danger’ test

articulated in R v Gough109 in two ways. Firstly, the question is whether there

is a ‘real possibility’ of bias rather than a ‘real danger’ of bias.

Notwithstanding the view that there is no difference between these two

formulations110 it is suggested that the ‘real possibility’ connotes a slightly

103 Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, [2006] 1 WLR 781, para 23 per Lord Hope. 104 Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, [2006] 1 WLR 781, para 23 per Lord Hope. 105 [2001] UKHL 67, [2002] 2 AC 357. 106 Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, para 103 per Lord Hope. 107 Merrabux v Attorney General of Belize [2005] UKPC 12, [2005] 2 AC 513, para 22. 108 Lawal v Northern Spirit [2003] UKHL 35, [2004] 1 All ER 187, para 15 per Lord Steyn and R v Abdroikov [2007] UKHL 37, [2007] 1 WLR 2679, para 14 per Lord Bingham. 109 [1993] AC 646, HL. 110 In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, CA, para 85 per Phillips MR.

lower threshold than ‘real danger’. Secondly, the appearance of bias is to be

considered from the perspective of the ‘fair‐minded and informed observer’

rather than as previously, when it had been considered from the court’s

perspective.111

40 The ‘real possibility’ test involves a two stage process.112 First, the Court must

ascertain all the circumstances which had a bearing on the suggestion that

the decision‐maker was biased.113 This should be done with a degree of

precision.114 Secondly, the Court must consider whether those

circumstances would lead a fair‐minded and informed observer to conclude

that there was a real possibility that the decision‐maker was biased.115

The characteristics of the fair‐minded and informed observer

41 The fair‐minded and informed observer is a judicial construct116 and, like the

‘reasonable man’ so important to the law of negligence, a creature of

fiction.117 Individual members of the public who might justifiably claim that

they are fair‐minded and informed will have widely differing characteristics,

experience, attitudes and beliefs which could impact on issues relating to the

existence of apparent bias.118 It is therefore not surprising that judges

sometimes disagree as to the view of the fair‐minded and informed

observer.119

111 Man O’War Station Ltd v Auckland City Council [2002] UKPC 28, [2003] 1 LRC 598, para 10; R v Adroikov [2007] UKHL 37, [2007] 1 WLR 2678, para 81 per Lord Mance. The previous view, which considered matters from the court’s perspective, was contained in R v Gough [1993] AC 646, HL, 670 per Lord Goff. . 112 Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117, The Times, 5 October 2005, para 27 per Scott Baker LJ. 113 Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117, The Times, 5 October 2005, para 27 per Scott Baker LJ. 114 Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117, The Times, 5 October 2005, para 32 per Scott Baker LJ. See also National Assembly for Wales v Condron [2006] EWCA Civ 1573, [2007] LGR 87 paras 25‐6 per Richards LJ who expressly endorsed Scott Baker LJ’s comments on the need for precision. 115 Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117, The Times, 5 October 2005, para 27 per Scott Baker LJ. 116 R v Adroikov [2007] UKHL 37, [2007] 1 WLR 2678, para 81 per Lord Mance. 117 Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416, para 1 per Lord Hope. 118 R v Adroikov [2007] UKHL 37, [2007] 1 WLR 2678, para 81 per Lord Mance. 119 R v Adroikov [2007] UKHL 37, [2007] 1 WLR 2678, para 80 per Lord Mance who accurately characterised the 3:2 split between their Lordships as turning largely on different perceptions of the view that would be taken by a fair‐minded and informed observer.


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The fair‐minded observer

42 The fair‐minded observer does not take the complainant’s view but an

objective view.120 They take a balanced approach121 and always reserve

judgement on every point until they have seen and fully understood both

sides of the argument.122 They are not unduly sensitive or suspicious.123

However, neither are they naïve or complacent.124 The fair‐minded observer

knows that fairness requires that a decision‐maker must be, and must be

seen to be, unbiased. They know that decision‐makers, like anybody else,

have their weaknesses.125

43 The fair‐minded observer is not an insider (ie a member of the decision‐

making body) otherwise they would run the risk of having an insider’s

blindness.126 They are able to distinguish between what is relevant and

irrelevant and are able, when exercising his judgement, to decide what

weight should be given to the facts that are relevant.127

The informed observer

44 The informed observer has access to all the facts that are capable of being

known to the public generally.128 These facts are not limited to those known

by the complainant or even a hypothetical observer at the time of the

120 Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, para 104 per Lord Hope. 121 Lawal v Northern Spirit Ltd [2003] UKHL 35, [2004] 1 All ER 187, para 14 per Lord Steyn. 122 Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416, para 2 per Lord Hope. 123 Johnson v Johnson (2001) 201 CLR 488, Aus HC, 509 para 53 cited with approval by the House of Lords in Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416, para 2 per Lord Hope, para 14 per Lord Rodger and para 39 per Lord Walker. 124 Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 241, para 2 per Lord Hope. 125 Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416, para 2 per Lord Hope. 126 Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781, [2006] UKHL 2, para 39 per Lady Hale. 127 Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781, [2006] UKHL 2, para 17 per Lord Hope. 128 Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781, [2006] UKHL 2, para 17 per Lord Hope.

decision under challenge but include facts discovered subsequently as a

result of further investigation.129

45 The informed observer is aware of the relevant legal traditions and culture

but they are not wholly uncritical of such a culture.130 They do not have a

mastery of the minutiae of legal drafting.131

46 There has been a tendency to attribute knowledge of legal matters to the

fair‐minded and informed observer that has, to an extent, eroded the

difference between the Court’s perspective and that of the informed

observer.132 This approach contrasts with that taken in Australia where the

test is based on the ‘fair‐minded lay observer’ who is ‘not to be assumed to

have a detailed knowledge of the law.’133 Given the underlying rationale of

the rule against apparent bias, there is much to be said for the approach

advocated by the Court of Appeal in Locabail that ‘matters outside the ken of

the ordinary, reasonably well‐informed member of the public’ ought not be

relied upon134 otherwise the public may have a perception that the decision

in question is unfair even though the Court have concluded that the factual

circumstances do not give rise to an appearance of bias.135

Evidence from the decision‐maker

129 Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117, The Times, 5 October 2005, para 27 per Scott Baker LJ; Virdi v The Law Society of England and Wales [2010] EWCA Civ 100, [2010] 1 WLR 2840, paras 42‐49 per Stanley Burnton LJ; Belize Bank v Attorney‐General of Belize [2011] UKPC 36, paras 37‐39 per Lord Kerr. 130 Lawal v Northern Spirit Ltd [2003] UKHL 35, [2004] 1 All ER 187, para 22 per Lord Steyn. See also Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781, [2006] UKHL 2, at paras 39‐41 per Lord Hope (The fair‐minded and informed observer is aware of tribunal life); R (Pounder) v HM Coroner for the North and South Districts of Durham and Darlington [2010] EWHC 328 (Admin), para 29 per Burnett J (the fair‐minded and informed observer is aware of aspects of the coronial process including the fact that the Coroner sets the scope of the inquest and also decides which witnesses to call). 131 Davidson v Scottish Ministers [2004] UKHL 34, 2005 1 SC (HL) 7, para 8 per Lord Bingham. 132 See eg Taylor v Williamson [2002] EWCA Civ 1380. 133 Johnson v Johnson (2001) 201 CLR 488, Aus HC, paras 11‐13, per Gleeson CJ, Gaudron, HcHugh, Gummow and Hayne JJs. 134 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 17. 135 In Re P (A Barrister) [2005] 1 WLR 3019, Visitors to the Inns of Court, para 107 per Colman J for a discussion as to the extent of knowledge of the hypothetical observer and how it relates to the underlying rationale of the apparent bias rule.


43


47 A judge should not adduce evidence either detailing what was in their mind

at the time of the impugned decision or asserting that they were not biased.

Such evidence is unhelpful because what is in issue is whether the facts give

rise to an appearance of bias rather than what was in the mind of a particular

decision‐maker at the relevant time.136 As such, no weight should be

attached to such evidence.137

48 The position is less clear in relation to administrative decision‐makers

although the better view is that little or no weight should be placed on such

evidence.138

49 The decision‐maker may, however, adduce evidence as to whether he or she

was aware of the factual matters that gave rise to the allegation of apparent

bias.139 If the party alleging apparent bias accepts this evidence it can be

treated as accurate.140 If it is not accepted the court does not have to rule

whether it should be accepted or rejected but must consider whether there is

a real possibility of bias notwithstanding the explanation advanced.141

The judicial oath

50 The fact that judges take an oath of office is a relevant fact to be considered

by the fair‐minded and informed observer and the real possibility of bias

must be assessed in light of the oath to administer justice without fear or

136 Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, [2006] 1 WLR 781, para 17 per Lord Hope. 137 Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, para 104 per Lord Hope. 138 R (Georgiou) v London Borough of Enfield [2004] EWHC 799 (Admin), [2004] LGR 497, para 36 per Richards J (Court applied Porter v Magill and refused to place any significant weight on evidence from member of a planning committee as to whether they approached the matter with an open mind). See also R (Agnello) v London Borough of Hounslow [2003] EWHC 3112 (Admin), [2004] LGR 536, para 79 per Silber J (Refusal to take into account protestations of decision‐maker that he had acted fairly). Cf R (Island Farm Development Ltd) v Bridgend County Borough Council [2006] EWHC 2189 (Admin), [2007] LGR 60, para 30 per Collins J (doubting Richards J’s approach in Georgiou). See also R (Lewis) Redcar and Cleveland Borough Council [2008] EWCA Civ 746, [2009] 1 WLR 83, para 66 per Pill LJ who appeared to prefer the approach of Richards J in Georgiou disregarding such evidence. However, Pill LJ went on to state that “[a] series of statements from Council members saying that they had open minds would not inevitably conclude the issue.” This use of the word ‘inevitably’ tends to suggest that whilst such evidence is not conclusive it may be persuasive. 139 In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, para 86 per Phillips MR. 140 In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, para 86 per Phillips MR. 141 In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, para 86 per Phillips MR.

favour and the judge’s ability to carry out that oath by reason of their training

and experience.142 However, the taking of the oath is not, by itself, a

sufficient guarantee to exclude all legitimate doubt.143

Other relevant matters

51 The courts have considered, as part of the relevant facts known to the fair‐

minded and informed observer, the following matters:

(a) Training: In the context of administrative decision‐making,

some weight may be placed on the fact that the decision‐

makers have received relevant training and have agreed to

be bound by a code of conduct.144

(b) Conflict rules: The fact that a solicitor would be precluded

from acting for a party as a result of the Law Society’s

conflict rules would tend to indicate that that solicitor should

not hear the matter, although each case will depend on the

particular factual circumstances.145

(c) Decision‐maker’s profession: The qualifications of the

decision‐maker and that fact that they are a member of a

profession may be a factor that tends to indicate the lack of

an appearance of bias146 although this cannot, by itself, be

decisive as decisions by senior members of the judiciary, a

142 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 21 citing with approval comments made by the Constitutional Court of South Africa in President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147, 177. 143 Davidson v Scottish Ministers [2004] UKHL 34 , 2005 1 SC (HL) 7, para 18 per Lord Bingham. 144 National Assembly for Wales v Condron [2006] EWCA Civ 1573, [2007] LGR 87 para 53 per Richards LJ (Training and agreement to be bound by a Code of Conduct cited as factors that tended to indicate the lack of appearance of bias); See also R (Georgiou) v London Borough of Enfield [2004] EWHC 799 (Admin), [2004] LGR 497, para 34 per Richards J (Lack of training added to concern about decision). 145 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, CA, para 58. 146 R (Zoolife International Ltd) v The Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin), para 81 per Silber J (Qualified vet who was a member of a highly respected profession, whose members are subject to strict ethical and professional standards would suggest that she would act fairly and honourably).


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profession with the highest professional and ethical

standards have, with a degree of regularity, been quashed

on the grounds of apparent bias.

(d) Complaints: The existence, extent and nature of complaints

about a particular decision are likely to be of some relevance

to considering the views of the fair‐minded observer. Whilst

the fact that an aggrieved party complained about a decision

is unlikely to be of significant relevance, a number of

complaints by members of the public and persons concerned

is likely to carry considerable weight.147

(e) Ombudsman’s reports: Conclusions as to the existence of

bias by bodies such as the local government ombudsman,

whilst not decisive, are likely to be given considerable

weight.148

(f) Previous or subsequent recusal: The fact that the decision‐

maker has recused him or herself in relation to similar

decisions may also provide significant evidence that the

decision the individual did participate in is vitiated by

apparent bias.149

(g) Decision‐maker’s conduct in litigation: A coroner who hears

an inquest and lodges detailed grounds of resistance in a

judicial review resisting a challenge to his conduct of that

147 R (Gardner) v Harrogate Borough Council [2008] EWHC 2942 (Admin), [2009] JPL 873, para 32 per Sullivan J (A member of the public had complained to the Ombudsman and fellow councillors had expressed their concerns. There had also been a complaint to the Standards Board). See also R (Compton) v Wiltshire Primary Care Trust [2009] EWHC 1824 (Admin), [2010] PTSR (CS) 5, para 93 per Cranston J (Views of senior political leaders such as the local MP and Councillors given some weight). 148 R (Gardner) v Harrogate Borough Council [2008] EWHC 2942 (Admin), [2009] JPL 873, para 32 per Sullivan J. 149 R (Gardner) v Harrogate Borough Council [2008] EWHC 2942 (Admin), [2009] JPL 873, para 33 per Sullivan J.

inquest which commits him to a view on a disputed issue of

fact cannot hear the new inquest.150

Irrelevant matters

52 The quashing of a decision on the grounds of apparent bias leads to delay and

increased costs. It is therefore not sufficient for a party to show a possibility

of bias however fanciful. The possibility of bias must be ‘real’151 otherwise

valid decisions would be quashed which would undermine, rather than

enhance, public confidence in the decision‐making process. However, the

inconvenience, costs and delay that would be caused if the decision in

question was quashed are not relevant when applying the ‘real possibility’

test.152

Time

53 The greater the passage of time between the event relied upon as showing a

real possibility of bias and the case in which the objection is raised, the

weaker, other things being equal, the objection will be.153

Application to advisors

54 The apparent bias of advisors to the decision‐maker is also capable of

vitiating a decision.154 In such circumstances, the court must ask itself

whether the fair‐minded and informed observer would conclude, after

150 R (Pounder) v HM Coroner for the North and South Districts of Durham and Darlington [2010] EWHC 328 (Admin), paras 31‐2, per Burnett J. 151 Davidson v Scottish Ministers [2004] UKHL 34, 2005 1 SC (HL) 7, para 49 per Lord Hope. 152 AWG Group Ltd v Morrison [2006] EWCA Civ 6, [2006] 1 WLR 1163, para 6 per Mummery LJ. 153 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 25. See also Man O’War Station Ltd v Auckland City Council [2002] UKPC 28, [2003] 1 LRC 598 (The fact that the judge had not spoken to the witness for over 8 years since he became a judge tended to indicate that there was no appearance of bias). See also Howell v Millais [2007] EWCA Civ 720, para 26 per Clarke MR. 154 R v Gough [1993] AC 646, HL, 554 and 670 (Magistrate’s clerks); R (Compton) v Wiltshire Primary Care Trust [2009] EWHC 1824 (Admin), [2010] PTSR (CS) 5 (Consultants appointed to analyse the consultation responses. Cranston J rejected an argument that the principles articulated in Gough were limited to magistrate’s clerks); R (Primary Health Investment Properties Ltd) v The Secretary of State for Health and others [2009] EWHC 519 (Admin) (Consultants on valuation of ‘current market rent’); R (Persimmon Homes Ltd) v Vale of Glamorgan Council [2010] EWHC 535 (Admin) (Local authority officer’s advice in a report on planning matters). Cf R (Zoolife International Ltd) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin), para 79 per Silber J (Doubt expressed as to the applicability of the appearance of bias test to advisors).


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consideration of all the relevant circumstances, that the advisor’s

participation in the decision‐making process gave rise to a real possibility that

the decision would be infected by such participation.155

55 In considering whether there was a real possibility that the apparent bias of

the advisors has infected the decision‐maker, factors that are likely to be

relevant include the nature of the advice itself, the matter to which the

advice pertains and the relationship between the advisor and the decision‐

maker.156

Consequences of apparent bias

56 As a matter of principle, a finding of apparent bias should normally result in

the decision impugned being quashed regardless of whether there is any

evidence that the outcome would have been different but for the existence

of such bias.157 However, where one member of a multi‐person decision‐

making body is found to be tainted by apparent bias this may not be

sufficient to make the decision unlawful.158

155 R v Gough [1993] AC 646, HL, 554 and 670 per Lord Goff. The test set out in the text has been modified to take into account the House of Lords’ modification of the test in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357. Lord Goff reached his conclusions after considering two earlier authorities concerning appearance of bias relating to a magistrate’s clerk who advised the magistrates on points of law: R v Sussex Justices, ex p McCarthy [1924] 1 KB 256, DC and R v Camborne Justice, ex p Pearce [1955] 1 QB 41, DC. 156 R (Compton) v Wiltshire Primary Care Trust [2009] EWHC 1824 (Admin), [2010] PTSR (CS) 5, para 91 per Cranston J.

157 R (Al‐Hasan) v Secretary of State for the Home Department [2005] UKHL 13, [2005] 1 WLR 688, paras 42‐44 per Lord Brown. See Ch 29 for discussion of discretionary grounds for refusal of relief. 158 R (Berky) v Newport City Council [2012] EWCA Civ 378, paras 29‐30 per Carnwath LJ, para 46 per Moore‐Bick LJ doubting dicta to the contrary in R (Bovis Homes Ltd) v New Forest District Council [2002] EWHC 483 (Admin), paras 103‐5 per Ouseley J. See also In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, CA, para 99 (Court of Appeal concluded that because the disqualified tribunal member must have discussed the matter with the other two tribunal members they were also disqualified from hearing the matter). Cf R (Fraser) v National Institute for Health and Clinical Excellence [2009] EWHC 452 (Admin), (2009) 107 BMLR 178, para 110 per Simon J (Challenge to a recommendation of NICE on the basis that four individuals out a large group were tainted by apparent bias. Simon J stated, obiter, that the public interest might be such that even if the four individuals were so tainted the decision may not necessarily be quashed. It is suggested that this comment should be interpreted as reference to refusing to quash in the exercise of the Court’s discretion rather than an assertion that the decision in question would not have been unlawful, see paras XXX). See also ASM Shipping Ltd v Bruce Harris [2007] EWHC 1513 (Comm), The Times, 6 August 2007, paras 44‐6 per Andrew Smith J. See further, BAA Ltd v Competition Commission [2009] CAT 35, [2009] Comp AR 240 at paras 182‐199 and BAA Ltd v Competition [2010] EWCA Civ 1097, paras 32‐36 per Maurice Kay LJ.

57 Participation is not limited to voting or discussion and, in certain

circumstances, remaining with the other decision‐makers whilst they make

their mind up may be sufficient to taint the decision.159

Recusal procedure

58 The Court of Appeal has given the following guidance on appearance of bias

in the judicial context:

(a) if a party becomes aware of any matter that they think may give rise

to the appearance of bias, this should be raised informally, if possible,

with the judge, for example, by letter, making the complaint and

inviting the recusal;160

(b) if the judge considers the objection as being more than tenuous or

frivolous, the matter should be transferred, if possible, to another

judge to avoid the risk of a complaint of bias. This can be done

notwithstanding that the judge in question totally denies the

complaint;161

(c) if a transfer is not feasible, the recusal application should be

considered by another judge if possible;162

(d) Prior to such an application, the judge against whom the application is

made should seek to clarify what interest it is alleged gives rise to the

conflict so that he or she can make full disclosure to the parties. This

disclosure should be recorded so that there is no controversy as to

the nature of the disclosure.163

159 See R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, HC, 328‐9 per Sedley J. 160 El Farargy v El Farargy [2007] EWCA Civ 1149, [2007] 3 FCR 711, para 32 per Ward LJ. 161 El Farargy v El Farargy [2007] EWCA Civ 1149, [2007] 3 FCR 711, para 32 per Ward LJ; Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [2004] IRLR 218, para 35 (i). 162 El Farargy v El Farargy [2007] EWCA Civ 1149, [2007] 3 FCR 711, para 32 per Ward LJ. 163 Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [2004] IRLR 218, para 35(ii)‐(iv).


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59 A failure to object when a party becomes aware of matters that give rise to

an appearance of bias may lead to the right to complain being waived.164

Lawyer’s duty to advise on apparent bias

60 If an apparent bias issue arises, the party’s lawyer must explain the

implications of the situation including the implications of an adjournment.165

The party’s lawyer should advise their client about the judicial oath and

explain that judges are trained in considering cases objectively and

disregarding any personal views that they may hold.166 However, lawyers

should not express a view on the integrity of a particular judge or seek to

influence the decision taken by the client.167

Matters which may give rise to the existence of apparent bias

61 The Court of Appeal has cautioned against excessive citation of authority

when considering the essentially factual question of whether a fair‐minded

and informed observer would think that, considering the relevant

circumstances, there was a real possibility that the decision‐maker was

biased because there is a danger that such citation may cloud rather than

clarify perception.168 Whilst this cautionary note must not be forgotten it is

still of benefit to consider previous case law in relation to various matters,

situations or relationships that have or have not give rise to the appearance

of bias.

Background and characteristics of the decision‐maker

164 See paras XXX. See Adamson v Swansea University [2010] UKEAT 0486_09_2302 (EAT found waiver as a result of disclosure in accordance with the Court of Appeal’s guidance in Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [2004] IRLR 218). 165 Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242, [2007] 1 WLR 370, paras 33‐37. 166 Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242, [2007] 1 WLR 370, paras 33‐37. 167 Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242, [2007] 1 WLR 370, paras 33‐37. 168 R (PD) v West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311, [2004] 1 MHLR 311, paras 8‐9. Cf Lawal v Northern Spirit Ltd [2003] UKHL 35, [2004] 1 All ER 187, para 15 per Lord Steyn who suggested that the consideration of analogous situations may arguably throw light on the problem.

62 The Court of Appeal in Locabail suggested that, whilst everything will depend

on the facts, it was unlikely that an objection could be based on religion,

ethnic or national origin, gender, age, class, means or sexual orientation of

the decision‐maker.169 Ordinarily, no objection could be based on the

decision‐maker’s social or educational or service or employment background

or history or that of any member of their family.170 Further the fact that a

decision‐maker has a particular disability does not, by itself, prevent them

from considering matters relating to such a disability.171

Membership of organisations

63 Without more, no objection to a decision‐maker can be based on previous

political associations or membership of social or sporting or charitable

bodies172 or Masonic associations.173 The fact that a judge was a member of

the International Association of Jewish Lawyers and Jurists and received its

journal which sometimes contained extreme pro‐Israeli views did not

preclude her from considering Palestinian asylum claims as she had at no

point endorsed such views or identified herself with them.174 There was no

169 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 25. The Court of Appeal in Locabail was applying the real danger test in R v Gough [1993] AC 646, HL, however, it is likely that these observations apply with equal force notwithstanding the fact that the current test requires consideration of whether a fair‐minded and informed observer would conclude that there was a real possibility of bias. See also Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416, para 13 per Lord Rodger (Lady Cosgrove, a prominent Jewish judge dismissed an application for review brought by a Palestinian asylum seeker. There was no suggestion was made that the mere fact that Lady Cosgrove was Jewish meant that there was an appearance of bias). 170 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 25. 171 See Baker v Quantum Clothing Group [2009] EWCA Civ 566, paras 33‐34 per Jacob LJ (Sedley LJ’s mild tinnitus did not prevent him from hearing an appeal relating to noise‐induced deafness in the textile industry). 172 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 25. Of course, the situation may be different if the sporting or charitable organisation is a party to the hearing, see eg eg R v Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, HL (Amnesty International intervened in case before Lord Hoffmann who was a director of an organization closely associated with Amnesty International. See paras XXX for a discussion of this judgement). 173 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 25. See also R (Port Regis School Limited) v North Dorset District Council [2006] EWHC 742 (Admin) (Two councillors who were freemasons considered a planning application which benefited a Masonic lodge. Newman J concluded that there was no appearance of bias. The result may have been different if the councillors had been members of the particular lodge in question that benefited from the planning application). 174 Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416. In addition to the lack of association with the views the House of Lords placed weight on the fact that, she had sworn a judicial oath and by virtue of the office for which she has been selected, the judge was likely to be intelligent.


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requirement for her to actively disassociate herself with the views contained

in a journal that she received.175

64 In the local authority context, membership of various internal council

committees is unlikely to give rise to the appearance of bias176 although

membership of external bodies which have supported a particular proposal

may give rise to the appearance of bias.177

Personal relationship with one of the parties

65 If a judge has a personal friendship, family relationship or close acquaintance

with either of the parties or any member of the public involved in the case

such as a witness, this is likely to give risk to a finding of apparent bias.178 The

fact that a witness who is known to the judge steps down does not prevent

the appearance of bias arising.179

66 Similarly, a councillor who shared transport with a fellow councillor of the

same political group to and from council meetings and saw her socially on a

relatively frequent basis should not have considered her application for

175 Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416, para 55 per Lord Mance. 176 R (Cummins) v London Borough of Camden [2001] EWHC 1116 (Admin), paras 260‐263 per Ouseley J (Membership of Leisure and Community Servicers Committee who were effectively promoting a development on land owned by the Council did not preclude participation in the decision whether or not to grant planning permission). Cf Georgiou v Enfield London Borough Council [2004] EWHC 799 (Admin), [2004] LGR 497, paras 28‐34, 39 per Richards J (A councillor was a member of the Conservation Advisory Committee, an advisory body that had expressed unqualified support for a proposal. The councillor subsequently participated in the decision to grant planning permission to that proposal. Richards J concluded that the dual membership did give rise to the appearance of bias). The Court of Appeal in R (Lewis)v Redcar and Cleveland Borough Council [2008] EWCA Civ 746, [2009] 1 WLR 83 concluded that there was no basis for suggesting that a member of the Executive who signed the heads of agreement in relation to a planning application could not also be a member of the planning committee. The Court of Appeal’s approach in Lewis is closer to that of Ouseley J in Cummins that Richards J in Georgiou however, the Court of Appeal refused the Appellant’s invitation to overrule Georgiou. 177 Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin) (Councillor on planning committee was also a member of the New Forest Committee (NFC), a non‐statutory body which drew its membership from various councils, the Forestry Commission and the Countryside Agency. The NFC had expressed a view on the matter to be considered by the committee and this, the court concluded, did give rise to an appearance of bias). 178 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 25. 179 AWG Group v Morrison [2006] EWCA Civ 6, [2006] 1 WLR 1163, para 26‐28 per Mummery LJ.

planning permission notwithstanding the fact that their relationship was not

sufficiently close to be described as a friendship.180

Professional relationship with one of the parties

67 A past professional relationship between a decision‐maker and a witness or

party is unlikely to give rise to the appearance of bias although it will depend

on the particular facts of the case and the closeness of relationship.181

Equally, a professional relationship between the decision‐maker’s partner

and one of the parties is unlikely to give rise to the appearance of bias.182

However, an ongoing professional relationship between the decision‐maker

and a party may well give rise to the appearance of bias.183

68 A medical member of a disability appeal tribunal who had, for a number of

years, provided reports on behalf of the Benefits Agency as an examining

medical practitioner, was able to consider appeals against the Benefits

Agency’s refusal to award benefits because there was no basis for suggesting

that she would not fairly evaluate reports by other examining medical

practitioners.184 The fair‐minded observer would appreciate that her

professional detachment and her ability to exercise medical judgement on

medical issues lay at the heart of her relationship with the Benefits Agency.

180 R (Gardner) v Harrogate BC [2008] EWHC 2942 (Admin), [2009] JPL 873. See also R (Compton) v Wiltshire Primary Care Trust [2009] EWHC 1824 (Admin), [2010] PTSR (CS) 5 (Personal relationship between decision‐maker and advisor did not give rise to apparent bias on the facts of the case). 181 Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, The Times, 5 October 2005, paras 46‐51 (Inquisitorial disciplinary hearing into allegations of greyhound doping). See also Man O’War Station Ltd v Auckland City Council [2002] UKPC 28, [2003] 1 LRC 598 (Judge had a professional acquaintance with one of the party’s principal witnesses although he had not spoken to him since he became a judge some 8 years prior to the appeal in question. The Privy Council concluded that the facts did not give rise to an appearance of bias). See also Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA (In one of the five joined cases an Industrial Tribunal chair had some 30 years ago worked for the Inland Revenue, one of the parties to the case. The Court of Appeal concluded that it was fanciful to suggest such a previous employment so long ago would give rise to the appearance of bias). 182 Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [2004] IRLR 218 (The husband of an Employment Tribunal’s chair had occasionally been instructed by one of the parties. This did not give rise to an appearance of bias). 183 Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242, [2007] 1 WLR 370, paras 15‐16 and 20‐21 (Part‐time judge had acted and continued to act for companies in the same group as one of the parties. It was conceded that, absent waiver, the judge should have recused himself). 184 Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, [2006] 1 WLR 781. See also R (PD) v West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311, [2004] 1 MHLR 311 (No apparent bias arising from the fact that a member of a Mental Health Review Tribunal was employed as a consultant by the Mental Health Trust responsible for the area in which the patient in question was detained).


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69 However, the fact that a lay member of a tribunal is seeking or has sought

employment with a firm, a director of which is one of the principle expert

witnesses in a case, was sufficient to give rise to the appearance of bias.185

Personal relationship with one of the parties’ lawyers

70 A personal relationship between the decision‐maker and one of the parties’

lawyers is unlikely to give rise to an appearance of bias. Barristers regularly

appear in front of colleagues or former colleagues, some of whom will be

sufficiently close to be regarded as friends, however this is not generally

objectionable.186

Professional relationship with one of the party’s lawyers

71 The fact that the decision‐maker is a member of the same Inn, circuit, local

Law Society or Chambers as one of the advocates is not likely, by itself, to

give rise to an appearance of bias.187 The fact that the decision‐maker has

worked for one of the parties a long time ago does not, by itself, give rise to

the appearance of bias.188 Equally, the fact that a decision‐maker had, when

working as a solicitor, occasionally instructed one of the counsel appearing

before him does not give rise to an appearance of bias.189 A tenuous

185 In Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, CA. See also Howell v Millais [2007] EWCA Civ 720 (The judge, Peter Smith J, had been in discussions to work as a consultant for a solicitors firm. These discussions had broken down acrimoniously. The solicitors firm was representing trustees and a partner of the firm was a party to the litigation as a trustee of the settlements. The Court of Appeal concluded that, in such circumstances, Peter Smith J should have recused himself). 186 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 25. 187 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 25. See also Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, paras 61‐3 and Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113, HC (No appearance of bias when arbitrator was a barrister from the same set of chambers as one of the counsel instructed in the arbitration). The position may be different if the decision in question might have a significant impact on chambers finances because, for example, counsel is acting under a CFA and thus the decision‐maker’s financial contributions to chambers, see Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242, [2007] 1 WLR 370, paras 17‐19. 188 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA (In one of the five joined cases the Industrial Tribunal Chairman had worked for the Inland Revenue, one of the parties to the case, 30 years previously).

189 See G Williams v Cater Link Ltd [2009] UKEAT 0393_08_2307, para 20 per McMullen J (The EAT indicated that if the professional relationship was extensive, lengthy, recent and/or ongoing different considerations might apply).

connection between a decision‐maker and a firm of solicitors representing a

party also does not give rise to the appearance of bias.190

72 However, an appearance of bias will arise if a lawyer appearing before a

tribunal has, in the past, sat with one or more of the lay members of that

tribunal in a judicial capacity.191 In such circumstances, there is a risk that the

lay members of the tribunal may be subconsciously biased in favour of that

counsel’s submissions given the relationship of trust and confidence that is

likely to have developed between the lay member and the counsel.192

Hostility towards a party or a witness

73 If a judge is hostile towards one of the parties or an administrative decision‐

maker is hostile to someone involved in the decision this is also likely to be

sufficient to disqualify them from considering the matter.193 This is

particularly true if the credibility of that individual is important.194

74 Evidence of such hostility often arises from comments made by the decision‐

maker prior to, or during, the hearing or in the decision Examples of

comments or behaviour that have given rise to the appearance of bias

include:

(a) Coroner describing members of victims’ families as ‘unhinged and

mentally unwell’;195

(b) racially offensive jokes about a Sheikh in matrimonial proceedings.196

190 See Baker v Quantum Clothing Group [2009] EWCA Civ 566 (Indirect link between Sedley LJ and solicitors for a party through connection with the British Tinnitus Association). 191 Lawal v Northern Spirit Ltd [2003] UKHL 35, [2004] 1 All ER 187 (Appearance before the Employment Appeal Tribunal by counsel who sat as a part‐time judge in the Employment Appeal Tribunal). 192 Lawal v Northern Spirit Ltd [2003] UKHL 35, [2004] 1 All ER 187, para 21. 193 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 25. 194 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 25. 195 R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 138, CA. 196 El Farargy v El Farargy [2007] EWCA Civ 1149, [2007] 3 FCR 711.


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75 Examples of comments or behaviour which did not give rise to the appearance of

bias include:

(a) unusually robust and emotive language in a judgment finding that a

bank was guilty of unfair dismissal;197

(b) aggressive questioning by tribunal members;198

(c) a vituperative exchange between a tribunal chairman and counsel;199

(d) the suggestion by the chairman of the Parole Board that he was

sceptical that that the prisoner would be honest with his

supervisors.200

Indirect financial interests

76 If the decision‐maker has a direct financial interest this gives rise to the

presumed bias, and absent waiver, the decision‐maker is disqualified. If,

however, the decision‐maker’s financial interest is indirect such an interest

must be considered applying the test for apparent bias.201 Indirect financial

interests are unlikely to give rise to the appearance of bias unless they are

particularly significant.202

Inappropriate contact with parties

77 Decision‐makers, particularly those acting in a judicial capacity, should take

care to avoid inappropriate contact with one of the parties in the absence of

the other party. Conversations between a judge and counsel for one of the

197 Royal Bank of Scotland Group Plc v Wilson [2009] UKEAT 0363_08_2406. 198 Docherty v Strathkelvin District Council 1994 SC 395, EAT. 199 Egerton v Rentokill Initial Management Services Ltd (EAT/141/99, 22 January 1999) 200 R (Bates) v Parole Board [2008] EWHC 2653 (Admin). 201 See R v Secretary of State for the Environment, ex p Kirkstall Valley [1996] 3 All ER 304, HC, 334‐335 per Sedley J. 202 See eg Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [2004] IRLR 218 (Husband of tribunal chair received some work from one of the parties. No appearance of bias); R v Holderness Borough Council, ex p James Robert Developments Ltd [1993] 1 PLR 108, CA, 120‐121 per Butler‐Sloss LJ, 111‐2 per Simon Brown LJ (Councillor who was a builder entitled to sit on planning committee considering applications by rival builders. No appearance of bias). See also R v Bristol Betting and Gaming Licensing Committee, ex p O’Callaghan (one of the Locabail appeals) [2000] 1 QB 451, CA (Judge held shares and was a non‐executive director in a family company who were landlords to a bookmaker. The renewal of the bookmaker’s licence was being challenged by way of judicial review. No apparent bias given the nominal and indirect interest).

parties, in the absence of the other party, are likely to give rise to the

appearance of bias particularly if the other party is not legally represented.203

78 On the other side of the line is Thompson v Collins204 where the allegation of

apparent bias arose from a short telephone conversation between one of the

parties’ solicitors and the judge concerning case management. The contents

of the conversation were referred to the other side. In such circumstances,

the Court of Appeal concluded that there was no basis for suggesting that

there was an appearance of bias.205

Prejudicial Publicity

79 If the decision‐maker sees prejudicial information in the media that was

inadmissible before them, this may give rise to the appearance of bias

although it will depend on the circumstances including the nature of the

information and the expertise of the decision‐making body.206

Judicial and quasi‐judicial decision‐makers: Prior involvement in the case

80 Prior consideration of a case does not, by itself, disqualify a judge from

considering the matter at a later stage.207 Something more is required.208 If,

for example, the judge has reached a strong view as to the credibility of one

203 See Gill v Humanware Europe Limited [2009] UKEAT 0312_08_2702, paras 21‐27 (Employment Tribunal chair had two conversations with the Respondent’s counsel in the absence of the Claimant who was unrepresented. One conversation related to the Chair’s views as to the centrality of a particular witness. The second conversation concerned the Respondent’s counsel seeking to provide an explanation for some of the evidence given by a Respondent’s witness. The EAT concluded that each incident by itself was sufficient to give rise to the appearance of bias). 204 [2009] EWCA Civ 525. 205 Ibid at paras 32‐37. Ward LJ described the conversation as “regrettable” and “unfortunate” but concluded, in light of the circumstances of the case, that the allegation of apparent bias was “frankly nonsense”. 206 See R (Mahfouz) v Professional Conduct Committee of the General Medical Council [2004] EWCA Civ 233, 80 BMLR 113 (Court of Appeal rejected an apparent bias argument arising out of fact that some members of the disciplinary tribunal had seen newspaper articles that referred to previous misconduct by the doctor a considerable time ago). 207 See Amec Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWCA Civ 1418, [2005] 1 All ER 723, para 20 per Dyson LJ. Sengupta v Holmes [2002] EWCA Civ 1104, The Times, 19 August 2002, paras 35‐36 per Laws LJ. See also Secretary of State for the Home Department v AF (No 2) [2008] EWCA Civ 117, [2008] 1 WLR 2528 (Judge who previously considered whether there was sufficient evidence to justify a control order was able to consider a further application contesting the control order). 208 Amec Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWCA Civ 1418, [2005] 1 All ER 723, para 20 per Dyson LJ.


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of the parties or key witnesses this is likely to be sufficient to disqualify the

judge from reconsidering the matter.209

81 The fact that a Lord Justice refused permission to appeal on the papers does

not, without more, give rise to the existence of apparent bias preventing

them from considering the substantive appeal.210 However, if the judge, in

refusing permission, expresses themselves in an intemperate manner this

may be sufficient to disqualify them.211 A similar approach, it is suggested,

would apply to judges in the Administrative Court who have refused

permission to apply for judicial review on the papers.212

82 Whilst prior judicial involvement is usually unlikely to be objectionable, if the

judicial decision‐maker has had previous involvement in the case in a

different capacity this is likely to be problematic and may well give rise to the

appearance of bias. Thus, a governor, who was present when an order for a

squat search of all prisoners was made by a different governor, should not

have heard a subsequent disciplinary hearing where one of the issues was

the legality of the order because, by his presence, he gave the order tacit

assent and endorsement.213 The governor’s decision that the order was

lawful was therefore quashed on the grounds of apparent bias.

83 The prior involvement in decisions by administrative decision‐makers is dealt

with below in the context of predetermination.

209 See eg Ealing London Borough Council v Jan [2002] EWCA Civ 329 (Court of Appeal decided the matter should not be remitted to the same judge for a retrial because he said of the respondent at a preliminary hearing that he could not trust him ‘further than he could throw him’). 210 See Sengupta v Holmes [2002] EWCA Civ 1104, The Times, 19 August 2002; See also DŵrDwr Cymru Cyfyngedig v Albion Water [2008] EWCA Civ 97 (Court of Appeal concluded that Richards LJ could sit notwithstanding the fact that when he refused permission on the papers he gave a fully reasoned judgement refusing permission which indicated that he had already considered the issues with a ‘great deal of care and attention’). 211 See Sengupta v Holmes [2002] EWCA Civ 1104, The Times, 19 August 2002, para 34 per Laws LJ. 212 See Sengupta v Holmes [2002] EWCA Civ 1104, The Times, 19 August 2002, para 3 per Laws LJ. 213 See R (Al‐Hasan) v Secretary of State for the Home Department [2005] UKHL 13, [2005] 1 WLR 688, para 39 per Lord Brown.

Judicial and quasi‐judicial decision‐makers: Prior expression of views

84 The Court of Appeal in Locabail suggested that, whilst everything will depend

on the facts, a previous expression of views either in judicial decisions or

extra‐curricular utterances (whether in textbooks, lectures, speeches,

articles, interviews, Law Commission reports or responses to consultation

papers) would not give rise to the existence of apparent bias unless the

expression of such views is in extreme and unbalanced terms.214 In Locabail

itself, one of the cases concerned a member of the Bar and part‐time judge

who heard a personal injury claim and who had written various pro‐claimant

articles in the personal injury field. The Court of Appeal concluded that the

tone and trenchant nature of the comments in these articles was sufficient to

give rise to the appearance of bias.215

85 The mere fact that a judge has expressed a previous judicial opinion on a

matter is not sufficient to establish apparent bias because judges can be

expected, upon hearing fresh argument applied to new facts in a later case,

to revise an opinion expressed in an earlier case.216 Equally, the fact that a

judge has, as counsel, previously given an opinion on a point of law is unlikely

to be sufficient to establish the existence of apparent bias.217

86 Whilst it is permissible for a judge to give an indication of his preliminary

views prior to hearing one party’s evidence, he must not close his mind to

such evidence or give the appearance that he has closed his mind.218

214 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 25. See also R (Al‐Hasan) v Secretary of State for the Home Department [2005] UKHL 13, [2005] 1 WLR 688, paras 9‐10 per Lord Rodger. 215 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, paras 71‐89. See also Peninsula Business Services Ltd v Rees [2009] UKEAT 0333_08_2307 (Part time Employment Judge was a member of a small firm of solicitors that had placed an advertisement denigrating employment law consultants. The Appellant was a large employment consultant. Decision set aside because of the appearance of bias). 216 See Davidson v Scottish Ministers [2004] UKHL 34, 2005 1 SC (HL) 7, para 10 per Lord Bingham. See also R (Al‐Hasan) v Secretary of State for the Home Department [2005] UKHL 13, [2005] 1 WLR 688, para 10 per Lord Rodger where examples of cases where judges have overruled their own previous decisions are given. 217 See Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300, Aus HC, para 24. 218 See Amjad and others v Steadman‐Byrne Practice Note [2007] EWCA Civ 625, [2007] 1 WLR 2484, para 10‐14 (The judge’s statement that he could not see, in light of the claimant’s evidence how the defendant could win together with a criticism by the judge of the defendant, a police officer, who had not yet given evidence but who, according to the judge, demonstrated rigid thinking typical of members of the police force did give rise to the appearance of bias).


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87 Where an auditor called a press conference to inform the public of his

“provisional conclusions” in his investigation into alleged misconduct by

councillors, the expression of such provisional conclusions did not

demonstrate the appearance of bias.219

88 The prior expression of views by administrative decision‐makers is dealt with

below in the context of predetermination.220

Judicial and quasi‐judicial decision‐makers: Previous political involvement

89 The European Court of Human Rights has held that where a judge has

exercised a prior legislative, executive or advisory function in respect of the

subject‐matter or legal issues before him, they should not hear such a case

because they are not sufficiently impartial.221 Applying this to the domestic

law context, the mere fact that a judge had previously been a Member of

Parliament or a Minister, is not sufficient, by itself, to give rise to the

appearance of bias if the judge is subsequently asked to rule on legislation

that was enacted during his or her time in Parliament or Government.222

What is required is a nexus between the issue before the court and the role

of the judge while they were a Minster or Member of Parliament.223 The

appearance of bias is likely to arise where a judge is called upon to rule

judicially on the effect of legislation which he or she has drafted or promoted

219 See Porter v Magill [2001] UKHL 67, [2002] 2 AC 357. The House of Lords, when reaching this conclusion, took into account the fact that the auditor had emphasised that his findings were provisional and that a public statement was appropriate in light of the level of public interest. Further, the auditor’s subsequent conduct also indicated that he was acting properly. 220 See paras XXX. 221 See Pabla Ky v Finland (2004) 42 EHRR 34, para 34. This paragraph has been cited with approval by the House of Lords in R (Al‐Hasan) v Secretary of State for the Home Department [2005] UKHL 12, [2005] 1 WLR 688, paras 35‐36 per Lord Brown. See also Procola v Luxembourg (1995) 12 EHRR 193 and McGonnell v United Kingdom (2000) 30 EHRR 289. 222 See R (Ewing) v Secretary of State for Justice [2008] EWHC 3416 (Admin), paras 30‐31 per Beatson J. 223 See R (Ewing) v Secretary of State for Justice [2008] EWHC 3416 (Admin), para 32 per Beatson J. See also Piersack v Belgium (1982) 5 EHRR 169.

during the parliamentary process.224 Equally, if a judge has, in the past,

expressed a view on an issue that arises in a case before them in their

previous ministerial or parliamentary capacity this may well be sufficient to

give rise to the appearance of bias provided that there is a sufficiently close

relationship between the previous words or conduct and the issue before the

Court or tribunal.225

E. Predetermination in administrative decision‐making

Introduction

90 Whilst it is imperative that judges are both impartial and perceived to be

impartial, administrative decision‐makers, particularly those who have been

democratically elected, are in a different position. Administrative decision‐

makers must not have a personal or pecuniary interest in the matter being

considered however, in contrast to judges, they are permitted to have

expressed strong views in relation to matters that they are to consider and be

predisposed, sometimes strongly, in favour of, or against, a particular

decision. The decision‐making structure, the nature of the functions and the

democratic political accountability of some administrative decision‐makers

permit predisposition towards a particular decision.

91 An administrative decision‐maker’s predisposition may arise for a number of

reasons. It may arise as a result of policies adopted by the decision‐maker’s

political party or government.226 However, predisposition is not limited to the

224 See Davidson v Scottish Ministers [2004] UKHL 34 , 2005 1 SC (HL) 7, para 17 per Lord Bingham. Lord Bingham thought that there was a risk that the judge might subconsciously strive to avoid reaching a conclusion that would undermine the assurances that he had given to Parliament. 225 See Davidson v Scottish Ministers [2004] UKHL 34, 2005 1 SC (HL) 7, para 53 per Lord Hope. Cf Panton v Minister of Finance [2001] UKPC 33 (President of the Court of Appeal of Jamaica heard a case where a party alleged that certain provisions of the Finance Act 1992 were unconstitutional. The President of the Court of Appeal had, at the time the Finance Act 1992 was passed, been the Attorney‐General and had certified that the Act was constitutional. Notwithstanding this, the Privy Council concluded that the circumstances did not give rise to an appearance of bias because there was no evidence that, when he was Attorney‐General, he had applied his mind to the issue of the constitutionality of the various sections in issue). 226 See eg R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746, [2009] 1 WLR 83.


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application of party or government policy. Predisposition can also arise as a

result of strongly held personal views. For example, a councillor may be

strongly opposed, as a result of his personal moral views, to sex shops.227

92 Whilst administrative decision‐makers are permitted to be predisposed for or

against a particular decision, what is not permitted is predetermination of the

decision in question in the sense that the decision‐maker has made up his or

her mind early or refused to consider the matter on its merits. It is the court’s

role to draw the line between legitimate predisposition and illegitimate

predetermination.

The common law test to be applied

93 There have been two conflicting lines of judicial authority on the correct

approach to allegations that administrative decision‐makers have

predetermined decisions.228 One line of authority suggested that the test to

be applied is whether the administrative decision‐maker did in fact

predetermine the issue because of the adoption of an inflexible policy or by

effective surrender of the body’s independent judgment.229 A second line of

authority suggested that the test was whether there was an appearance of

predetermination. Under this line of authority the question that the court

needed to consider was whether a fair‐minded and informed observer,

having been appraised of all the relevant facts, would have considered that

there was a real possibility of predetermination.230

227 This example is taken from the R v Chesterfield Borough Council, ex p Darker Enterprises Ltd [1992] COD 466, HC. 228 R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746, [2009] 1 WLR 83, para 93 per Rix LJ. 229 See R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, HC, 319 per Sedley J; R (Cummins) v London Borough of Camden [2001] EWHC 1116 (Admin); Bovis Homes v New Forest District Council [2002] EWHC 483 (Admin); R (Island Farm Development Ltd) v Bridgend County Borough Council [2006] EWHC 2189 (Admin), [2007] LGR 60, paras 30‐32 per Collins J (Planning application considered, inter alia, by councillor who had been a member of a pressure group opposing the development). 230 See R (Reading Borough Council) ex p Quietlynn Ltd [1986] 85 LGR 387; Georgiou v Enfield London Borough Council [2004] EWHC 799 (Admin), [2004] LGR 497, paras 30‐31 per Richards J (Application for listed building consent and planning permission. One of members of planning committee was also a member of the Council’s conservation advisory group which had expressed unqualified support for the proposals. The decision was quashed); Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 (Auditor published preliminary findings. The decision‐maker in Porter was more quasi‐judicial that administrative in nature); National Assembly for Wales v Condron

94 The Court of Appeal in R (Lewis) v Redcar and Cleveland BC231 resolved this

issue, at least for the time‐being, in favour of the second line of authority.

Thus, the task for a court, when considering whether an administrative

decision‐maker has impermissibly predetermined an issue, is to consider

whether a fair‐minded and informed observer, knowing the facts, would

think that there was a real possibility that the decision‐maker did not

approach the matter with an open mind.

95 The Court of Appeal in Lewis made it clear however that, notwithstanding the

fact that the test to be applied concerned the appearance of

predetermination, the test would be very difficult to satisfy.232 In relation to

the planning application in issue in Lewis, the Court of Appeal concluded that

the following matters did not provide evidence of predetermination:

(a) the fact that a planning application was promoted by the

council on council‐owned land;

(b) the council’s pecuniary interest in the grant of permission;

(c) the fact that councillors on the planning committee had

previously expressed support for the scheme;

(d) the fact that a member of the planning committee had also

been a member of the cabinet that had previously signed

heads of agreement with a developer and made forceful public

statements in support of the project;

[2006] EWCA Civ 1573, [2007] LGR 87 (Planning application. Committee member alleged to have said, prior to meeting that he was going to “go with the inspector’s report”. The Court of Appeal concluded that this comment did not give rise to an appearance of predetermination). 231 [2008] EWCA Civ 746, [2009] 1 WLR 83. This case is sometimes incorrectly referred to as Persimmon Homes Teesside Ltd v R (Lewis). 232 [2008] EWCA Civ 746, [2009] 1 WLR 83, para 109 per Longmore LJ. Subsequent predetermination challenges applying Lewis have usually been unsuccessful, see eg R (Batey) v Boston BC [2008] EWHC 3516 (Admin) (Unsuccessful challenge to grant of planning permission); R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2009] EWHC 134 (Admin), [2009] JPL 1354 (Claimant’s challenge to grant of planning permission on the grounds of predetermination arising from, inter alia, an earlier ‘in principle’ decision to exercise Council’s Compulsory Purchase Order powers in Tesco’s favour. Insufficient to establish predetermination); R (Chandler) v LB of Camden [2009] EWHC 219 (Admin), [2009] LGR 417 (Unsuccessful challenge to establishment of an academy. No evidence that councillors had closed minds); R (Persimmon Homes Ltd) v Vale of Glamorgan Council [2010] EWHC 535 (Admin) (Allegation that council’s officers, in drafting a report predetermined issues. Challenge rejected on the basis that there was insufficient evidence to demonstrate that officer’s minds were closed.)


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(e) the fact that the development was a party political issue or the

fact that councillors voted on party lines.233

96 Unfortunately, the precise ratio of the Court of Appeal’s decision in Lewis is

difficult to ascertain. All three Lord Justices gave separate judgements, each

adopting a slightly different analysis. There is some suggestion that rather

than considering the appearance of predetermination from the perspective

of the fair‐minded and informed observer the relevant perspective is that of

the Court,234 thus returning to the discredited approach of R v Gough235.

However, the better view is that it must be the appearance to the fair‐

minded and informed observer.236 Equally, whilst all three judgments

concluded that the test was the appearance of predetermination, there was

some suggestion that the importance of appearance was more limited than

in the judicial context although it is not entirely clear how one can apply the

fair‐minded and informed observer test partially or less robustly.237

Section 25 Localism Act 2011

97 Section 25 of the Localism Act 2011 seeks to clarify the common law on

unlawful predetermination in relation to certain decision makers by seeking

to highlight the distinction between a closed and an empty mind.

98 Section 25 (2) provides that a decision‐maker is not to be taken to have had,

or to have appeared to have had, a closed mind when making a decision just

because:

233 See R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746, [2009] 1 WLR 83, para 61 per Pill LJ who stated that the only possible evidence in support of the predetermination allegation was the holding of the planning committee during the pre‐election purdah period. However, the Court of Appeal went on to conclude that this did not give rise to the appearance of predetermination. 234 [2008] EWCA Civ 746, [2009] 1 WLR 83, paras 67‐71 per Pill LJ. 235 [1993] AC 646, HL. 236 [2008] EWCA Civ 746, [2009] 1 WLR 83, para 97 per Rix LJ. Longmore LJ added his own comments albeit he did not expressly address this issue. Longmore LJ however agreed with both Rix LJ’s and Pill LJ’s judgments. 237 [2008] EWCA Civ 746, [2009] 1 WLR 83, para 71 per Pill LJ.

(1) the decision‐maker had previously done anything that directly or

indirectly indicated what view the decision‐maker took, or would

or might take, in relation to the matter, and

(2) the matter was relevant to the decision.

99 Section 25 applies when a person makes an allegation of bias or

predetermination or otherwise there is an issue about the validity of a

decision by certain public bodies and it is relevant to that issue whether the

decision‐maker, or any of the decision‐makers, had or appeared to have had

a closed mind (to any extent) when making the decision.238

100 Section 25 of the Localism Act 2011 only applies to a limited number of

administrative decision‐makers. It only applies to decisions made by county

councils, district councils, county borough councils, London borough councils,

the Common council of the City of London, the Greater London Authority, a

National Park authority, the Broads Authority, the Council of the Isles of

Scilly, a parish council or a community council.239

101 It also only applies to decisions by members of the listed decisions makers

(whether elected or not) or a decision maker that is a co‐opted member of

that authority.240

F. Exceptions

Introduction

102 By far the most important exception to the rules against bias and

requirement of independence is waiver. Of secondary importance is the

doctrine of necessity. Some commentators suggest that there are further

238 Localism Act 2011, s 25 (1). 239 Localism Act 2011, s 25 (4). 240 Localism Act 2011, s 25 (3).


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exceptions to the rules against bias relating to ‘contract’ and ‘statute’.241 The

former ‘exception’ is of limited relevance to the judicial review claims whilst

the latter is better regarded not as a separate exception but as a species of

necessity.

Waiver

Introduction

103 A party can waive their right to object in cases involving presumed bias,242

apparent bias243 and lack of independence244 although there is some doubt

whether waiver applies to cases of actual bias possibly because waiver in

such circumstances would be contrary to the public interest.245

104 For any waiver to be binding on a party it must be:

(1) made voluntarily; and

(2) made in full knowledge of all the facts relevant to the decision

whether to waive or not; and

(3) clear and unequivocal.246

Voluntary

241 See Supperstone, Goudie and Walker, Judicial Review (3rd edn, 2005), paras 11.18‐11.19. 242 R v Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, HL, 138 per Lord Goff. See also Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 15 and Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [2004] IRLR 218, para 30. 243 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 26. 244 Millar v Dickson [2001] UKPC D4, [2002] 1 WLR 1615, para 31 per Lord Bingham. However, see Lord Clyde’s view at p 1646 that it may not be possible to waive right to an independent tribunal under Article 6 (1) ECHR in criminal cases. 245 R v Secretary of State for the Home Department, ex p Fayed [2001] Imm AR 134, CA, paras 86‐9 per Kennedy LJ, paras 111 per Rix LJ. 246 Millar v Dickson [2001] UKPC D4, [2002] 1 WLR 1615, para 31 per Lord Bingham. See also Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 15; R (Agnello) v London Borough of Hounslow [2003] EWHC 3112 (Admin), [2004] LGR 536, para 87 per Silber J. A similar doctrine exists in relation to the right to an ‘independent and impartial tribunal’ under Article 6 (1) ECHR, see eg Deweer v Belgium (1980) 2 EHRR 439 and Pfeifer and Plankl v Austria (1992) 14 EHRR 692.

105 Waiver will only be sufficiently voluntary if a party has not been pressurised

by his or her lawyers,247 if they have them, or the decision‐maker.248 The

party must have adequate time to consider the issue249 and have sufficient

information about their options including, if possible, the extent of any delay

caused if the decision‐maker is asked to recuse themselves.250

Full Knowledge

106 The parties must have full knowledge of the relevant facts that give rise to

presumed or apparent bias or lack of independence.251 If the decision‐maker

fails to disclose such facts but a party is aware of them from other sources

this is likely to be sufficient.252 However, the doctrine of constructive

knowledge, whereby information in the public domain is imputed to a party

even though they were not aware of it, is unlikely to be applicable to waiver

in this context.253

107 Disclosure of the ‘full facts’ does not mean disclosure of every detail that a

party may wish to know.254 It is limited to the essential or salient facts.255

Salient facts include the state of the law.256

Clear and unequivocal

108 Waiver can be express or implied. A court may imply waiver from the passage

of time that has elapsed since the party became aware of the basis for

247 Smith v Kvaerner Cementation Foundations [2006] EWCA Civ 242, [2007] 1 WLR 370, paras 32‐37 (Claimant’s barrister suggested that the recorder, who was head of his Chambers, had great integrity and that everything ‘would be above board’. The Court of Appeal concluded that in such circumstances, waiver was not voluntary.) 248 Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [2004] IRLR 218, para 33‐4. 249 Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [2004] IRLR 218, para 35 (vi). 250 Smith v Kvaerner Cementation Foundations [2006] EWCA Civ 242, [2007] 1 WLR 370, para 31. 251 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 QB 451, CA, para 26. 252 BAA Ltd v Competition Commission [2009] CAT 35, [2010] Comp AR 23, para 153. 253 BAA Ltd v Competition Commission [2009] CAT 35, [2010] Comp AR 23, paras 154‐156. 254 Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [2004] IRLR 218, para 36. 255 Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, [2004] IRLR 218, para 36. 256 Millar v Dickson [2001] UKPC D4, [2002] 1 WLR 1615, para 34. A litigant who is aware of the facts that give rise to the appearance of bias but is not aware that he was entitled to object will not be said to have waived , see R v Essex Justices, ex p Perkins [1927] 2 KB 475 DC, 489 per Avory J.


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making an objection.257 A court is likely to be more willing to imply waiver

when the matter that gives rise to the right to object is obvious.258

109 It has been suggested that a party can avoid the application of the doctrine of

waiver if they express concern that there has been a breach of the rule

against bias but do not seek the decision‐maker’s recusal.259 Whilst this

approach may be consistent with the requirement that any waiver must be

‘unequivocal’, it is suggested that to permit a party to be able to avoid waiver

without making a recusal application would be wrong and this does not

represent the law in England and Wales.260

The burden of proof

110 The legal burden is on the party alleging bias, predetermination or lack of

independence to prove his or her unawareness of the essential facts.261

Necessity262

111 A long established exception to the rule against bias is that of necessity. If no

other decision‐maker is empowered to consider the matter, the decision‐

maker who has a disqualifying interest must consider it notwithstanding the

existence of the disqualifying interest.263 Such an exception applies to

presumed and apparent bias but possibly not actual bias.264

257 Birmingham City Council v Yardley [2004] EWCA Civ 1756, The Times, 13 December 2004, paras 28‐31 per Gage LJ, para 37 per Kennedy LJ. 258 Millar v Dickson [2001] UKPC D4, [2002] 1 WLR 1615, para 35. 259Vakauta v Kelly (1989) 167 CLR 568, Aus HC, 577 per Dawson J, 587 per Toohey J. 260 BAA Ltd v Competition Commission [2009] CAT 35, [2010] Comp AR 23, para 152. 261 Competition Commission v BAA Ltd [2010] EWCA Civ 1097, paras 50‐52 per Maurice Kay LJ. 262 See generally, R Tracey, ‘Disqualified adjudicators: The doctrine of necessity in public law’ [1982] 628, and I Leigh, ‘Bias, Necessity and Convention Rights’ [2002] PL 407. 263 See eg Dimes v Grand Junction Canal (1852) 3 H.L. Cas. 759, HL (Lord Chancellor who had a disqualifying pecuniary interest whilst disqualified from considering the substantive litigation could sign the enrolment order which was required in order for the case to proceed to the House of Lords). See also Phillips v Eyre (1870) LR 6 QB 1, HC (Governor of a colony was able to assent to an Act of Indemnity which, inter alia, afforded him protection, as to become law it required his signature.) 264See Kingsley v United Kingdom (2001) 33 EHRR 13, para 37 where counsel for the United Kingdom Government accepted that the doctrine of necessity did not apply to cases of actual bias. Such an approach is consistent with public policy and the law on waiver.

112 The scope of the necessity exception has been considerably reduced as a

result of the European Court on Human Right’s decision in Kingsley v United

Kingdom.265 In Kingsley, the European Court concluded that the Gaming

Board, the only body empowered to decide whether the applicant was a ‘fit

and proper person’ to be a director of a casino company, did not have the

required appearance of impartiality and that therefore there was a breach of

Article 6 (1) ECHR. Thus, where the decision challenged determines civil rights

and obligations or a criminal charge the doctrine of necessity will not apply.

113 Until recently the Court had the power pursuant to CPR 54.19 (3) to take the

decision itself. However, this provision has been revoked266 and therefore

the only course of action available to the Court if it concludes that the

decision‐maker is not independent or impartial within the meaning of Article

6 (1) EHCR is to make a declaration of incompatibility.267

265 (2001) 33 EHRR 13. 266 See Civil Procedure (Amendment No 2) Rules 2007. 267 See Human Rights Act 1998, s 4.


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Slide 1

BIAS AND PREDETERMINATION

ANDREW SHARLAND4-5 GRAY’S INN SQUARE

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 2 Structure of lecture

• General law of bias– Actual bias– Presumed bias/automatic disqualification– Appearance of bias– Predetermination

• Practical considerations• Recent developments

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 3 Actual bias

• Very rare

• Hard to prove

• Automatically disqualifies decision maker

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 4 Automatic disqualification

• Direct financial interest, see Dimes v Proprietors of Grand Junction Canal

• Applied flexibly: Locabail (UK) Ltd v Bayfield– De minimus exception

• “promotion of cause”, see Pinochet (No 2)• Friendship with a proposed witness, see AWG

Group Ltd v Morrison

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 5 Appearance of bias (1)

• Lord Hope in Porter v Magill“whether the fair-minded and informed observer,

having considered the facts, would conclude that there was a real possibility of bias.”

• Relevant observer“a reasonable member of the public neither unduly compliant or naïve nor unduly cynical or suspicious and adopting a balanced approach.”

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 6 Appearance of bias (2)

• Court vs reasonable observer• Real danger vs real possibility• Facts and circumstances of case very important• Relevant facts are those apparent to the court upon

investigation and are not restricted to the circumstances available to the hypothetical observer at the original hearing, see Flaherty v National Greyhound Racing Club

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________


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Slide 7 Exceptions

• Waiver– Extent of knowledge– Criminal/civil

• Necessity– Common law– Article 6 (1) ECHR

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 8 Predetermination

• Predetermination vs bias– Conceptually distinct, see Sedley J in R v Secretary of State

ex parte Kirkstall Valley

• Predetermination vs predisposition• Current test:

whether a fair-minded and informed observer, knowing the facts, would think that there was a real possibility that the decision-maker did not approach the matter with an open mind.

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 9 Practical considerations

• Evidence from the decision-maker• The judicial oath• Training• Complaints• Previous or subsequent recusal• Application to advisers• Recusal procedure• Lawyer’s duty to advise on bias

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 10 Recent developments

• Local authority predetermination– R (Berky) v Newport CC– S 25 Localism Act 2011

• The fair-minded and informed observer– Virdi– Belize Bank

• Competition Commission v BAA Ltd• Various other cases

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 11 R (Berky) v Newport CC

• Challenge to grant of planning permission

• No application to cross examine

• Applied Lewis v Redcar

• Multi-person decision-making

• Doubted Ouseley J in Bovis Homes

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 12 Section 25 Localism Act 2011

• Purpose: to clarify the common law on unlawful predetermination

• To whom does s 25 Localism Act 2011 apply?• Previous actions of a decision maker not

determinative (not limited to views on matter for decision)

• Differences between s 25 and Redcar?– “just because”

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________


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Slide 13 Virdi and the “informed observer”

• Role of clerk who retired with disciplinary tribunal

• Knowledge of the informed observer– Court/fair minded observer

– Knowledge not limited to facts publicly available at the time

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 14 Belize Bank and the “informed observer”

• Appointment to statutory appeal board• Lord Kerr (the majority)

– Notional observer – “capable of being known”– Not limited to what is immediately in the public

domain

• Lord Brown (dissenting)– Problems with the concept of the informed

observer

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 15 BAA v Competition Commission

• The CAT decision– Appearance of bias– Waiver

The CA decision– More limited finding re appearance of bias– No operative effect– Contamination– Waiver

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 16 Other cases

• R (Kaur) v Institute of Legal Executives• A v B • CD (DRC) v SSHD• R (National Association of Memorial Masons)

v Cardiff CC

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________


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JUDICIAL REVIEW PRACTICE AND PROCEDURE UPDATE 2012

Annabel Lee

4‐5 Gray’s Inn Square

Introduction

1. This paper covers recent developments in practice and procedure in judicial review

proceedings. It is intended to give a focused update relating to the key

developments of practical importance in the last 12 months. The principal topics

covered are:

(a) Standing

(b) Delay

(c) Academic challenges

(d) Protective Costs Orders

(e) Costs generally

(f) Oral hearings

(g) Appeals

2. In relation to each of the main topics I have briefly summarised the relevant legal

principles for those who have less familiarity with the principles of judicial review,

before turning to the recent developments. My talk will focus on the recent

developments outlined in this paper.

Standing

Summary

3. The Senior Courts Act 1981 section 31(3) provides that the court shall not grant

permission to apply for judicial review “unless it considers that the applicant has a

sufficient interest in the matter to which the application relates”.

4. The question of what amounts to a sufficient interest is a question of fact and

degree having regard to the relationship between the claimant and the matter to

which the claim relates and other circumstances of the case. In practice, a broad

approach to standing is often taken.

Recent Developments

5. In R (on the application of Williams) v Surrey CC [2012] EWHC 516 (Admin) the

claimant applied for permission to seek judicial review of a decision of the local

authority to introduce "community public libraries" within its area. She was part of a

loose group of individuals who opposed the local authority's policy. The Claimant did

not live or work in the local authority's area, but lived just outside and worked at a

university close to the border. The local authority challenged her standing to bring

the proceedings, alleging that she was a "man of straw", selected as claimant by the

group because of her eligibility for legal aid.

6. The Court found that the Claimant had the requisite standing to bring the

proceedings even though she lived and worked outside the local authority’s area. At

paragraph [13] the Court said:

“It is clear that there are a wide range of people who can legitimately claim

to have an interest in the implementation in accordance with the Act of

policies involving libraries, and that interest can extend, quite legitimately,

way beyond those who live, work or pay local taxes within the Surrey County

Council area. This is not an unusual situation in modern legislation and

current practices within the Administrative Court, and, as the range of cases

that were cited in argument show, interest groups and those who have an

interest in matters of public concern across a whole spectrum of interests,

from planning and environment through to equality and community

legislation and the payments and collection of revenue, and I am not


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intending an exhaustive list, are held to have a sufficient interest in bringing

judicial review proceedings in cases where it is arguable that there has been

a breach of relevant legislation or the relevant law and that there has been

as a result an impact on a section of the community which need not

necessarily include the individual who is bringing the proceedings.”

Delay

Summary

7. As practitioners will be well aware, there are strict time limits for bringing claims for

judicial review. CPR rule 54.5 states:

“(1) The claim form must be filed –

(a) promptly; and

(b) in any event not later than 3 months after the grounds to

make the claim first arose.”

8. In addition, section 31 of the Senior Courts Act 1981 provides:

“(6) Where the High Court considers that there has been undue delay in

making an application for judicial review, the court may refuse to

grant – (a) leave for the making of the application, or (b) any relief

sought on the application, if it considers that the granting of the

relief sought would be likely to cause substantial hardship to, or

substantially prejudice the rights of, any person or would be

detrimental to good administration.

(7) Subsection (6) is without prejudice to any enactment or rule of court

which has the effect of limiting the time within which an application

for judicial review may be made.”

9. An added complication is that under European law, the requirement to bring

proceedings promptly must be interpreted consistently with the principles of

certainty and effectiveness: Uniplex (United Kingdom) Ltd v NHS Business Services

Authority [2010] PTSR 1377; R (Buglife) v Medway Council [2011] EWHC 746

(Admin).

Recent developments

10. In R (on the application of U & Partners (East Anglia) Ltd) v Broads Authority

[2011] EWHC 1824 (Admin) the Claimant applied for judicial review of the grant of

planning permission by the Defendant, relying on the provisions of domestic

regulations which transposed into domestic law the provision of an EU directive. The

Claimant brought the claim a week short of three months from the date of the

decision. By then the interested party had spent substantial sums in reliance on the

planning permission.

11. Collins J held that although the Claimant had not

brought its claim promptly the application would be allowed for two reasons. The

first was the strength of the Claimant’s case as the grant of planning permission was

clearly ultra vires. The second was that there had been a breach of the Directive and

EU law did not permit the bringing of proceedings to be subject to a time limit that

depended on the exercise of judicial discretion. The limit had to be certain,

otherwise the protection of rights derived from the Directive would not be effective.

Member States could introduce reasonable time limits for bringing proceedings

under Directives transposed into domestic law but they had to do so in a way which

avoided uncertainty.

12. In R (Berky) v Newport City Council [2012] EWCA Civ 378 a resident challenged a

decision of the local authority to grant planning permission on three grounds:

(a) The decision required an environmental statement and inadequate reasons

were given;

(b) The decision making process was tainted by real or apparent bias; and


79


(c) The decision was irrational.

13. The Court distinguished between the first ground, which turned on a requirement

derived under EU law, and the bias and irrationality grounds which depended purely

on domestic law. Their Lordships considered the case of Uniplex (United Kingdom)

Ltd v NHS Business Services Authority [2010] PTSR 1377 where it was held that in

the field of public procurement, an undefined test analogous to that of promptness

offended the European principles of certainty and effectiveness. Following R (U &

Partners (East Anglia) Ltd v The Broads Authority above and R (Buglife) v Medway

Council [2011] EWHC 746 (Admin) this also applied to challenges on grounds of an

environmental impact assessment.

14. Therefore, the issue arose as to whether Community and domestic law challenges

should be subject to different time limits. Carnwath LJ took the view that Uniplex

was concerned only with the time allowed for commencing proceedings and did not

affect the court’s power under section 31(6) to withhold remedies if there had been

undue delay. Lord Justice Moore‐Bick and Sir Richard Buxton differed on this point

and did not recognise the distinction made by Carnwath LJ. Sir Richard Buxton said

that the recognising the difference would “put form over substance.” The

consequence was that there could not be ‘undue delay’ in commencing proceedings

if the claim is brought within three months.

15. In R. (on the application of Macrae) v Herefordshire DC [2012] EWCA Civ 457 the

Claimant issued his claim for judicial review from the grant of planning permission

two days before the expiry of the three‐month time limit under CPR r.54.5.

16. Lord Justice Sullivan summarised the problem at [10]:

“… there is still a requirement of promptness in the light of certain decisions

of the European Court of Justice, now the Court of Justice of the European

Union. It is submitted that the promptness requirement is not compatible

with the requirement of legal certainty as applied by the CJEU and that it is

undesirable that there should be two approaches to the need for

promptness, on the one hand to purely domestic cases and on the other to

those cases where there is an EU dimension.”

17. In this case Sullivan LJ considered that it was not necessary to resolve the interesting

issue of whether the requirement that a claim for judicial review be issued promptly

as well as within the three‐month time limit in CPR r.54.5 was compatible with

European law

18. In this particular case, the issues of promptness and adequacy of reasons were

interlinked. One of the circumstances that would be relevant to the question of

whether an application for judicial review was made promptly was the extent to

which the decision to be reviewed was plain or left the applicant in the dark as to

the reasons behind it. Lord Justice Sullivan said at [12]:

“Whether an application for permission to apply for judicial review is made

promptly will depend upon all the circumstances. One of those

circumstances is the extent to which the alleged error of law in the decision

is plain or whether the decision “leaves the claimant in the dark” as to the

basis on which it was taken. In the latter case it would normally be

reasonable for the claimant to seek to ascertain, so far as he reasonably can,

what was the basis for the decision before he resorts to litigation.”

19. In R. (on the application of Offerton Park Parish Council) v Stockport MBC [2011]

A.C.D. 120 the defendant alleged that, although the application for judicial review

had been issued well within three months of the date of the decision, the claimant

had not acted promptly and there should be no relief. The defendant asserted that

the claimant should have issued the proceedings and obtained interim relief before

the defendant set its council tax. The failure to do so meant that the defendant set

its council tax without being able to include a precept. If the decision to abolish the

claim was quashed, the only way the claimant could be funded would be from the

general body of council tax payers.

20. The judge rejected this assertion. He said that the court should be slow to refuse a

remedy with the result that the electors of the parish would be denied the

representation to which they were entitled. Moreover, the claimant had sent a clear

pre‐action protocol letter in advance of the council tax being set and the defendant

took on itself the litigation risk.

21. In Allman v HM Coroner for West Sussex [2012] EWHC 534 (Admin) the claimant

applied for permission to apply for judicial review of a pre‐inquest review decision of


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the defendant coroner who ruled that the Claimant was not a properly interested

person and therefore could not question witnesses or challenge their evidence. The

deceased had died as result of a railway accident. Prior to his death he believed that

he was the targeted victim of electromagnetic stalking and harassment, which

adversely influenced his state of mind and thought processes. Before his death, the

Claimant had promised the deceased that if he died, he would ensure that the

authorities knew the killing was unlawful.

22. HHJ Anthony Thornton QC found at [27]:

“I conclude by deciding, as well, that Mr Allman’s claim related to the

Deputy Assistant Coroner’s ruling was out of time since it was not filed, as

required by CPR 54.5, promptly even though it was, apparently, filed exactly

3 months after the ruling since it was received in the Administrative Court

Office on 11 April 2011 exactly 3 months after the date of the ruling. The 3‐

month period is a long stop provision, a claimant must file the claim

promptly and will be shut out if the claim is filed within the 3‐month

period but is not filed promptly. In this case, no reason has been given to

show why the claim could not have been filed within, say 6 weeks of the

ruling to take a generous timescale.”

23. In R. (on the application of Williams) v Surrey CC [2012] EWHC 516 (Admin) the

Claimant challenged the local authority’s plan to introduce “community public

libraries”. The claim had been filed one day before the three month period expired.

The issue was whether it had been issued “promptly”.

24. The court discussed the issue at paragraphs [31] – [32]:

“The principal submission that was made on behalf of the Council was that

this was a decision which, even if it was only finally set in stone with

sufficient rigidity to enable it to be susceptible to judicial review at the

meeting held in October 2011, had been in play for many months. The issues

were clear and had been for many months. Those who wished to object on

Equality Act grounds were in full possession of all material, and the usual

and frequently cited grounds for promptitude in relation to decisions of

public authorities such as the present defendant applied here, and indeed

by waiting until nearly the end of the three month period the claimants have

put the Council into a difficult position in that steps are still being taken,

subject to the bar imposed on 20th January by the injunction, and many of

these steps could have been avoided pending the litigation had the action

been started earlier.

These are of course very powerful considerations, but set against that are

the considerations that faced the claimant and those who share her interest

in this litigation. A public law action of this kind must be, and clearly is, one

of the most difficult pieces of litigation that a citizen can be involved in.

That is not to say that other litigation of a private law nature is not complex

or stressful, but this is litigation of a wholly different order to the kind of

litigation that the claimants would ordinarily be expected to be involved in,

if they are involved in litigation at all. It involves very complex

considerations of law and fact, as I have already indicated and it involves

the necessity of finding a means of funding and if necessary avoiding so far

as possible the risks of having to pay costs in an adverse costs order during

or at the end of litigation. It is a step of enormous magnitude in terms of

the stress involved and in terms of the need, as I see it, the social and

practical need, to ensure that there is community support by those with a

like interest. For those reasons it is, first of all, reasonable that no real

attempt was made to start thinking of judicial review until the dye was cast

in October. There was the need, as I see it, and reasonable need in order to

minimise the financial risks, to see whether it was possible to obtain public

funding for a claimant and that was obtained, so there is now a decision of

the Legal Services Commission that this is a claim which falls within the

merits test of the Legal Services Commission structure now in place, and

there was the need for extensive research by the claimant's solicitors, and

that inevitably involved the need to instruct experienced counsel and the

preparation of a detailed letter before action to comply with the relevant

protocol and then to draft the necessary proceedings. Self‐evidently, that is


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not an equivalent process to the issuing of a claim form in order to chase a

debt. It is, as I have already said, complex, difficult and time‐consuming,

even for those who the claimant is fortunate to have assisting her and even

given the experience of those who are supporting her.”

25. In R. (on the application of Kilroy) v Parrs Wood High School Governing Body

[2011] EWHC 3489 (Admin) the Claimant school governor sought judicial review of a

decision of the Defendant governing body to suspend him from office for a period of

six months. He commenced the instant proceedings one day before the expiry of the

three‐month period referred to in CPR r.54.5, explaining his delay by the fact that he

had mistakenly been attempting to pursue an alternative remedy.

26. The Court found that the Claimant had adequately explained his initial failure to

commence judicial review proceedings. His pursuit of an alternative remedy might

have been erroneous, but it could not be said that he had ignored matters and the

governing body had not been prejudiced.

Academic Challenges

Summary

27. The Administrative Court has a discretion to entertain claims that have become

academic and such discretion has been exercised cautiously and where there are

good public interest reasons for doing so.

Recent Developments

28. R. (on the application of Kilroy) v Parrs Wood High School Governing Body [2011]

EWHC 3489 (Admin) also considered the argument that the proceedings should be

discontinued because the matter had now become academic. The Defendant

submitted that the proceedings had become academic because by the time the

matter reached the court the Claimant’s suspension period had already run its

course.

29. The Court stated at [19]:

“The submission made by the Defendant that these proceedings are now

academic is one that needs to be approached with some circumspection.

Whilst I accept that this factor may be relevant if and when the point is

reached when it is necessary to consider what if any remedy ought to be

granted, I do not consider it relevant to the issue of whether the Claimant

should be permitted to maintain a claim. If the Claimant has been treated

unlawfully, then the fact that the consequences of what on this hypothesis

would be unlawful conduct had played themselves out by the time the claim

for judicial review comes to court, does not entitle a Defendant who has

acted unlawfully to avoid a finding to that effect. That is particularly the case

where any unlawful suspension of the Claimant might have an effect on the

validity of business conducted by the Defendant.”

Protective Costs Orders

Summary

30. The cost rules are contained CPR 44 and the general rule set out in CPR 44.3(2) is

that the unsuccessful party will be ordered to pay the costs of the successful party.

The risk of losing a claim and incurring costs liability to the other side is a deterrent

to bringing judicial review claims and protective costs orders (“PCOs”) provide a

method to circumvent this risk by the court making an order that regardless of the

outcome, the claimant will not be required to any or more than a particular sum of

the defendant’s costs. The court may also impose a reciprocal cap as to what costs

the claimant will be able to recover from defendant if the claim is successful.

31. The leading case on PCOs is R (Corner House Research) v. Secretary of State for

Trade and Industry [2005] EWCA Civ 192. In that case, the Court of Appeal set out

the following principles at [74]:


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a. A PCO may be made at any stage of the proceedings, on such conditions as

the court thinks fit, provided that the court is satisfied that:

(i) the issues raised are of general public importance;

(ii) the public interest requires that those issues should be resolved;

(iii) the applicant has no private interest in the outcome of the case;

(iv) having regard to the financial resources of the applicant and the

respondent(s) and to the amount of costs that are likely to be involved it is

fair and just to make the order;

(v) if the order is not made the applicant will probably discontinue the

proceedings and will be acting reasonably in so doing.

b. If those acting for the applicant are doing so pro bono, this will be likely to

enhance the merits of the application for a PCO.

c. It is for the court, in its discretion, to decide whether it is fair and just to make

the order in the light of the considerations set out above.

32. In that case the Court of Appeal granted a full PCO protecting Corner House from

having to pay any costs if it lost. However, the Court also imposed a limit on the

costs that the claimant could recover if it was successful, and in so doing identified

two further principles, namely that the costs must be “no more than modest” and

costs can only be recovered for junior counsel.

33. The principles set out in Corner House have been further defined in subsequent case

law. Broadly, the following refinements can be identified from subsequent case law:

a. The principles set out in Corner House should be treated as guidance and

not as rules and should be flexibly applied: R (Buglife) v Thurock Thames

Gateway Development Corporation [2008] EWCA Civ 1209 and Morgan v

Hinton Organics [2009] EWCA Civ 107.

b. In relation to the requirement for an issue of public importance and public

interest, Smith LJ in R (Compton) v Wiltshire Primary Care Trust [2008]

EWCA Civ 749 stated i) there is no absolute standard by which to define

what amounts to an issue of general public importance, ii) there are degrees

to which the requirement may be satisfied, some issues may be of first rank

general importance and others of a lesser rank, iii) making a judgment is an

exercise in which two judges may legitimately disagree without either being

wrong and iv) Corner House does not define what amounts to an issue of

general public importance, but provides some examples that does not seek

to limit issues to that nature, it does not say that only issues of national

importance will qualify (see [73] – [78]).

c. In relation to private interest, the “no private interest” principle in Corner

House has been narrowly interpreted, and the better view is that this is a

relevant factor but not decisive as to whether a PCO should be granted: see

Wilkinson v Kitzinger [2006] EWHC 835 (Fam), approved by the Court of

Appeal in R (England) v London Borough of Tower Hamlets [2006] EWCA Civ

1742.

d. There is no additional hurdle that a PCO is only available in exceptional

circumstances: see Buglife and Compton (above).

e. As to what constitutes a ‘modest amount’, counsel undertaking public

interest work cannot expect anything like their ordinary rates and anyone

claiming to act in the public interest or undertaking a public service must

expect their charges to be discounted: see R (Medical Justice) v SSHD [2010]

EWHC 1425 (Admin).

34. In addition, special principles apply in some environmental judicial reviews which fall

within the ambit of the Aarhus Convention, although the scope of these principles

unfortunately remains unclear. The cause of the emergence of different principles in

the context of environmental judicial reviews is Article 9 of the Aarhus Convention

which provides:


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“ACCESS TO JUSTICE

(1) Each Party shall, within the framework of its national legislation,

ensure that any person who considers that his or her request for

information under article 4 has been ignored, wrongfully refused,

whether in part or in full, inadequately answered, or otherwise not

dealt with in accordance with the provisions of that article, has

access to a review procedure before a court of law or another

independent and impartial body established by law

[…]

(4) In addition and without prejudice to paragraph 1 above, the

procedures referred to in paragraphs 1, 2 and 3 above shall provide

adequate and effective remedies, including injunctive relief as

appropriate, and be fair, equitable, timely and not prohibitively

expensive.”

35. The Supreme Court in R (Edwards) v Environment Agency (No.2) [2010] UKSC 57

considered the meaning of ‘prohibitively expensive’ and made a reference to the ECJ

on whether the test was subjective or objective. Lord Hope at [35] held that there

was no clear answer but the balance seemed to lie in favour of the objective

approach following the earlier case of R (Garner) v Elmbridge BC [2010] EWCA Civ

1006.

Recent Developments

36. In R (on the application of Young) v Oxford City Council [2012] EWCA Civ 46 the

applicant applied for a protective costs order in respect of his appeal against a

decision of the local authority to grant planning permission for the re‐development

of a university campus next to his home. His case was that the local authority had

failed to take into account the relevant planning policies and the noise from the site.

37. Lord Justice Richards went through the relevant principles at [9]:

“The principles governing protective costs orders in the present context are

still essentially those in R (Corner House Research) v The Secretary of State

for Trade and Industry [2005] 1 WLR 2600, as considered in R (Compton) v

Wiltshire Primary Care Trust [2008] EWCA Civ 749 and R (Buglife) v

Thurrock Thames Gateway Development Corporation [2008] EWCA Civ

1209. It seems to me that the additional or qualifying principles considered

in R (Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006 and in

subsequent cases considering Garner do not apply here. Even though this

can broadly be termed an environmental case, it does not engage directly

effective provisions of EU law bringing in the obligations imposed on states

by the Aarhus Convention; and environmental cases are not otherwise

subject to materially different principles from the normal Corner House

principles.”

38. The qualifying principles in R. (on the application of Garner) v Elmbridge BC [2010]

EWCA Civ 1006, [2012] P.T.S.R. 250 did not apply since the case did not engage the

EU law provisions bringing in the obligations imposed by the Aarhus Convention

2001. On the basis of the normal Corner House principles the court declined to make

a protective costs order, taking into account the following five features of the case:

(a) Firstly, the issues raised were not of general public importance and nor did

the public interest require that they should be resolved on appeal. The real

question was simply whether the relevant local planning policies could have

been intended to apply to the very particular circumstances of the case.

Moreover, the validity of the planning permission was a matter of local

community interest rather than one of general public importance.

(b) Secondly, the Claimant had a very real personal interest in the outcome of

the case: his primary ground for bringing the proceedings was the impact of

noise on houses adjoining the site, including his own.


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(c) Thirdly, while there was a vast disparity between the Claimant's resources

and those of the local authority, it would be wrong to say that he had no

significant means.

(d) Fourthly, the court could not accept the Claimant's assertion that in the

absence of a protective costs order he would have to abandon the appeal.

(e) Finally, although a protective costs order had been granted to the Claimant

in the Administrative Court, the reasons for that hinted at an element of

pragmatism rather than any acceptance that the issues were ones of general

public importance.

39. On 19 October 2011, after coming under pressure at all levels (Aarhus Compliance

Committee, the Commission, the ECJ and domestic pressure from reports by Jackson

LJ and Sullivan LJ); the Ministry of Justice published a consultation entitled Cost

Protection for Litigants in Environmental Judicial Review Claims. The consultation

applies to England and Wales and the exercise closed on 18 January 2012. The

consultation voices proposals which are intended to bring a degree of clarity to an

area which still places a great deal of discretion in the hands of the court.

40. The main proposals discussed in the consultation are as follows:

(a) The rules are to apply to judicial review cases falling under the Aarhus

Convention and they are applicable to all claimants regardless of whether

they are a natural or legal person;

(b) A PCO will be obtained by lodging an application but need not be backed up

by grounds and evidence except in special circumstances;

(c) A PCO will only be granted if permission to apply for judicial review is

granted;

(d) The PCO will limit the liability of the claimant to pay the defendant’s costs to

£5,000 and also limit the liability of the defendant to pay claimant’s costs to

£30,000;

(e) The defendant may apply to have the cap removed if the claimant is not in

need of costs protection – where information on the claimant’s resources is

publicly available. Consultees are also asked whether there should be an

option to raise the cap as well as remove it.

41. In R. (on the application of Simmons) v Bolton MBC [2011] EWHC 2729 (Admin) the

terms of the PCO permitted either party to apply within seven days to vary or

discharge the PCO. After eight days, the Claimant’s solicitor wrote a letter to the

court office applying to vary the order and asked the Court to treat the letter as their

formal application. A few weeks later the Claimant’s solicitors sent an application

notice to the Court seeking the hearing of the application to vary the PCO. The issues

were whether:

(a) Either the letter or the application notice constituted a valid application to

vary the terms of the PCO; and

(b) Whether time for making that application should be extended.

42. The Court found that the letter did not constitute a valid application for the

purposes of the PCO. The Court emphasised that although judicial review was

governed procedurally by CPR Part 54 it was also governed by the other provisions

of the Rules except where those provisions had been excluded or modified.

Therefore, CPR Part 23 applied to any application for a court order. CPR r. 23.3

required a person making an application to first file an application notice unless the

court dispensed with that requirement.

43. The court said that although the application notice was technically defective in that

it sought an order to list an application that had not been made it should be read in

context. The Claimant’s solicitors had written to the local authority setting out its

case for a variation of the PCO. The Court was therefore prepared to regard the


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notice as in substance an application to vary the PCO. The Court still had to decide

whether it would extend time for the brining of the application. The Claimant had

provided no satisfactory explanation for the failure to comply with the terms of the

PCO and the application for an extension of time had not been made promptly.

However, the effect of granting relief was stark. Considering the effects of the failure

to comply and the effects of granting relief, the extension was granted.

Costs generally

44. R. (on the application of Bahta) v Secretary of State for the Home Department

[2011] EWCA Civ 895 involved applications for judicial review of immigration

decisions which had been resolved without a contested court hearing. The

appellants had claimed their costs unsuccessfully, and appealed. Although the

appellants had achieved what they had sought in their claims (the grant of ILR or

permission to work), the Secretary of State had stated that the proceedings had

been settled for ‘purely pragmatic reasons’ and relied on the fact that they had been

withdrawn by consent. The consent order had each included a provision that costs

liability should be determined on the basis of written submissions. The Court held

that the terms of the consent order did not exclude the right of appeal, which could

only be excluded by plain words.

45. On the main issue, the Court held that there was no substance to the secretary of

state’s claim that the grant of ILR was wholly unrelated to the course of the judicial

review proceedings. The Court also held that the Secretary of State had not been

entitled to refuse ILR pending an appeal to the Supreme Court from a Court of

Appeal decision ruling that those in the position of the appellants were entitled to

ILR.

46. The Court held that the date at which the costs application is decided is the relevant

date for establishing whether proceedings should have been commenced, but that

consideration is required of the whole sequence of events and the conduct of the

parties throughout, including the conduct of the parties after the defendant has told

the Claimant that relief is being offered and what it is.

47. It was unacceptable for the defendant not to address the issues once an adequately

formulated letter of claim was received. In the absence of an adequate response, a

Claimant was entitled to institute proceedings. If the claimant then obtained the

relief sought or substantially similar relief, the Claimant could expect to be awarded

costs against the Defendant. The Defendant must follow the Practice Direction (Pre‐

Action Conduct) or any relevant pre‐action protocol. The procedure was not

inflexible and an extension of time may be sought if supported by reasons.

Notwithstanding their heavy workload, there is no special rule for government

departments in this respect: that an order for costs would add to their financial

burdens was not a reason for depriving other parties, including publicly funded

parties, of costs to which they were entitled.

48. The court said that it was not a good reason to deprive a publicly funded party of

costs because those acting will obtain some remuneration even if no order is made.

It was no longer acceptable to make no order because it involved transferring funds

from one public body to another. Nor was it relevant that publicly funded lawyers

are, or are claimed to be, inadequately remunerated. Whether an order for costs

should be made depends on the merits of the particular application, and the specific

circumstances need to be analysed.

49. The court expressed serious reservations about the defendant’s claim to avoid costs

when a claim is settled for ‘purely pragmatic reasons’. Although there may be cases

in which relief is granted for reasons entirely unconnected with the claim made,

there would need to be a clearly expressed explanation which would need to be

analysed.

50. The starting point in the CPR is that a successful claimant was entitled to his/her

costs, and compliance with the pre‐action protocol was important. A defendant who

has not complied with it should not be able to invoke the principle in R (Boxall) v

Waltham Forest LBC (2001) 4 CCLR 258 that costs orders should not discourage

settlement. The court emphasised that the circumstances of each case do require

analysis and, although the principle of proportionality requires some limits to be

placed on this, judges should not be too easily deterred.


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51. In M v London Borough of Croydon [2012] EWCA Civ 595 the Court gave general

guidance on costs issues in relation to Administrative Court cases which settled on

all issues save as to costs. In this case, a local authority had conceded a claim made

by an asylum seeker in relation to his age. The local authority eventually conceded

the Claimant’s age but refused to pay the costs of the proceedings.

52. The Court reviewed the authorities and held that following R (Bahta) v SSHD [2011]

EWCA Civ 895 the general rule was that where a Claimant obtained all the relief he

sought, whether by consent or after a contested hearing, he was the successful

party and was entitled to all of his costs unless there was a good reason to the

contrary. However, where a Claimant only obtained some of the relief which he

sought the position on costs was more nuanced. In such cases, there could be

argument as to which party was more successful in light of the relief which was

sought and not obtained, or, even if the Claimant was accepted to be the successful

party, there might be an argument as to the importance of the issue, or costs

relating to the issue, on which he failed. Whilst the allocation of costs would depend

on the specific facts, there was no reason why a Claimant should not recover all of

his costs where he was successful. Where he is only partially successful, the Court

would normally determine questions such as how reasonable the Claimant was in

pursing the unsuccessful claim, how important it was compared with the successful

claim and how much the costs were increased as a result of pursuing the

unsuccessful. In a case where there had been some compromise which did not

actually reflect the Claimant’s claims the court was often unable to gauge whether

there was a successful party in any respect and in such cases there was an argument

that the default position should be no order for costs.

53. In the instant case, the Court awarded the Claimant 50% of his costs until permission

and 100% thereafter. The factors which the Court took into account included the

fact that the local authority had ample time to deal with the issue before the claim

was issued and until permission was granted. The local authority had failed to

acknowledge service until they were well out of time.

54. In AL (Albania) v Secretary of State for the Home Department [2012] EWCA Civ 710

the Court gave guidance as to the appropriate costs order where statutory asylum

and immigration appeals were disposed of by consent and where the appellants had

obtained a benefit from the appellate process, namely either a remittal to the Upper

Tribunal or the grant of some status.

55. The court found that the appellants were clearly identifiable as the successful

parties and they were therefore entitled to their costs under CPR r.44.3(2)(a).

Accordingly, the crucial question was the identification of the successful party. Lord

Justice Maurice Kay said at [23]:

“It follows from what I have said that the crucial question in cases such as

this will be the identification of the successful party. As to this, the recent

guidance in M will be relevant in the present context, even though we are

not in Pre‐Action Protocol territory. It is difficult to see why, special protocol

considerations apart, the position should be significantly different. After all,

in the context of a second appeal, the respondent will usually be familiar

with the appellant’s case well before the determination of the UT. I

understand why the Secretary of State usually chooses not to engage with

an appeal to this Court before permission to appeal has been granted

(although she will have been served with the appellant’s notice well before a

Lord Justice has considered the application for permission on the papers). It

is a matter of prioritising resources, as to which these are especially difficult

times. However, that is not a sufficient reason to place a barrier in the way

of an identifiably successful appellant. I repeat, indeed, emphasise, that

there may be circumstances in a particular case where, for example, the

identification of success is not straightforward, or where identified success is

accompanied by some feature which raises a genuine conduct issue, or

where the Court finds itself unable to come to a clear conclusion without

embarking upon a disproportionate investigation. However, if the present

cases are typical, such considerations will not be the norm.”


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Oral Hearings

Summary

56. The relevant rule is contained in CPR rule 54.18 which states:

“The court may decide the claim for judicial review without a hearing where all

the parties agree.”

57. The Court also has wide ranging powers of case management. Under the general

rules for dealing with applications rule 23.8 provides:

“The court may deal with an application without a hearing if

(a) the parties agree as to the terms of the order sought;

(b) the parties agree that the court should dispose of the application

without a hearing, or

(c) the court does not consider that a hearing would be appropriate.”

Recent Developments

58. In BP v SSHD [2011] EWCA Civ 276 the appellant appealed against the refusal to

grant him an oral hearing in relation to his claim for judicial review of a decision of

the respondent Secretary of State made under the Immigration and Asylum Act

1999 s.4. Prior to the hearing, the Claimant was granted indefinite leave to remain

and was no longer entitled to welfare support under s.4 of the 1999 Act. The Court

therefore considered that the matter was academic and ordered that the hearing be

listed for formal disposal. Formal disposal did not include a right to an oral hearing.

The Claimant therefore requested an oral hearing to determine whether his claim

should proceed on the basis that it was not purely academic but that application was

refused.

59. The Court agreed that the CPR did not contemplate final orders on civil claims being

made without the opportunity for an oral hearing. Rule 54.18 applied to a final

decision on a claim for judicial review. The rule dealt specifically and exclusively with

claims for judicial review and covered the present situation. Where permission had

been granted, the claimant was entitled to a hearing. The effect of the rule was that,

unless all parties agreed that the claim for judicial review might be decided without

a hearing, the entitlement existed. Lord Justice Pill put it as follows at [28]‐[29]:

“In my judgment, CPR 54.18 applies to the final decision on a claim for

judicial review. The rule deals specifically and exclusively with claims for

judicial review and covers the present situation. Where permission to apply

has been granted, the claimant is entitled to a hearing.

The effect of the rule is that, unless all parties agree that the claim for

judicial review may be decided without a hearing, the entitlement exists.

That accords with fundamental principle, which is not diluted by the rules.

For this purpose, a decision that the claim for judicial review should not be

decided on its merits, whether for lack of standing of the claimant, or other

reason, is nevertheless a decision on the claim for judicial review within the

meaning of r 54.18. The decision has the effect of finally determining the

claim. I do not find that construction artificial.”

Appeals

60. In Medical Justice v SSHD [2011] EWCA Civ 269 the charity Medical Justice had been

successful in their application for judicial review. The Secretary of State applied for

permission to appeal. Permission to appeal was granted by the judge on terms that,

whatever the outcome of the appeal, Medical Justice had the benefit of a protective

costs order and the Secretary of State would pay Medical Justice’s costs of the

appeal. The Secretary of State appealed against the terms upon which permission to

appeal was given.

61. The Court of Appeal said that it was not open to the Secretary of State to appeal the

conditions attached to the grant of permission. There were three options open to


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the Secretary of State: (a) he could abandon the prospective appeal; (b) he could

accept the terms; or (c) he could treat the conditional permission as a refusal of

permission to appeal and make a fresh application of the appellate court. However,

the appellant could not seek to improve his position by appealing the conditions

attached to the grant of permission. If the issue were to be brought to the appellate

court it was appropriate that the court should be able to reconsider all aspects of

the issue of permission to appeal, not just the conditions attached.

62. In MD (Afghanistan) v Secretary of State for the Home Department [2012] EWCA

Civ 194 the Claimant, a failed asylum seeker, applied for permission to bring judicial

against the decision for his removal and for interim relief. The application for

permission and interim relief was refused by the judge. The Claimant appealed

against the decision to the Court of Appeal. The issue was whether the Court of

Appeal had jurisdiction to consider the refusal of permission to apply for judicial

review as well as the refusal to grant interim relief.

63. The Court found that it was generally inappropriate for the Court of Appeal to hear

both an appeal against the refusal of the Administrative Court to grant interim relief

and an appeal against the refusal on the papers to apply for judicial review. Lord

Justice Stanley Burnton stated at [18]‐[20]:

“We consider it important to maintain the distinction between a refusal of

interim relief and a refusal of permission to apply for judicial review. Interim

relief may be refused although the Court has not decided to refuse

permission to apply for judicial review, as where no sufficient case of

urgency is made out. Conversely, it may be appropriate to grant interim

relief even though no decision has been made to grant permission to apply

for judicial review.

There are two interrelated reasons why, in our judgment, it is in general

inappropriate for the Court of Appeal, in a case such as the present, to hear

both an appeal against the refusal by the Administrative Court of interim

relief and an appeal against its refusal on the papers of permission to apply

for judicial review. The first is that to do so converts the Court of Appeal,

which is an appellate court, into a court of first instance. The Court of

Appeal would have to determine the appeal without the benefit of any

judgment at first instance. CPR Part 52.15(4) makes express provision for the

Court of Appeal to act as a court of first instance, but even in such a case

there will be a judgment of the Administrative Court on the hearing of the

renewed application for permission to apply for judicial review, giving its

reasons for its decision.

The second, and perhaps more important, reason is that for the Court of

Appeal to act as a court of first instance effectively deprives the parties of

any appeal against the first judicial decision on the substance of the case.”

64. The Court found that it would contravene CPR r. 54.12(3) if the Court of Appeal

considered the judicial review claim. Only if an oral renewal was unsuccessful could

the Claimant appeal to the Court of Appeal.

65. Halligen v SSHD [2012] UKSC 20 concerned the requirements of a ‘notice of appeal’.

In Mucelli v Albania [2009] UKHL 2 the House of Lords held that the requirements in

sections 26(4) and 103(9) of the Extradition Act 2003 meant that a notice of appeal

had to be both filed in the High Court and served on all respondents to the appeal

within the time limit. The Supreme Court did not depart from Mucelli but a

generous view should be taken as to what constituted ‘giving notice of appeal’.


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Slide 1

PRACTICE AND PROCEDURE UPDATE

Annabel [email protected]

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 2 Standing• R (Williams) v Surrey CC [2012] EWHC

516: “It is clear that there are a wide range of people who can legitimately claim to have an interest in the implementation in accordance with the Act of policies involving libraries, and that interest can extend, quite legitimately, way beyond those who live, work or pay local taxes within the Surrey County Council area.”

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 3 Delay (1)• CPR rule 54.5• Section 31 Senior Courts Act• R (U & Partners (East Anglia) Ltd) v

Broads Authority [2011] EWHC 1824 (Admin)

• R (Berky) v Newport City Council [2012] EWCA Civ 378

• R (Macrae) v Herefordshire DC [2012] EWCA Civ 457

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 4 Delay (2)

• R (Offerton Park Parish Council) v Stockport MBC [2011] ACD 120

• Allman v HM Coroner for West Sussex [2012] EWHC 534 (Admin)

• R (Williams) v Surrey CC [2012] EWHC 516

• R (Kilroy) v Parrs Wood High School [2011] EWHC 3489 (Admin)

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 5 Academic challenges

• R (Kilroy) v Parrs Wood High School Governing Body [2011] EWHC 3489 (Admin)

• Submission that proceedings were academic must be approached with some circumspection

• Did not entitle the Defendant to avoid a finding of unlawfulness

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 6 Protective Cost Orders (1)• Costs CPR 44• Corner House principles have been refined by

subsequent case law:– Principles should be applied flexibly: Buglife– As to issue of public importance or public interest,

see Compton – “No private interest” rule narrowly interpreted and

best viewed as a relevant factor: Wilkinson v Kitzinger

• Medical Justice [2011] EWCA Civ 269: principles relevant to amount of reciprocal costs capping set out.

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________


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Slide 7 Protective Cost Orders (2)

• Different principles now appear to apply to some environmental judicial reviews.

• Article 9 of the Aarhus Convention: review procedure before a court “not prohibitively expensive”. This formulation adopted in the EIA and IPPC Directives.

• R (Garner) v Elmbridge BC [2010] EWCA Civ 1006

• R (Edwards) v Enviroment Agency (No.2) [2010] UKSC 57

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 8 Protective Cost Orders (3)

• R (Young) v Oxford City Council [2012] EWCA Civ 46

• Principles still essentially those in Corner House• Garner did not apply here. • Did not satisfy Corner House principles • MoJ Consultation: Cost Protection for Litigants in

Environmental Judicial Review Claims • Consultation ended 18 January 2012

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 9 Protective Cost Orders (4)• R (Simmons) v Bolton MBC [2011] EWHC

2729 (Admin) – application to vary or set aside PCO.

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 10 Costs in general• R (Bahta) v SSHD [2011] EWCA Civ 895• Settled for ‘purely pragmatic reasons’• M v London Borough of Croydon [2012]

EWCA Civ 595• Successful/partially successful Claimant• AL (Albania) v SSHD [2012] EWCA Civ 710• Statutory asylum and immigration appeals

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 11 Oral hearings

• BP v Secretary of State [2011] EWCA Civ276: “Where permission to apply has been granted, the claimant is entitled to an oral hearing.”

• “The effect of the rule is that, unless all parties agree that the claim for judicial review may be decided without a hearing, the entitlement exists. That accords with fundamental principle, which is not diluted by rules.”

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 12 Appeals

• Medical Justice v SSHD [2011] EWCA Civ269

• Appeal against conditions attached to permission

• MD (Afghanistan) v SSHD [2012] EWCA Civ 194

• Appeal against interim relief and refusal of permission

• Halligen v SSHD [2012] UKSC 20• Requirements of a ‘notice of appeal’

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________


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POLICIES: THE EXPANDING ROLE OF THE COURTS

Jonathan Moffett

Introduction

1. Public bodies frequently adopt policies setting out the approach that they will

normally take when exercising discretions entrusted to them. Similarly, bodies with

overarching responsibility for particular fields of activity (such as central government

departments) often issue policies (in the form of guidance, circulars, etc) stating the

approach that other public bodies operating with those fields should usually adopt

when exercising their discretions.

2. The common thread linking such policies is that they set out how discretions will

normally be exercised, albeit with varying degrees of specificity. The courts have

long recognised that such policies have the twin benefits of ensuring consistency

and guarding against arbitrariness in decision‐making,268 particularly where the

exercise of the discretion in question is a complex task.269

3. Accordingly, the courts have generally held that public bodies are entitled to adopt

policies as to how they will exercise their discretions, even if there is no express

statutory mandate for them to do so.270 However, the courts have been astute to

ensure that the adoption of such policies does not trespass upon a public body’s

overriding obligation to ensure that it approaches its discretions with an open mind.

4. Accordingly, it is long‐settled that policies must not be over‐rigid, and must allow for

exceptions to be made in particular cases.271 Similarly, although a public body must

268 R v Hampshire County Council, ex p W [1994] ELR 460, QBD, 475 per Sedley J; R v Ministry for Agriculture, Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, QBD, 722 per Sedley J; R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 143 per Lord Clyde (quoted in paragraph 4 below). 269 In re Findlay [1985] 1 AC 318, HL, 335 per Lord Scarman. 270 Cumings v Birkenhead Corporation [1972] 1 Ch 12, CA, 37 per Lord Denning MR; Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, QBD, 1297‐1298 per Cooke J. 271 Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, QBD, 1297‐1298 per Cooke J; Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P&CR 86, QBD, 93 per Woolf J; R v Secretary of State for the Home Department, ex p Venables [1998] AC 407, HL, 496‐497 per Lord Browne‐

consider each case before it in the light of any relevant policy and should only

depart from such a policy for good reason,272 it must not be overly rigid in its

application of that policy and a policy should not be treated as automatically

determining the outcome of a particular case.273 In particular, a public body must be

prepared to consider making exceptions to its policy.274 As Lord Clyde said in R

(Alconbury Developments Ltd) v Secretary of State for the Environment, Transport

and the Regions:275

“The formulation of policies is a perfectly proper course for the provision of guidance in the exercise of an administrative discretion. Indeed policies are an essential element in securing the coherent and consistent performance of administrative functions. There are advantages both to the public and the administrators in having such policies. Of course there are limits to be observed in the way policies are applied. Blanket decisions which leave no room for particular circumstances may be unreasonable. What is crucial is that the policy must not fetter the exercise of the discretion. Provided that the policy is not regarded as binding and the authority still retains a free exercise of discretion the policy may serve the useful purpose of giving a reasonable guidance both to applicants and decision makers.”

5. Policies are usually susceptible to judicial review and, if unlawful, they are liable to

be quashed. This is despite the fact that policies themselves rarely have any direct

legal consequences for an individual, but only impact on an individual indirectly as a

result of a decision taken pursuant to them.

6. Indeed, the courts are increasingly prepared to countenance free‐standing

challenges to policies, without the need for such challenges to be tied to claims in

respect of particular decisions taken pursuant to the relevant policy.276 More

recently, there has been a tendency on the part of the courts to consider more

general issues concerning policies in their own right, as distinct from the impact of

Wilkinson; R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 143 per Lord Clyde. 272 R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245, para 26 per Lord Dyson JSC. 273 British Oxygen Co Ltd v Minister of Technology [1971] AC 620, HL, 625 per Lord Reid; R v Hampshire County Council, ex p W [1994] ELR 460, QBD, 475‐476 per Sedley J; R v Ministry for Agriculture, Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, QBD, 722 per Sedley J. 274 R v Port of London Authority, ex p Kynoch Ltd [1919] 1 KB 176, CA, 184 per Bankes LJ; British Oxygen Co Ltd v Minister of Technology [1971] AC 620, HL, 625 per Lord Reid; R v Ministry for Agriculture, Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, QBD, 722‐723 per Sedley J. 275 [2001] UKHL 23, [2003] 2 AC 295, para 143 per Lord Clyde. See also R v Secretary of State for the Home Department, ex p Venables [1998] AC 407, HL, 496‐497 per Lord Browne‐Wilkinson. 276 A striking example of this is R (Equality and Human Rights Commission) v Prime Minister [2011] EWHC 2401 (Admin), [2012] 1 WLR 1389.


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policies on the exercise of specific decision‐making functions. This tendency is

discernable in three main areas:

(1) the imposition of a duty to have policies in certain circumstances;

(2) the imposition of a duty to publish policies; and

(3) the role of the courts when interpreting policies.

7. However, there remains at least one area where the courts remain reluctant to

intervene: that of the powers of public bodies to change their policies over time.

A duty to have a policy in certain circumstances

8. Legislation might provide that a public body has a duty to adopt a policy as to how it

will exercise a discretion. Absent such a statutory duty, however, it is unlikely that

the common law will impose a duty on a public body to have a policy. Although it

has on occasion been suggested that in certain circumstances it may be irrational for

a public body not to have a policy as to how it will exercise a discretion,277 the

circumstances where that will be the case are likely to be extremely rare.

9. However, in cases where a public authority278 has a power, the exercise of which

involves interference with an individual’s Convention rights, usually it will only be

able to justify such an interference (assuming the relevant interference is capable of

justification under the Convention) if it is “prescribed by law” or “in accordance with

the law”.279 This requirement will only be met if the law as to the relevant power is

sufficiently accessible to the individual and sufficiently precise to enable him or her

to understand its scope and foresee the consequences of his or her actions so that

he or she can regulate his or her conduct accordingly.280

277 R v North West Lancashire Health Authority, ex p A [2000] 1 WLR 977, CA, 991 per Auld LJ (Auld LJ’s comments were made in the context of the desirability of health authorities having policies as to how they would allocate funding for different types of medical treatment). See also In re Findlay [1985] 1 AC 318, HL, 335 per Lord Scarman, where in the context of the Secretary of State’s power to release long‐term prisoners on parole, he commented that he had “difficulty in understanding how a Secretary of State could properly manage the complexities of his statutory duty without a policy”. 278 As defined by s 6 of the Human Rights Act 1998. 279 As to the former requirement, see arts 9(2), 10(2), 11(2) of the Convention; as to the latter, see art 8(2) of the Convention. Both phrases have the same meaning: Silver v United Kingdom (1983) 5 EHRR 347, ECtHR, para 85. 280 Sunday Times v United Kingdom (1979) 2 EHRR 245, ECtHR, para 49; R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] 1 AC 345, para 40 per Lord Hope.

10. Whilst a law that confers a discretion is not necessarily inconsistent with this

requirement, the scope of the discretion and the manner of its exercise must be

indicated with sufficient clarity to give the individual protection against arbitrary

interference.281 When considering whether this is the case, the courts will have

regard to any policy governing the exercise of the discretion282 and, in certain cases,

a public authority will be required to have a policy as to how it will exercise its

discretion. For example, in R (Purdy) v Director of Public Prosecutions,283 the House

of Lords held that the Director of Public Prosecutions was required by art 8 of the

Convention to have a policy on how he would exercise his discretion to prosecute in

cases of assisted suicide. Similar sentiments were expressed by Lord Phillips PSC in

the recent case of R (Lumba) v Secretary of State for the Home Department:284

“…it was necessary for the Secretary of State to have policies in relation to the exercise of her powers of detention of immigrants and that those policies had to be published. This necessity springs from the standards of administration that public law requires and by the requirement of article 5 that detention should be lawful and not arbitrary. Decisions as to the detention of immigrants had to be taken by a very large number of officials in relation to tens of thousands of immigrants. Unless there were uniformly applied practices, decisions would be inconsistent and arbitrary.”

11. In this context, it should be noted that the need for a policy to envisage exceptions is

likely to be particularly acute in cases where Convention rights are at stake: if a

policy contemplates an interference with a Convention right regardless of individual

circumstances, it may be difficult to justify that interference in certain cases.285 This

is because an interference with a Convention right can usually only be justified if the

interference is proportionate, and if a blanket approach is applied regardless of

281 Goodwin v United Kingdom (1996) 22 EHRR 123, ECtHR, para 31; Hasan and Chaush v Bulgaria (2000) 34 EHRR 1339, ECtHR, para 84; R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12, [2006] 2 AC 307, paras 31‐33 per Lord Bingham; R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] 1 AC 345, paras 41, 43 per Lord Hope; Gillan v United Kingdom (2010) 50 EHRR 1105, ECtHR, para 77. 282 See, for example, R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, [2006] 2 AC 148, para 34 per Lord Bingham, paras 91‐94 per Lord Hope, where the combination of a non‐statutory policy adopted by the public authority and statutory guidance to public authorities issued by the Secretary of State was sufficient to comply with requirements of the Convention. See also S v United Kingdom (2009) 48 EHRR 50, ECtHR, para 97, where the European Court of Human Rights appears to have treated guidelines issued by the Association of Chief Police Officers as forming part of the “law” governing the retention of biometric material by police forces; Gillan v United Kingdom (2010) 50 EHRR 1105, ECtHR, para 78, where the European Court of Human Rights seems to have accepted that a code of practice governing stop and search powers formed part of the “law” for the purposes of art 8 of the Convention. 283 [2009] UKHL 45, [2010] 1 AC 345. 284 [2011] UKSC 12, [2012] 1 AC 245, para 302 285 R (P) v Secretary of State for the Home Department [2001] EWCA Civ 1151, [2001] 1 WLR 2002, paras 99‐106.


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individual circumstances, then it will be more difficult to persuade a court that the

interference is proportionate.286

A duty to publish policies

12. Legislation may require that a policy be published. However, where there is no such

requirement (such as where a policy is non‐statutory), the question arises of

whether there is a duty to publish the policy (or, at the least, to make it available to

individuals who may be affected by the exercise of the relevant discretion). There

has been a clear trend of the courts requiring the publication of policies, an

approach that has recently been confirmed by the Supreme Court in R (Lumba) v

Secretary of State for the Home Department.287

13. In Lumba, the Supreme Court considered a situation where the Home Office had

applied an unpublished policy which involved a presumption against releasing

certain categories of individual from immigration detention, contrary to a published

policy which stated that the opposite presumption would be applied. The Court of

Appeal had held that there is no general rule of law that a policy must be published

or, if it is not, that the policy can be categorised as unlawful for that reason alone,288

and held that the only legal difficulty that arose from the non‐publication of the

applicable policy was the fact that the Secretary of State acted inconsistently with

her published policy.289 The Supreme Court held that the Court of Appeal were

wrong.

14. The Supreme Court held that the rule of law calls for a transparent statement by the

executive of the circumstances in which it will exercise statutory discretions,

particularly where they are broad discretions affecting individuals’ fundamental

rights.290 Lord Dyson JSC, who gave the leading judgment, expressly endorsed291 the

statement in R (Salih) v Secretary of State for the Home Department that for a public

body to withhold information about its policy as to how a statutory power will be

286 See, for example, S v United Kingdom (2009) 48 EHRR 50, ECtHR, paras 101‐126. 287 [2011] UKSC 12, [2012] 1 AC 245. 288 R (WL (Congo)) v Secretary of State for the Home Department [2010] EWCA Civ 111, [2010] 1 WLR 2168, para 70. 289 Ibid, para 79. 290 [2011] UKSC 12, [2012] 1 AC 245, para 34 per Lord Dyson JSC. 291 Ibid, para 36 per Lord Dyson JSC.

exercised is, in general, inconsistent with the constitutional imperative that the law

be open and accessible.292 This is particularly likely to be so where the policy in

effect defines the scope of an entitlement, where the subject matter of the relevant

decision is important to the individual, or where human rights are engaged.293

15. In particular, the Supreme Court held that the fact that an individual has a right to

have his or her case considered pursuant to a lawful policy gives rise to a correlative

right to know what that policy is so that he or she can make meaningful

representations in relation to it or challenge a decision taken pursuant to it.294 This

theme that fairness may require that a policy be published, so that an individual has

the opportunity to know the basis on which a decision in his or her case will be

reached and so that he or she can address the public body as to the policy’s

application to his or her case, has been recognised in earlier cases.295 In Lumba, Lord

Dyson JSC held296 that the comments of Lord Steyn in R (Anufrijeva) v Secretary of

State for the Home Department in relation to notification of decisions were equally

applicable to policies:297

“Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice.”

16. There were a number of features about Lumba which made it particularly likely that

the courts would hold that there was a duty to publish the relevant policy, not least

the fact that the policy related to the particularly sensitive issue of detention, an

area where the fundamental rights of individuals are engaged, and the fact that the

unpublished policy directly contradicted a published policy. Further, the point as to

the publication of the policy was in fact conceded by the Secretary of State in the

292 R (Salih) v Secretary of State for the Home Department [2003] EWHC 2273 (Admin), para 52 per Stanley Burnton J. 293 As was the case in R (Salih) v Secretary of State for the Home Department [2003] EWHC 2273 (Admin): see paras 49‐51 per Stanley Burnton J. In relation to the publication of policies affecting individual’s entitlements, see also R v Secretary of State for Education and Employment, ex p Begbie [2000] 1 WLR 1115, CA, 1132 per Sedley LJ. 294 R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245, para 35 per Lord Dyson JSC, para 190 per Lord Walker JSC, para 302 per Lord Phillips PSC. 295 See, for example, R v Criminal Injuries Compensation Board, ex p Ince [1973] 1 WLR 1334, CA, 1345 per Megaw LJ; R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409, para 58 per Laws LJ. 296 [2011] UKSC 12, [2012] 1 AC 245, para 35 per Lord Dyson JSC. 297 [2003] UKHL 36, [2004] 1 AC 604, para 26 per Lord Steyn.


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Supreme Court,298 and therefore the judgments on this point are, strictly speaking,

obiter. Despite these potentially distinguishing features, it is nonetheless likely that

Lumba will be taken as an authoritative statement of the law in this context.

Accordingly, it must be likely that the courts will require the publication of policies

that govern the exercise of discretions affecting individuals, unless there are

compelling reasons not to publish.299

17. In cases where an interference with a Convention right can only be justified if the

interference is “in accordance with the law” or “prescribed by law”,300 the law must

be sufficiently accessible to the individual.301 Accordingly, where a policy as to how

an administrative discretion will be exercised constitutes part of the “law” for that

purpose, the policy will be subject to the same requirement of accessibility. It is

difficult to see how this requirement could be satisfied unless the relevant policy is

published.302

18. In Lumba, the Supreme Court did not go so far as to hold that, where a policy must

be published, every detail of it must be published.303 In particular, it held that it was

not necessary to publish details which are irrelevant to the substance of decisions

made pursuant to a policy.304 However, it held that sufficient details of a policy must

be published so that a person who is affected by its operation knows what he or she

need to know in order to make informed and meaningful representations to the

public body before a decision is made.305

The role adopted by the courts when interpreting policies

298 [2012] 1 AC 245, para 27 per Lord Dyson JSC. 299 In Lumba, Lord Dyson JSC gave as an example policies where national security issues are in play: ibid, para 38. 300 As to the former requirement, see arts 9(2), 10(2), 11(2) of the Convention; as to the latter, see art 8(2) of the Convention. Both phrases have the same meaning: Silver v United Kingdom (1983) 5 EHRR 347, ECtHR, para 85. 301 Sunday Times v United Kingdom (1979) 2 EHRR 245, ECtHR, para 49; R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] 1 AC 345, para 40 per Lord Hope. 302 R (Nadarajah) v Secretary of State for the Home Department [2003] EWCA Civ 1768, [2004] INLR 139, paras 54, paras 64‐67. In R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] 1 AC 345, it was held that the Director was required not just to adopt a policy as to how he would exercise his discretion to prosecute in cases of assisted suicide, but to publish it: see para 16 per Lord Phillips, para 56 per Lord Hope. 303 [2011] UKSC 12, [2012] 1 AC 245, para 38 per Lord Dyson JSC. 304 This accords with the underlying rationale for requiring publication. 305 [2011] UKSC 12, [2012] 1 AC 245, para 38 per Lord Dyson JSC.

19. It is trite law that a public body must properly interpret and understand a policy

applied by it: if it does not, it will not have had proper regard to that policy.306 This

raises the issue of how the courts should approach the interpretation of policies.

20. Generally, if a question arises as to whether a public body has properly interpreted a

policy, the court will itself determine the true meaning of that policy. This is

sometimes known as the Raissi approach, after R (Raissi) v Secretary of State for the

Home Department,307 where the Court of Appeal adopted this approach to the

terms of a scheme to pay ex gratia compensation to persons detained after a

wrongful conviction.308

21. The principled justification for this approach is that an objective rather than a

subjective approach to interpretation produces greater consistency and

transparency in the application of the policy, the promotion of such consistency and

transparency being one of the reasons for having a policy or guidance in the first

place.309 As Lord Steyn has said:310

“…in respect of the many kinds of ‘soft laws’ with which we are now familiar, one must bear in mind that citizens are led to believe that the carefully drafted and considered statements truly represent government policy which will be observed in decision‐making unless there is good reason to depart from it. It is an integral part of the working of a mature process of public administration. Such policy statements are an important source of individual rights and corresponding duties. In a fair and effective public law system such policy statements must be interpreted objectively in accordance with the language employed by the minister. The citizen is entitled to rely on the language of the statement, seen as always in its proper context. The very reason for making the statement is to give guidance to the public. The public body, here a minister, may depart from the policy but until he has done so, the citizen is entitled to ask in a court of law whether he fairly comes within the language of the publicly announced policy. That question, like all questions of interpretation, is one of law. And on such a question of law it necessarily follows that the court does not defer to the minister: the court is bound to decide such a question for itself, paying, of course, close attention

306 Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P&CR 86, QBD, 94 per Woolf J; Horsham District Council v Secretary of State for the Environment [1992] 1 PLR 81, CA, 88 per Nolan LJ, 92 per McCowan LJ. See also Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, para 17 per Lord Reed JSC. 307 [2008] EWCA Civ 72, [2008] QB 836. 308 The compensation scheme under consideration in Raissi was not, strictly speaking, a policy. Rather, it was a non‐statutory scheme introduced pursuant to the royal prerogative, and there are important differences between such schemes and policies: see R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213, paras 191‐194 per Mummery LJ. 309 R v Secretary of State for the Home Department, ex p Urmaza [1996] COD 479, QBD, 484 per Sedley J. 310 In re McFarland [2004] UKHL 17, [2004] 1 WLR 1289, para 24. Note that In re McFarland concerned a non‐statutory scheme and that Lord Steyn considered that he was departing from the majority view in this context.


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to the reasons advanced for the competing interpretations. This is not to say that policy statements must be construed like primary or subordinate legislation. It seems sensible that a broader and wholly untechnical approach should prevail. But what is involved is still an interpretative process conducted by a court which must necessarily be approached objectively and without speculation about what a particular minister may have had in mind.”

22. This approach has been adopted in the contexts of guidance to health authorities on

family planning services,311 guidance to the Director of Passenger Rail Franchising,312

the policy of the Secretary of State as to how he would set the penal element of a

prison sentence,313 and guidance as in the context of payments between police

forces.314

23. However, until very recently, an exception to this general rule was thought to apply

in the field of town and country planning. In that context, local planning authorities

are required to have regard to an extensive range of policies and guidance which are

often not intended to be legally binding documents in the strict sense, which often

utilise concepts and expressions which are not susceptible to a hard‐edged

interpretative approach, and which envisage exercises of value judgment.315

Following the decision of the Court of Appeal in R v Derbyshire County Council, ex p

Woods,316 in cases arising in this field the courts had usually merely asked

themselves whether the public body had adopted an interpretation of the relevant

policy or guidance that it was capable, as a matter of law, of bearing.317

311 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, HL, 181 per Lord Scarman. 312 R v Director of Passenger Rail Franchising, ex p Save Our Railways (1996) CLC 589, CA, 601 per Sir Thomas Bingham MR. 313 R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539, HL, 569 per Lord Goff. 314 R v Secretary of State for the Home Department, ex p Lancashire Police Authority [1992] COD 161, QBD, 162 per Webster J. 315 Cranage Parish Council v First Secretary of State [2004] EWHC 2949 (Admin), [2005] 2 P&CR 23 (p 390), para 49 per Davis J. 316 [1998] Env LR 277, CA. 317 R v Derbyshire County Council, ex p Woods [1998] Env LR 277, CA, 290‐291 per Brooke LJ. See also R (Springhall) v Richmond upon Thames London Borough Council [2006] EWCA Civ 19, [2006] LGR 419, paras 7, 29 per Auld LJ; South Cambridgeshire District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 1010, [2009] PTSR 37, para 15 per Scott Baker LJ; and the review of relevant authorities in Cranage Parish Council v First Secretary of State [2004] EWHC 2949 (Admin), [2005] 2 P&CR 23 (p 390), paras 44‐48 per Davis J. Note, however, that in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, para 20 per Lord Reed JSC, the Supreme Court appeared to doubt that the ex p Woods case necessarily had the effect attributed to it.

24. However, this approach was not universally adopted,318 and in March this year, the

Supreme Court held that, at least in relation to a policy or guidance which forms part

of a statutory development plan, its proper interpretation is a matter of law for the

court, and not the relevant public body. The leading judgment in Tesco Stores Ltd v

Dundee City Council was given by Lord Reed JSC, who said:319

“[17] It has long been established that a planning authority must proceed upon a proper understanding of the development plan... The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by s 25 of the 1997 Act[320]… [18] In the present case, the planning authority was required by s 25 to consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departing from the plan. In order to carry out that exercise, the planning authority required to proceed on the basis of what Lord Clyde described as ‘a proper interpretation’ of the relevant provisions of the plan. We were however referred by counsel to a number of judicial dicta which were said to support the proposition that the meaning of the development plan was a matter to be determined by the planning authority: the court, it was submitted, had no role in determining the meaning of the plan unless the view taken by the planning authority could be characterised as perverse or irrational. That submission, if correct, would deprive ss 25 and 37(2)[321] of the 1997 Act of much of their effect, and would drain the need for a ‘proper interpretation’ of the plan of much of its meaning and purpose. It would also make little practical sense. The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision‐making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department…), policy statements should be interpreted

318 See, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P&CR 86, QBD, 93 per Woolf J. In Carpets of Worth Ltd v Wye Forest DC (1991) 62 P&CR 334, CA, the court itself determined the meaning of a circular issued by the Secretary of State. Further, attempts had been made to confine the scope of R v Derbyshire County Council, ex p Woods [1998] Env LR 277, CA: see, for example, R (Sainsbury’s Supermarkets Ltd) v First Secretary of State [2005] EWCA Civ 520, para 16. 319 [2012] UKSC 13, paras 17‐21. 320 I.e. s 25 of the Town and Country Planning (Scotland) Act 1997, the Scottish equivalent to s 38(6) of the Planning and Compulsory Purchase Act 2004. 321 The Scottish equivalent to s 70(2) of the Town and Country Planning Act 1990.


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objectively in accordance with the language used, read as always in its proper context. [19] …[P]lanning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.

… [21] A provision in the development plan which requires an assessment of whether a site is ‘suitable’ for a particular purpose calls for judgment in its application. But the question whether such a provision is concerned with suitability for one purpose or another is not a question of planning judgment: it is a question of textual interpretation, which can only be answered by construing the language used in its context. In the present case, in particular, the question whether the word ‘suitable’, in the policies in question, means ‘suitable for the development proposed by the Applicant’, or ‘suitable for meeting identified deficiencies in retail provision in the area’, is not a question which can be answered by the exercise of planning judgment: it is a logically prior question as to the issue to which planning judgment requires to be directed.”

25. In reaching this conclusion, Lord Reed JSC expressly disapproved of the way in which

the Court of Appeal’s decision in ex p Woods had been understood and applied.322

26. The only other reasoned judgment in Dundee City Council was given by Lord Hope

DPSC, who agreed with Lord Reed JSC:323

“We are concerned here with a particular provision in the planning documents to which the Respondents are required to have regard by the statute. The meaning to be given to the crucial phrase is not a matter that can be left to the judgment of the planning authority. Nor…is the interpretation of the policy which it sets out primarily a matter for the decision‐maker… I agree with Lord Reed that the issue is one of law, reading the words used objectively in their proper context.”

27. Although the Supreme Court’s decision in Dundee City Council related only to

policies and guidance forming part of a statutory development plan, it is likely that a

similar approach will in the future be adopted to other policies and guidance in the

town and country planning field. Much of the Supreme Court’s reasoning for

adopting the approach that it did applies equally to other types of policies and

guidance, and in the light of the approach adopted by the courts to policies and

322 [2012] UKSC 13, para 20. 323 Ibid, para 35.

guidance more generally, it is unlikely that any exception to the general rule will

survive in the field of town and country planning.

28. There is a line of authority in the immigration context suggesting the courts will

adopt a subjective approach to interpretation similar to that previously adopted in

the town and country planning field. In particular, it has on occasion been held that

the courts will not themselves seek to determine the meaning of the Secretary of

State’s extra‐statutory policies,324 but will only interfere with the Secretary of State’s

interpretation of such a policy if that interpretation is not one which the Secretary of

State could reasonably adopt.325 However, it is difficult to see this exception to the

general rule being applied in the future,326 as the principled justification for adopting

an objective approach to the interpretation of policies applies just as much, if not

more so, in the immigration context as in other contexts:327 immigration decisions

can be of acute importance to individuals and immigration policies may be applied

across very many cases.

29. When considering what a policy means, or is properly capable of meaning, a court

will read it as a whole and in accordance with the natural and ordinary meaning of

the words used.328 A policy will be fairly construed in the light of the context in

which it was published,329 having regard to its purpose and underlying objective.330

In particular, the courts will not adopt the same technical approach that they adopt

324 I.e. policies and guidance other than the Immigration Rules. 325 See, for example, R v Secretary of State for the Home Department, ex parte Ozminnos [1994] Imm AR 287, QBD, 292‐293 per Auld J; Gangadeen v Secretary of State for the Home Department [1998] Imm AR 106, CA, 115 per Hirst LJ; R (Gashi) v Secretary of State for the Home Department [2003] EWHC 1198 (Admin), paras 13‐15 per Maurice Kay J. Cf R v Secretary of State for the Home Department, ex p Urmaza [1996] COD 479, QBD, 484‐485 per Sedley J, which was doubted in Gangadeen v Secretary of State for the Home Department [1998] Imm AR 106, CA, 115 per Hirst LJ. 326 The question as to which approach should be applied to extra‐statutory immigration polices was left open in R (SS) v Secretary of State for the Home Department [2008] EWHC 2069 (Admin), paras 18‐22 per Blair J. However, in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299, Lord Hope commented (at para 36) that it was for the courts, and not the Secretary of State, to interpret statements in the Secretary of State’s Operational Enforcement Manual regarding the detention of individuals liable to deportation. 327 The adoption of an objective approach in this context must be even more likely in the light of the Supreme Court’s decision in Dundee City Council that such an approach should be adopted in the field of town and country planning. 328 Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48, para 10 per Lord Brown JSC. 329 Carpets of Worth Ltd v Wye Forest DC (1991) 62 P&CR 334, CA, 345 per Purchas LJ; R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin), [2003] 1 FLR 484, para 158 per Munby J. 330 Cranage Parish Council v First Secretary of State [2004] EWHC 2949 (Admin), [2005] 2 P&CR 23 (p 390), para 50 per Davis J.


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in relation to, for example, the interpretation of statutes or contracts.331 For

example, in the case of a circular issued by the Secretary of State giving guidance as

to payments between police forces, it was held that it had to be construed in the

way in which an educated person, acquainted with the context, would construe it,

by giving it a common sense meaning and not by applying the fine legal rules of

construction that would be applied to a statute.332

Making changes to policies

30. The courts have long recognised the important principle that the executive is

ordinarily entitled to change its policies.333 As Lord Diplock said in Hughes v

Department of Health and Social Security:334

“Administrative policies may change with changing circumstances, including changes in the political complexion of governments. The liberty to make such changes is something that is inherent in our constitutional form of government.”

31. Accordingly, subject to any particular statutory requirements and subject to it acting

in accordance with its ordinary public law duties, a public body will usually be

entitled to alter any policy issued by it.335

32. Insofar as public law duties are concerned, the most likely source of an impediment

to a public body changing its policy is the doctrine of legitimate expectation: in

certain cases the consistent application of a policy by a public body will give rise to a

legitimate expectation on the part of an individual that, notwithstanding the fact

331 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, HL, 180 per Lord Scarman; R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539, HL, 576‐577 per Lord Browne‐Wilkinson (dissenting as to the result); Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48, para 10 per Lord Brown JSC; Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, para 19 per Lord Reed JSC. 332 R v Secretary of State for the Home Department, ex p Lancashire Police Authority [1992] COD 161, QBD, 162 per Webster J. 333 See, for example, In re Findlay [1985] AC 318, HL, 338 per Lord Scarman; R v Secretary of State for the Home Department, ex p Ruddock [1987] 1 WLR 1482, QBD, 1497 per Taylor J; R v Secretary of State for Health, ex p United States Tobacco International Inc [1992] 1 QB 353, DC, 369, per Taylor LJ, 372 per Morland J; R v Secretary of State for Transport, ex p Richmond‐upon‐Thames London Borough Council [1994] 1 WLR 74, QBD, 93 per Laws J; R v Ministry of Agriculture Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, QBD, 718 per Sedley J; R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139, [2008] ACD 7, para 43 per Sedley LJ; R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, para 41 per Laws LJ. 334 [1985] AC 776, HL, 788 per Lord Diplock. 335 See, for example, R v Secretary of State for the Home Department, ex p Hargreaves [1997] 1 All ER 397, CA, 412 per Hirst LJ.

that the public body has purported to change its policy, the previous policy will

continue to be applied in that individual’s case.

33. However, the mere fact that a public body adopts a particular policy will not,

without more,336 give rise to a procedural legitimate expectation that it will consult

before changing that policy or a substantive legitimate expectation that it will not

change the policy at all.337 This is the case even where the policy is applied over an

appreciable period of time or where it is not expressed to be time‐limited. In light of

the important principle that the executive is ordinarily entitled to make and to

change policy, if an individual asserts a legitimate expectation that is said to arise

out of the application of a general policy, it will usually be in a context where the

general policy itself may change.338

34. It is only if the relevant policy has had a “pressing and focussed” impact on the

individual seeking to rely upon it that it will give rise to a procedural legitimate

expectation that the individual will be consulted before the policy is changed. This

will only arise in exceptional situations339 and will at least require there to be an

individual or group who in reason have substantial grounds to expect that the

substance of the relevant policy will continue to operate for their particular benefit,

if not forever then at least for a reasonable period to cushion any changes.340

35. Similarly, for a policy to give rise to a substantive legitimate expectation that it will

not be changed, it must amount to a “pressing and focussed” assurance, directed at

a particular individual or group, by which the policy’s continuance is ensured.341

36. It is likely that the term “pressing” in this context relates to the force with which the

representation is made: the more forceful the promise and the more it is repeated

or reinforced, the more likely it is that it will give rise to a substantive legitimate

336 The position may be different if the policy gives some assurance as to the public body’s future conduct, in which case it may amount to an express representation. 337 R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, paras 34‐35, 49 per Laws LJ. Cf R v Secretary of State for the Home Department, ex p Asif Mahmood Khan [1984] 1 WLR 1337, CA. 338 R v Ministry of Agriculture Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 741, 729; Odelola v Secretary of State for the Home Department [2008] EWCA Civ 308, para 2 per Buxton LJ. 339 R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, para 41 per Laws LJ. 340 Ibid, para 49 per Laws LJ. 341 Ibid, paras 43, 46 per Laws LJ.


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expectation.342 For a representation to be “focussed”, it must usually have been

confined to one person or a few people, giving the representation the character of a

contract.343 Again, this will only arise in exceptional circumstances.344

37. As an alternative to the above analysis, it has been suggested that entitlement of the

executive to make and to change policy means that the fact that a particular policy is

adopted by a public body cannot give rise to a substantive legitimate expectation

that such a policy will not be changed.345 Instead, the most that can legitimately be

expected as a matter of substance is that any change of policy will not be

implemented in such a way that unfairly frustrates any reliance that an individual

has legitimately placed on it.346 Such a substantive legitimate expectation would

focus on the manner, rather than the fact, of the change of policy and it may require

the public body to take steps such as giving notice of the change, making transitional

provisions, or providing for exceptions.347

38. Where a public body promulgates a policy to be applied by other public bodies (such

as central government guidance), it is highly unlikely that the application of such a

policy by those other public bodies could of itself give rise to legitimate expectations

342 Although in Bhatt Murphy, Laws LJ did not explain what he meant by “pressing”, he cited R v North and East Devon Health Authority, ex p Coughlan [1999] EWCA Civ 1871, [2001] QB 213, para 86 (where the Court of Appeal referred to a promise that was made on a number of occasions in precise terms and which was repeated and confirmed in order to provide reassurance) as an illustration of the type of “pressing and focussed” representation that he had in mind. 343 R v North and East Devon Health Authority, ex p Coughlan [1999] EWCA Civ 1871, [2001] QB 213, paras 59, 69; R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, para 46 per Laws LJ; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2008] 3 WLR 955, para 134 per Lord Carswell. This approach is consistent with references in earlier authorities to it being an abuse of power for a decision‐maker to act in a manner that was analogous to a breach of contract: e.g. In re Preston [1985] AC 835, HL, 852 per Lord Scarman, 866‐867 per Lord Templeman; R v Inland Revenue Commissioners, ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, DC, 1569 per Bingham LJ; R v Secretary of State for the Home Department, ex p Patel [1991] Imm AR 14, 21. Cf R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin), DC, para 44. For an example of a case where the representation was not confined to one person or a few people (albeit that it was made to a defined group), see R (HSMP Forum Ltd) v Secretary of State for the Home Department [2008] EWHC 644 (Admin), para 38. 344 R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, para 41 per Laws LJ. 345 Ibid, para 68 per Sedley LJ. 346 R v Ministry of Agriculture Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, 729‐731; R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, para 68 per Sedley LJ. See also R v North and East Devon Health Authority, ex p Coughlan [1999] EWCA Civ 1871, [2001] QB 213, para 82. 347 R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, para 70 per Sedley LJ. See also R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139, [2008] ACD 7, para 19 per Sedley LJ and R v Ministry of Agriculture Fisheries and Food, ex p Hamble (Offshore) Fisheries Ltd [1995] 2 All ER 714, 735.

as against them that, where there is a change in guidance, they will nonetheless

continue to follow previous guidance.348

39. Where a public body changes its policy in circumstances where, for example, an

individual has already made an application pursuant to the previous policy, the

question of whether the new policy or the previous policy should be applied when

reaching a decision will generally depend on the proper interpretation of the new

policy.349 However, in certain cases, the common law presumption against

retrospectivity or analogous principles of fairness may import a presumption that

the new policy should be interpreted in a way that requires that the previous policy

be applied.350

14 June 2012

348 R (WL (Congo)) v Secretary of State for the Home Department [2010] EWCA Civ 111, [2010] 1 WLR 2168, para 58. 349 Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230, para 4 per Lord Hoffmann, para 55 per Lord Neuberger (considering the Immigration Rules). 350 Ibid, paras 31‐35 and 39 per Lord Brown, paras 48‐55 per Lord Neuberger.


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Slide 1

www.4-5.co.uk

Policies: the expanding role of the courts

20 June 2012

Jonathan Moffett

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 2 Introduction

• Generally public bodies are entitled to adopt policies.

• Key principle in relation to application of policies is avoiding rigidity.

• Courts have become more interventionist in certain respects:(1) the duty to have policies,(2) the duty to publish policies, and(3) the interpretation of policies.

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 3 The duty to have a policy

• A common law duty to have a policy will arise only exceptionally.

• The ECHR may necessitate a policy if it is necessary to ensure:(1) that the law is sufficiently accessible, and(2) the scope of a discretion is sufficiently precise.

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 4 The duty to publish policies

• R (Lumba) v Secretary of State for the Home Department: recognition of a general duty to publish policies.

• Rationale for requiring publication of policies.

• ECHR may also require publication of policies.

• Extent of publication required.

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 5 Interpretation of policies

• “Subjective” v “objective” approach.

• General rule is that the objective approach applies.

• Former exception for planning policies has been overturned: Tesco Stores Ltd v Dundee City Council.

• Possible exception for non-statutory immigration policies unlikely to survive.

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 6 Making changes to policies

• Courts recognise important principle that the executive should be entitled to change policy.

• Legitimate expectation that policy will not be changed will arise only rarely:• policy must amount to a “pressing and focussed”

assurance.

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________


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Slide 7 Conclusion

• Common threads:• fairness,• openness, and• accessibility.

Jonathan Moffett020 7404 5252

[email protected]

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________


123


JUDICIAL REVIEW AND HUMAN RIGHTS: AN UPDATE SARAH HANNETT351

Introduction

1. The aim of this talk is to provide an overview of the key decisions in the last 12

months.

2. It focuses, first, on recent judicial consideration of section 2 of the Human

Rights Act 1998 (“the 1998 Act”).

3. The talk considers, second, decisions on individual rights contained in the

European Convention on Human Rights (“the ECHR”) handed down in the last

twelve months. The main focus, for reasons of time, is on decisions of the

Supreme Court and the Grand Chamber of the European Court of Human

Rights (“the ECtHR”) although some decisions of the Chamber, the Court of

Appeal and the Administrative Court are considered.

4. It follows that this talk is far from being a comprehensive account of all human

rights case in the last twelve months: rather, it is aimed at picking out

highlights.

Section 2 of the 1998 Act

5. Section 2(1) provides:

“A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any... judgment... of the European Court of Human Rights.”

6. In R (Alconbury) v. Secretary of State for the Environment, Transport and the

Regions [2001] UKHL 23; [2003] 2 AC 295 Lord Slynn articulated the “mirror

principle” (at §26):

“... Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take

351 This talk has borrowed heavily from an unpublished article by Richard Clayton QC and an unpublished book chapter by Andrew Sharland.

account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence.” (emphasis added)

7. Similarly, in R (Ullah) v. Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323

Lord Bingham suggested that domestic courts should not, when interpreting

the ECHR, go beyond Strasbourg jurisprudence as the meaning of the ECHR

should be uniform throughout the states that are party to it.

8. The extent to which domestic courts are bound as a result of section 2 to

follow decisions of the European Court of Human Rights has proved to be a

difficult question. Indeed when Lord Phillips and Lord Judge gave evidence to

the Select Committee on the Constitution in October 2011, they expressed

conflicting views. The former suggested that domestic courts were obliged to

follow the Strasbourg case law. The latter argued that, having taken account of

the decisions of the ECtHR, our courts are not bound to follow them. Indeed, in

Sugar v. BBC [2012] UKSC 4 Lord Wilson stated (at §59, Lord Mance agreed

with the observation at §113):

“I would welcome an appeal, unlike the present, in which it was appropriate for the court to consider whether, of course without acting extravagantly, it might now usefully do more than to shadow the ECtHR in the manner hitherto suggested—no doubt sometimes in aid of the further development of human rights and sometimes in aid of their containment within proper bounds.”

9. The rationale for the mirror principle has been identified as follows:

(i) the need to give practical recognition to the principles laid down by

the ECtHR, it being the highest judicial authority on the

interpretation of the Convention rights, see Lord Bingham in Kay v.

Lambeth London Borough Council [2006] 2 AC 465 (at §28).

(ii) the purpose of the 1998 Act is not to enlarge the rights or remedies of

those in the UK whose Convention rights have been violated, but to


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enable those rights and remedies to be asserted and enforced

domestically and not only by recourse to Strasbourg, see Lord

Bingham in R (SB) v. Denbigh High School [2007] 1 AC 199 (at §29).

10. There are a number of problems in applying the mirror principle:

(i) The case law of the European Court is not always clear: a recent

example of this is the decision of the Supreme Court in Re

McCaughey [2011] UKSC 20; [2012] AC 725. The Supreme Court

held that a Grand Chamber decision prevailed over an earlier

decision of the House of Lords. Lord Hope commented that only

the most starry eyed admirer of the Strasbourg Court could

describe the guidance the Grand Chamber offered as clear (at §73).

Baroness Hale said that the Grand Chamber judgment was difficult

to understand (at §89), and Lord Dyson described it as extremely

obscure (at §§130‐132). Even more recently in Gale v. Serious

Organised Crime Agency [2011] UKSC 49; [2012] 2 All ER 1. Lord

Philips P and Lord Brown said that it would be highly desirable that

the issues the appeal raised be considered by the Grand Chamber

to clarify and rationalise what Lord Brown called “this whole

confusing area of the Court’s jurisprudence” (at §117).

(ii) The domestic courts have not been consistent about what kind of

Strasbourg judgments should, on Ullah principles, be applied to the

1998 Act. A judgment will be ‘clear and constant’ if it has

repeatedly been applied in subsequent cases (see Cadder v. Her

Majesty’s Advocate [2010] 1 WLR 2601, per Lord Hope at §47) as

will a unanimous or near unanimous Grand Chamber decision (R

(Anderson) v. Secretary of State for the Home Department [2003] 1

AC 837 per Lord Bingham at §18). On the other hand, in an evolving

field, it may be necessary to consider whether ‘relatively elderly

jurisprudence reflects the result that the [ECtHR] would still reach’

(see Secretary of State for Work and Pensions v. M [2006] AC 91,

per Lord Mance at §131). But Lord Brown indicated in Horncastle

[2009] 2 AC 373 (at §§113‐121) that there is no need to apply a

Chamber decision which was due to be reargued before the Grand

Chamber (especially in a case where he questioned its reasoning).

(iii) Nor is it clear whether a Grand Chamber decision must be

followed. In Manchester City Council v. Pinnock [2011] 2 AC 104

Lord Neuberger contemplated the possibility of departing from a

decision of the Grand Chamber (at §48) as did Baroness Hale in Re

Caughey [2011] 2 WLR 1279 (at §93). In Cadder v. Her Majesty’s

Advocate [2010] 1 WLR 2601 the Supreme Court reiterated the

obligation to follow a Grand Chamber decision.

11. Further, the mirror principle has not been consistently applied by the domestic

courts. In R v. Chief Constable of South Yorkshire Police, ex p. LS and Marper

[2004] UKHL 39 Lord Steyn suggested that whilst Article 8(1) should receive a

uniform interpretation throughout the member states, when one moves to

consider the question of objective justification under Article 8(2), the cultural

traditions in the United Kingdom are relevant (at §27). In R (Animal Defenders

International) v. Secretary of State for Culture, Media and Sport [2008] UKHL 15

Lord Scott suggested that section 2 of the 1998 Act contemplated the

possibility of a divergence in view between domestic courts and the European

Court of Human Rights (at §44). This suggestion was expressly rejected by Lord

Bingham (at §37) and by Baroness Hale (at §14).

12. The House of Lords in Re G (Adoption: unmarried couple) [2008] UKHL 38;

[2009] 1 AC 173 held that a domestic court can go beyond the protection

afforded by the existing Strasbourg jurisprudence in two situations:

(i) if the domestic court is of the view that although the jurisprudence

does not currently provide protection, if the matter were to be


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considered by the European Court, such protection would be likely

to be provided; and

(ii) if the European Court would regard the matter as within a state’s

margin of appreciation and thus conclude that there is no violation.

13. More recently in Ambrose v Harris [2011] 1 WLR 2435 the Supreme Court took

a more cautious approach. The Supreme Court declined to hold that a suspect

is entitled to access to a lawyer before he is placed in detention; and the Court

held that the Strasbourg case law did not require such a conclusion, expressing

the view that an impending Strasbourg application dealing with the very point

made it wise to wait for the judgment. In re G was not cited to the Court or

discussed in the opinions.

14. The last word on this was the recent decision of the Supreme Court in Rabone

v. Pennine Care NHS Trust [2012] UKSC 2; [2012] 2 All ER 381 the Supreme

Court held that the defendant had an operational duty, under article 2 of the

ECHR, to take reasonable steps to prevent the suicide of the claimants’

daughter, a voluntary patient at the defendant Trust. The ECtHR had not

previously considered whether article 2 applied to a voluntary psychiatric

patient. The ECtHR and domestic courts had, however, found that there was

on operational duty on the state to take reasonable steps to protect prisoners,

those who were in administrative detention and those detained under the

Mental Health Act 1983. In contrast, the ECtHR had held that there was no

operational duty under article 2 in the generality of medical negligence cases.

15. Lord Brown noted that the decision of the Supreme Court went further than

the evolving jurisprudence of the ECtHR as no Strasbourg decision has equated

the position of voluntary patients with that of detained patients in relation to

article 2 (at §111). Lord Brown stated, however, that he did not regard the

Supreme Court’s decision to be contrary to the Ullah principles. He observed

(at §112):

“Nobody has ever suggested that, merely because a particular question which arises under the convention has not yet been specifically resolved by the Strasbourg jurisprudence, domestic courts cannot determine it—in other words in other words that it is necessary to await an authoritative decision of the ECtHR more or less directly in point before finding a Convention violation. That would be absurd. Rather what the Ullah principle importantly establishes is that the domestic court should not feel driven on Convention grounds unwillingly to decide a case against a public authority (which could not then seek a corrective judgment in Strasbourg) unless the existing Strasbourg case law clearly compels this. Indeed, the more reluctant the domestic court may be to recognise in the circumstances a violation of the Convention, the readier it should be to reject the complaint unless there exists... an authoritative judgment of the Grand Chamber plainly decisive of the point at issue. If, however, the domestic court is content (perhaps even ready and willing) to decide a Convention challenge against a public authority and believes such a conclusion to flow naturally from existing Strasbourg case law (albeit that it could be regarded as carrying the case law a step further), then in my judgment it should take that further step. And that, indeed, is to my mind precisely the position in this very case. Just as, I may add, it was the position in Limbuela [treatment of asylum seekers], In re G [discrimination prohibiting unmarried parents from adopting children] and EM [the impact of Article 8 on the rights of a mother and child facing expulsion].

16. It is plain from the case law that no coherent or consistent approach to the

mirror principle can be discerned.


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Article 3: freedom from torture, inhuman or degrading treatment or punishment

17. Article 3 places a negative obligation on a State to refrain from torture or

inhuman or degrading treatment or punishment. Article 3 also requires a State

to take adequate steps to prevent individuals from suffering treatment that

would violate Article 3 at the hands of private individuals. It may also extend to

requiring the State to take steps to prevent an individual within its jurisdiction

from suffering treatment contrary to Article 3 outside its jurisdiction.

18. In MS v. United Kingdom (2012) Times, 14 May the European Court of Human

Rights held that the detention of a mentally ill man in police custody for more

than three days, without appropriate psychiatric treatment, amounted to a

breach of Article 3. The Court accepted that the treatment arose, in essence,

from unintentional delay in the provision of services. This delay was less than

31 hours.

19. It is notable that the domestic courts had dismissed MS’s claim on the basis

that it was unrealistic to suggest that a delay of less than 31 hours in some way

caused suffering of a severity sufficient to engage Article 3. But the ECtHR

found that, even though there had been no intention to humiliate MS, that the

conditions he had been required to endure had reached the threshold of

degrading treatment for the purposes of Article 3.

20. In Vinter v. United Kingdom [2012] Times, 8 February the European Court held

that imprisonment of a convicted murdered for life, with no hope of release,

did not amount to inhuman and degrading treatment contrary to article 3 of

the ECHR. The Court stated that although matters of appropriate sentencing

largely fell outside the scope of the Convention, a grossly disproportionate

sentence could amount to ill‐treatment, contrary to Article 3. But “gross

disproportionality” was a strict test and it would only be on rare and unique

occasions that the test would be met. In the instant case, given the gravity of

the murders for which the applicants had been convicted, the whole life

sentences were not grossly disproportionate. Further, none of the applicants

had demonstrated that their continued incarceration served no legitimate

penological purpose.

21. In Mousa v. Secretary of State for Defence[2011] EWCA Civ 1334 the Court of

Appeal considered whether the Iraqi Historic Allegations Team (“the IHAT”),

established by the Secretary of State for Defence on 1 March 2010, was

sufficiently independent to comply with Article 3. The IHAT was established to

investigate allegations of ill‐treatment by Iraqi citizens by members of the

British Armed Forces during the period 2003 to 2009 with a view to the

identification and punishment of any wrongdoers. The IHAD was led by a

civilian who reported directly to the Provost Marshal (Army) who was head of

the Royal Military Police (“the RMP”). The deputy head was a commissioned

officer of the RMP. The command team also included a Deputy Provost

Marshal, a Royal Navy Legal Adviser and a RMP Executive Officer.

22. The Court of Appeal held that for an article 3 compliant inquiry, the IHAT had

to be hierarchically, institutionally and practically independent. The key

question was whether the involvement of the Provost Branch in Iraq was such

as to transgress those requirements. The Court of Appeal observed that under

the IHAT arrangements, Provost Branch members were investigating

allegations which necessarily included the possibility of culpable acts or

omissions on the part of Provost Branch members. The Court of Appeal

concluded that the practical independence of the IHAT was, at least as a

matter of reasonable perception, substantially compromised.

Article 5: right to liberty and security

23. The Grand Chamber of the ECtHR had cause to consider the legality of the

police practice of “kettling” (when protestors and others are detained within a

police cordon). The House of Lords had, in Austin v. Metropolitan Police

Commissioner [2009] UKHL 5; [2009] AC 564 determined that the practice was


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lawful, despite article 5 containing no reference to the interests of public

safety or to the protection of public order as being one of the cases in which a

person may be deprived of his liberty.

24. The ECtHR reached the same conclusion as the House of Lords. It concluded

that the cordon had been imposed to isolate and contain a large crowd in

volatile and dangerous conditions. An absolute cordon had been the least

intrusive and most effective means to be applied. In circumstances where the

police had kept the situation constantly under close review, but where

substantially the same dangerous conditions which had necessitated the

imposition of the cordon at 2pm had continued to exist throughout the

afternoon and early evening, those within the cordon could not be said to have

been deprived of their liberty within the meaning of article 5(1). Since there

had been no deprivation of liberty, it was unnecessary to examine whether the

measure in question had been justified.

Article 6: fair trial rights

25. Article 6(1) provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

26. Article 6(2) provides:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

27. Article 6(3) applies to persons charged with a criminal offence and so is

therefore beyond the scope of this talk.

Article 6(1): meaning of “civil rights and obligations” 28. There has been some judicial consideration of the meaning of “civil rights”. In R

(Maftah) v. Secretary of State for the Foreign Office and Commonwealth Affairs

[2011] EWCA Civ 350 the defendant placed two individuals on a list maintained

by the Sanctions Committee of the United Nationals Security Council of those

believed to be associated with Al Qaida, Usama Bin Laden or the Taliban. The

purpose and effect of the listing was to freeze all their assets and place the

release of the funds entirely in the hands of the executive. The Court of Appeal

held that the decisions did not involve the determination of civil rights for the

purposes of article 6 of the ECHR.

29. In R (G) v. Governors of X School [2011] UKSC 30; [2012] AC 167 G, a teaching

assistant, was summarily dismissed from employment by the defendant,

having been refused permission to have his solicitor present. The defendant

referred the case to the Secretary of State for Children, Schools and Families

who had the power, at the time, to make a direction under section 142 of the

Education Act 2002 prohibiting a person from working with children in

educational establishments. That statutory scheme was replaced by the

Safeguarding Vulnerable Groups Act 2006 which established the Independent

Safeguarding Authority (“ISA”) which maintains a “children’s barred list”. G was

successful in judicial review proceedings claiming that the denial of legal

representation in the disciplinary hearing breached his article 6 rights.

30. The Supreme Court held that G’s civil right to practice his profession as a

teaching assistant would be directly determined by a decision of the ISA to

include G on the children’s barred list, that School disciplinary proceedings did

not determine the civil right at issue nor did they directly determine or exert a

substantial influence over the ISA proceedings and that accordingly the

disciplinary proceedings did not engage article 6(1).


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Article 6(1): proportionality 31. In Tariq v. Home Office [2011] UKSC 35; [2012] AC 452 the claimant was

employed by the Home Office as an immigration officer. Following the arrest of

close family members for terrorism offences, the claimant’s security clearance

was withdrawn and he was suspended from work. He brought a claim in the

Employment Tribunal for discrimination on the grounds of race and religious

belief. The Home Office asserted that it was in the interests of national security

that much of the evidence on which it intended to rely should not be disclosed

to the claimant or his advisers and obtained orders under rule 54(2) of the

Employment Tribunals Rules of Procedure Rules 2004 for the proceedings to be

conducted in private and for the claimant and his advisers to be excluded from

the proceedings when closed evidence was being given or closed documents

considered. A special advocate was appointed to represent the claimant’s

interests when he or his advisers were excluded from the proceedings.

32. The Employment Tribunal rejected a submission by the claimant that a hearing

from which he was excluded and at which closed evidence was admitted was

incompatible with his rights under Article 6 of the ECHR. The EAT dismissed an

appeal by the claimant, but made a declaration that he was entitled to be

provided with sufficient detail of the allegations to enable him to make a

challenge to them. The Home Office appealed against that declaration,

contending that it was not obliged to disclose sensitive information where

national security was in issue. The claimant cross‐appealed. The Court of

Appeal dismissed both appeals.

33. The Supreme Court dismissed the Claimant’s appeal. It held that the demands

of national security might justify the use of a closed material procedure, in

which a party was not entitled to know material by reference to which his

complaint was determined, so long as there were sufficient safeguards. In

assessing whether the procedure provided sufficient safeguards, the court had

to balance the conflicting interests of the individual’s right to procedural

fairness and the need to protect national security in the context of the specific

case. Here the claimant had the benefit of a special advocate, the Employment

Tribunal would keep the closed process under review throughout the

proceedings. Further, the claimant, as a person who had chosen employment

which required national security vetting, was not a victim of state action

depriving him of his fundamental rights whereas the state sought to defend

itself from his claim and could not do so unless it deployed the national

security material. It followed that the balance had been properly struck.

34. The Home Office’s appeal against the EAT’s “gisting” declaration was allowed.

The Supreme Court held that this case did not involve the liberty of the subject

and the use of the closed material did not impair the very essence of the right

to a fair trial.

Article 6(2): standard of proof 35. In Serious Organised Crime Agency v. Gale [2011] UKSC 49; [2012] 2 All ER 1

SOCA obtained an order under Part 5 of the Proceeds of Crime Act 2002 for the

recovery of property to the value of £2 million held by G and his former wife.

The High Court was satisfied on the balance of probabilities that the property

was derived from criminal activity on the part of one or both of G and his

former wife in the form of drug trafficking, money laundering and tax evasion.

This was so notwithstanding that G had been acquitted of drug trafficking in

Portugal and in Spain criminal proceedings against him for drug trafficking

were discontinued. G and his wife argued that the proper standard of proof

was the criminal standard.

36. The Supreme Court dismissed G’s appeal. The commission by the appellants of

criminal conduct from which the property that they held was derived had to be

established according to the civil and not the criminal standard of proof and

that an English court was not precluded from considering evidence which

formed the basis of the charges in Portugal given the absence of a procedural


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link between the Portuguese criminal proceedings and the English civil

proceedings.

37. The Supreme Court had cause in the last 12 months to consider four cases

arising from the Scottish Courts concerned with the application of article 6 in

the criminal courts. An examination of these cases is beyond the scope of this

talk but the cases are as follows: HM Advocate v. P (Scotland) [2011] UKSC 4;

[2011] 1 WLR 2497; Ambrose v. Harris [2011] UKSC 43; [2011] 1 WLR 2435;

Jude v. HM Advocate (Scotland) [2011] UKSC 55; and McGowan (Procurator

Fiscal) v. B [2011] UKSC 54.

Article 8: right to respect for private and family life

38. In R (Quila) v. Secretary of State for the Home Department [2011] UKSC 45;

[2011] 3 WLR 836 the claimants were foreign nationals refused entry clearance

under rule 277 of the Immigration Rules to join their spouses who were British

citizens. Rule 277 precludes entry clearance to a party to a marriage or civil

partnership where one party was lawfully present or settled in the UK and

either party was aged under 21 years of age.

39. The Supreme Court held that rule 277 had the legitimate aim of protecting the

rights and freedoms of those who might otherwise be forced into marriage

however the Secretary of State had failed to establish that it was not more

than was necessary to accomplish her objectives and that it struck a fair

balance between the rights of the parties to unforced marriages and the

interests of the community in preventing forced marriages and by refusing to

grant the visas to Q and B she had infringed their rights under Article 8.

40. In R (McDonald) v. Kensington and Chelsea Royal London Borough [2011] UKSC

33; [2012] LGR 107 the claimant, who had severely limited mobility, suffered

from bladder difficulties which meant that she needed to urinate some two to

three times a night. She had dealt with this by accessing a commode with the

help of a carer provided by the Council. The Council proposed that

incontinence pads could be provided which would afford M greater privacy

and independence, reduce her risk of injury whilst she was assisted to the

commode and reduce the cost of her care by some £22,000 per annum.

41. M argued, inter alia, that the Council’s decision amounted to an interference

with her right under article 8 of the ECHR. The Supreme Court held that it

could not plausibly be argued that such respect had not been afforded. The

Council had sought to respect as far as possible M’s personal feelings and

desires, at the same time taking account of her safety, her independence and

their own responsibilities towards all their other clients.

Articles 10 (freedom of expression) and 11 (freedom of association)

42. The City of London Corporation (“the City”) brought claims in the High Court

for possession of the highway and other open land in the churchyard of St

Paul’s Cathedral, as well as injunctions requiring the removal of the tents and

other structures comprised in the camp: see Mayor, Commonality and Citizens

of London v Samede [2012] EWHC 34. The main issues before the court were (i)

whether the City had established in principle that it was entitled to possession

of the highway land, subject to the court’s consideration of the defendants’

rights under Articles 10 and 11 of the convention, (ii) whether the City should

succeed in its claim for injunctive relief in respect of the highway and open

land, and (iii) whether the interference with the Defendants’ rights entailed in

granting relief would be lawful, necessary and proportionate.

43. Allowing the claims Lindblom J held, in summary, that:

(i) The City of London had to succeed in its claim for an immediate order

for possession of this land unless to grant such an order would

unacceptably affect the defendants’ exercise of their rights under

Articles 10 and 11 of the ECHR;

(ii) The City of London had undoubtedly established a pressing social


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need not to permit the protest camp to remain in St Paul’s

Churchyard and to prevent it being located elsewhere on any of the

land to which the proceedings related. Equally, it would not be

disproportionate to grant the relief the City of London claimed;

(iii)The proposed interference with the defendants’ rights under Articles

10 and 11 was “the least intrusive way in which to meet the

pressing social need” and struck a fair balance between the needs

of the community and the individuals concerned. The freedoms

and rights of others, the interests of public health and public safety

and the prevention of disorder and crime, and the need to protect

the environment of this part of the City of London all demanded

the remedy which the court’s orders would bring. The court would

exercise its discretion to grant the relief requested.

44. Both Lindblom J and the Court of Appeal [2012] EWCA Civ 160 refused

permission to appeal, the latter commenting that “there is no chance that any

of the criticisms raised by each of the defendants, or even all of those

criticisms taken together, could persuade an appellate court that his decision

was wrong... in a very clear and careful judgment, Lindblom J reached a

conclusion which, to put it at its very lowest, he was plainly entitled to reach”.

(at §61). The court also observed that this was not, on the facts or law, a

“marginal case” and expressed the hope that any future cases of this sort

would be dealt with more expeditiously.

Article 14: freedom from discrimination

45. There are two very recent decisions under article 14. In Humphreys v. Revenue

and Customs Commissioners [2012] UKSC 18; [2012] 1 WLR 1545 the Supreme

Court considered whether the rule which required child tax credit to be paid to

one person only in respect of a child, when the care of the child was shared

between separated parents, indirectly discriminated against fathers as

experience showed that they were far more likely than mothers to be looking

after the child for the smaller number of days in the week.

46. Lady Hale (with whom the rest of the Court agreed) held that entitlement to

child tax credit fell within the ambit of Article 1 of Protocol 1 to the ECHR. It

was accepted that the rule was indirectly discriminatory. The only question

was whether the discrimination was justified. The Supreme Court noted that

the proper approach to justification in cases involving discrimination in state

benefits was to be found in Stec v. United Kingdom (2006) 43 EHRR 1017 from

which it seemed clear that the normally strict test for justification of sex

discrimination in the enjoyment of Convention rights gave way to the

“manifestly without reasonable foundation” in the context of state benefits.

The Supreme Court noted that if funds were targeted at one household it was

likely that the child living in the household would be better off than he or she

would be if the funds were to be split between two households with modest

means. The state was entitled to conclude that it would deliver support for

children in the most effective manner, that was, to the one household where

the child principally lived. This also happened to be a great deal simpler and

less expensive to administer thus maximising the support available to families.

47. In Burnip v. Birmingham City Council [2012] EWCA Civ 629 the claimants were

severely disabled. They were assessed as needing the presence of carers

throughout the night in the rented flats in which they lived. For that reason

they needed a two bedroom flat. Om each case the claimant was entitled to

housing benefit, but this was restricted by the local authority to the rate

applicable to a one bedroom flat. The claimants contended that this amounted

to unlawful discrimination under Article 14 of the ECHR when read with article

8.

48. The Court of Appeal allowed the claimants ‘appeal. The claimants had

established a prima facie case of discrimination pursuant to article 14, subject

to justification. The discrimination could not be justified by the availability to

the claimants of discretionary payments under other regimes (such as disability


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living allowance). Neither did the availability of discretionary housing payments

justify the treatment: they were purely discretionary in nature; their duration

was unpredictable; they were payable from a capped fund; and their amount,

if they were paid at all, could not be relied upon to cover even the difference

between the one and two bedroom rates of housing benefit.

Article 1 of Protocol 1: peaceful enjoyment of possessions

49. In AXA General Insurance Limited v. Lord Advocate [2011] UKHL 46; [2011] 3

WLR 871 the Supreme Court considered the Damages (Asbestos‐related

Conditions) (Scotland) Act 2009. The 2009 Act provided, contrary to case‐law

(Rothwell v. Chemical and Insulating co Ltd [2008] AC 281), that asbestos

related pleural plaques were actionable in tort. A group of insurance

companies asserted that the 2009 Act was not compatible with their property

rights under Article 1 of Protocol 1. The terms of the 2009 Act were

retrospective: the insurance policies called on to meet liability were written

when the law was taken to be as stated in Rothwell and it followed that

policies called on to meet liability were written when the law was taken to be

as stated in Rothwell. Claims which then were bound to fail were now

actionable under the 2009 Act.

50. The Supreme Court held that the claimants were entitled to bring the

proceedings as victims under article 34 of the convention. The money required

to satisfy their obligations under the insurance policies was a possession within

the meaning of article 1.

51. The 2009 Act pursued a legitimate aim, namely that the consequences of the

case law was viewed by the Scottish Ministers as unduly harsh and as a social

injustice justifying legislative intention.

52. The 2009 Act was held to be proportionate. The Supreme Court noted that the

Strasbourg jurisprudence did not preclude interference with existing contracts

but special justification was required. Here, two features showed that the

balance was not disproportionate:

(i) claims under the 2009 Act would only succeed if exposure to asbestos

was shown to have been negligently caused by the employer; and

(ii) the insurers’ business was inextricably linked with risk. In long term

policies, there was inevitably the risk of circumstances, unseen

when they were written, occurring which would increase the

burden of liability. The present interference within insurers’

possessions could be seen to be within the area of risk with which

they engaged when they undertook to indemnify the consequences

of the employer’s negligence.

53. In Thomas & ors v Bridgend County Borough Council [2011] EWCA Civ 862 the

claimants all owned houses close to a new road, which had been built by a

developer in connection with a housing development. The road was open to

the public but, owing to the failure of the developer to perform its obligations

under the relevant planning agreements, it was not accepted by the local

authority for adoption until more than three years later. The claimants sought

compensation under the Land Compensation Act 1973 for the alleged

depreciation in the value of their homes attributable to the noise from the

road. However, on an ordinary construction of the Act, the claim was excluded

by s.19(3) which imposed a three year limit on claims.


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54. The Court of Appeal held that a breach of article 1 of the First Protocol was

established by the operation of section 19(3) and that on a proper reading,

employing section 3 of the 1998 Act, on the facts in the case the claimants

were entitled to compensation. The Court noted that in circumstances such as

those in the instant case, the operation of s.19(3) of the Act was so absurd that

it undermined the fairness of the balance intended by Parliament. The diligent

road builder who completed his project in time was penalised by liability for

compensation, whereas the inefficient road‐builder was rewarded by evading

liability altogether. A breach of article 1 of the First Protocol was therefore

established. The Court of Appeal was also prepared to read s.19(3) in a very

wide way so as to allow the claimants to pursue their claim for compensation.

Sarah Hannett 20 June 2012

Slide 1

www.4-5.co.uk

Judicial review and human rights: an update

20 June 2012

Sarah Hannett

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 2 Introduction: scope of the talk

• section 2, HRA– Ambrose v. Harris (SC)– Rabone v. Pennine Care NHS Trust (SC)

• individual ECHR rights:– art. 3 ECHR – art. 5 ECHR– art. 6 ECHR– art. 8 ECHR– arts 10, 11 ECHR– art. 14 ECHR– art. 1 of Protocol 1

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 3 Section 2 HRA: the context

• Section 2(1) HRA provides:– “a court of tribunal determining a question which has

arisen in connection with a Convention right must take into account any... judgment... of the European Court of Human Rights”

• The “mirror principle”:– R (Alconbury) v. Secretary of State: in the absence of

special circumstances the domestic courts should follow any clear and constant jurisprudence of the ECtHR

– R (Ullah) v. Special Adjudicator• Resiling from the mirror principle?

– Lord Phillips vs Lord Judge– Sugar v. BBC [2012] UKSC 4, per Lord Wilson

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________


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Slide 4 Rationale for the “mirror principle”

• The need to give practical recognition to the principles laid down by the ECtHR, it being the highest judicial authority on the interpretation of the ECHR– Kay v. Lambeth London Borough Council

• Purpose of the 1998 Act is to enable rights and remedies to be asserted domestically without recourse to Strasbourg– R (SB) v. Denbigh High School

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 5 The “mirror principle”: problems (1)

• The case law of the ECtHR is not always clear:– Re McCaughey (SC)– Gale v. Serious Organised Crime Agency (SC)

• The domestic courts have not been consistent about what kind of Strasbourg judgments should be applied to the HRA– meaning of “clear and consistent”– evolving field and elderly ECtHR jurisprudence– Chamber decision due to be reargued in Grand

Chamber• Should a Grand Chamber decision be followed?

– Pinnock and Re Caughey (cf Cadder)

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 6 The “mirror principle”: problems (2)

• Inconsistent application of the mirror principle by domestic courts:– LS and Marper – Animal Defenders International

• Re G: domestic court can exceed Strasbourg protection:– if matter to be considered by ECtHR protection would

be provided– if ECtHR would regard matter as within state’s margin

of appreciation• Cf Ambrose v. Harris (SC):

– wise to wait for ECtHR decision on the point

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 7 Rabone v. Pennine Care NHS Trust

• SC held that the Trust had an operational duty under art 2 ECHR to take reasonable steps to prevent the suicide of C’s daughter, a voluntary patient– duty re those detained (in prison, immigration

detention or under Mental Health Act 1983)– No duty in generality of medical negligence cases

• SC accepted that its decision went further than existing case law of ECtHR

• See Lord Brown at paragraph 112.

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 8 Article 3

• MS v. United Kingdom (ECtHR)– treatment arising from unintentional delay in

provision of psychiatric services for less than 31 hours was a breach of art. 3 ECHR

• Vinter v. United Kingdom (ECtHR)– whole life sentences could in principle infringe art.

3 ECHR but did not on the facts of the case

• Mousa v. SS for Defence (CA)– IHAT team not hierarchically, institutionally or

practically independent; breach of art. 3 ECHR

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 9 Article 5

• Austin v. United Kingdom (ECtHR, Grand Chamber)– considered the practice of “kettling”

• House of Lords [2009] UKHL 5:– compliant with art. 5 ECHR despite art. 5 containing no

ref to public safety or public order• Grand Chamber: practice was lawful

– cordon imposed to isolate and contain a large crowd in volatile and dangerous conditions

– absolute cordon the least intrusive and most effective means to apply

– police had kept the situation under close review, but same conditions persisted

• No deprivation of liberty

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________


145


Slide 10 Article 6: civil rights and obligations

• R (Maftah) v. Foreign Secretary (CA)– Placement on list maintained by UNSC Sanctions

Committee did not involve the determination of civil rights under art. 6(1) ECHR

• R (X) v. Governors of X School (HL)– G denied legal representation at disciplinary hearing– art. 6(1) ECHR not engaged as placement on

children’s barred list would be determined by ISA– school disciplinary hearings did not determine the civil

rights at issue or directly determine or influence the ISA proceedings

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 11 Article 6(1): proportionality/standard of proof

• Tariq v. Home Office (SC):– demands of national security may justify the use of a

closed procedure as long as sufficient safeguards– T had special advocate; ET would keep closed process

under review; T had chosen his employment– no need for “gist” where case did not involve liberty of

subject and didn’t impair essence of fair trial right

• Gale v. SOCA (SC)– standard of proof for orders under the Proceeds of

Crime Act 2002 was civil, and not criminal

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 12 Article 8

• R (Quila) v. SSHD (SC)– rule 277 of the Immigration Rules infringed art. 8

ECHR– not proportionate to the legitimate aim of preventing

forced marriages

• R (McDonald) v, Kensington and Chelsea RLB (SC)– no interference with M’s art. 8 rights where LA required

care user to wear continence pads overnight

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 13 Articles 10 and 11

• Mayor of London v. Samede (Admin Ct)– claims for possession of the highway and other open

land in the churchyard of St Paul’s Cathedral• Lindblom J held:

– LA would succeed in application for injunction save for the art.10/11 rights of the protestors

– LA had established a pressing social need not to permit the protest camp to remain

– proposed interference with S’s rights under art.10/11 was the “least intrusive way to meet the pressing social need” and struck a fair balance between the needs of the community and the individuals concerned

• Permission to appeal refused(and by CA)

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 14 Article 14

• Humphreys v. HMRC (SC)– rules on child tax credit indirectly discriminatory on

grounds of sex under art. 14 with art. 8 ECHR– indirect discrimination justified: approach meant child

better off, would deliver support in most effective way, simpler and cheaper to administer

• Burnip v. Birmingham City Council (CA)– B assessed as needing two bed flat to accommodate

carer, but paid housing benefit for one bed flat only– unlawful discrimination under art.14/8 ECHR– discrimination not justified

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 15 Article 1 of Protocol 1

• AXA General Insurance v. Lord Advocate (SC)– Scottish statute reinstating liability in tort engaged

A1P1 but had “special justification”– claims under Act limited to negligence– insurers’ business inextricably linked to risk

• Thomas v. Bridgend CBC (CA)– T sought compensation under Land Compensation Act

1983; claim excluded by s.19(3) which imposed a 3 year time limit

– s.19(3) breached A1P1; applying s.3 HRA T entitled to compensation

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________


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Slide 16 Judicial review and human rights: an update

Name Sarah HannettTel 020 7404 5252

[email protected]

5th Annual Education Law Conference5th Annual Education Law Conference

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________


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Irrationality

Paul Greatorex, Barrister

1. Irrationality is well‐established as a ground of judicial review. But what is meant

by this term? In Council of Civil Service Unions v Minister for the Civil Service

[1985] 1 AC 374, Lord Diplock answered this as follows (at 410):

“By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.”

2. The Wednesbury case concerned a challenge to a local authority’s decision to

licence “cinematograph performances” on Sundays, subject to the condition

that no children under 15 be admitted. At 230, Lord Greene MR said:

“[I]f a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere…[T]o prove a case of that kind would require something overwhelming and, in this case, the facts do not come anywhere near anything of that kind…It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another.”

3. This approach is easy both to state and to understand, and indeed the

persistence of this doctrine in administrative law may well be due to this

simplicity and the fact that it captures the essence of the court’s function: it puts

the “review” in “judicial review” and measures the constitutional distance

between the executive and the judiciary.

4. The difficulties all come in the application of this approach, when the

deceptiveness of its simplicity becomes apparent. First, its apparently all‐

embracing nature is liable to confuse because of the overlap with other grounds

of review. This was acknowledged in Wednesbury itself where Lord Greene MR

said (at 229):

“[T]here may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v Poole Corporation [1926] Ch. 66 gave the example of the red‐haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.”

5. The reference to the case of Short leads on to the second difficulty, which is the

leeway which is at the core of this principle creates uncertainty and permits

either inadequate judicial control or unwarranted judicial interference

depending upon one’s perspective. Compare and contrast:

(1) Short v Poole Corporation [1926] Ch.66: A local authority dismissed the

claimant teacher in line with its policy to dismiss female teachers once they

married. The reasons for this policy were: (1) The duty of the married

woman was primarily to look after her domestic concerns, and it was

regarded as impossible for her to do so and to act effectively and

satisfactorily as a teacher at the same time, and (2) that it was unfair to the

large number of unmarried teachers seeking employment that the positions

should be occupied by married women who presumably had husbands

capable of maintaining them. The decision to dismiss was upheld.

(2) Roberts v Hopwood [1925] AC 578: The House of Lords held that it was not a

reasonable exercise of a local authority’s discretion to pay its employees and

minimum wage, and moreover one that was the same for men and women.

Lord Atkinson appears to have suggested that the Council had allowed itself

“to be guided in preference by some eccentric principles of socialistic

philanthropy, or by a feminist ambition to secure the equality of the sexes in

the matter of wages in the world of labour.”


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6. And this is all before we have got beyond the pre‐history of judicial review. So

how to understand this principle? Keeping two things in mind throughout will

help:

(1) It is far more nuanced and complicated than its simple formulation suggests

and it is difficult to describe satisfactorily its scope in principle and its

application in practice.

(2) When considering a particular case and/or authority, remember that

context is everything. This includes the identity of the parties, the facts of

the case, the nature of the power being exercised, the effect of that on the

claimant and/or others, what issues of principle are at stake, the value

judgments involved, and even the identity of the judge.

7. With these in mind then, the first matter to deal with, if only to put to one side,

is the issue of the word used to describe this ground of review. “Irrationality”

has been criticised as giving a misleading impression both as to the narrowness

of its scope and/or the mental capacity of the decision maker. The same may be

said of “perversity”. “Unreasonableness” is the most usual synonym or

substitute, although it is usually prefaced with “Wednesbury” and has also

attracted criticism. The reason this can be put to one side is because what

really matters is the content of this ground of review rather than its label.

8. Of a little more use are the other terms which have been coined at various times

to try and capture the variations in the principle’s application. These include:

heightened scrutiny (also referred to as close/rigorous/anxious/intense

scrutiny), light touch review and extreme irrationality. These terms can be

helpful in categorising cases and understanding why different approaches were

taken, which can in turn help predict their applicability to a case you have

and/or the prospects of success. But this assistance is ultimately limited and

should not obscure the two key points above.

9. The next step is to see whether this ground truly applies. This involves two

considerations:

(1) Are rights under the ECHR or EU law are in issue? If so, irrationality has no

part to play since proportionality is the relevant principle.

(2) Is the challenge really based on other grounds such as reasons,

relevant/irrelevant considerations, improper purpose or even breach of

some statutory duty, e.g. under the Equality Act 2010?

10. So far as (2) is concerned, the substance of an irrationality challenge is usually

the outcome of a decision or the process by which it is taken. So far as the

former is concerned, irrationality may be found where this is absurd, harsh,

illogical or even just arbitrary, inconsistent or uncertain. As for the latter, it

encompasses flawed or inconsistent logic or reasoning, the lack of a rational

connection between either measures and objective or considerations and

conclusion, manifestly inappropriate weight being given to one or more

considerations, and a decision based on no or inadequate material. The

potential for overlap is clear from this list.

11. After this, it becomes a question of trying to identify the elements of the case

that will affect the application of the principle. There are those which indicate a

heightened level of review should be applied and those which indicate a lower

or lesser level of review.

12. Decisions which allegedly interfere with constitutional rights will be more closely

scrutinised. These include cases concerning protection from discrimination,

religious freedoms, enjoyment of one’s home at night, restrictions on the

political activities of local government officers and access to potentially life‐

saving medical treatment, as well as cases where a person’s life may be at stake.

13. On the other hand, there are certain cases where the courts are more reluctant

to characterise decisions as unreasonable. These include policy‐laden or

polycentric decisions, decisions involving political judgments, decisions involving


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allocation of scarce resources and decisions involving specialist or technical

expertise.

14. Other factors which can affect the approach taken include: whether there is a

democractic mandate for a particular decision or policy, whether the decision or

rule under challenge has Parliamentary approval. Outside of the context of

judicial review, considerable deference is given by courts hearing appeals from

decisions of specialist tribunals to the expertise of those bodies.

15. Very recently, however, the Supreme Court has said that in community cases at

least, the intensity of the review “will depend upon the profundity of the impact

of the determination” (R (KM) v Cambridgeshire CC [2012] UKSC 23 at [36]).

This is arguably an obiter dictum since it was not directly in issue and not the

subject of oral argument and further does not refer to Runa Begum v Tower

Hamlets LBC [2003] 2 AC 430 where the House of Lords explicitly rejected the

suggestion that a homelessness decision of “immense importance” to the

claimant should for this reason be subject to “anxious scrutiny” (see at [7]).

16. In any event, even where, as we have seen, it is clear that the level of review is

modified up or down, what does this actually mean in practice? What difference

does it make to the preparation, the hearing or the deciding of a case, if a judge

is going to give “close” scrutiny as opposed to a “light touch” review? A

claimant’s submission that a decision should be subject to “anxious scrutiny” is

often nothing more than a rhetorical device employed to try and embolden the

court to engage with its merits and come to a different conclusion. Similarly a

defendant may argue for a lesser standard of review than normal as a means of

discouraging the court from exercising any sort of meaningful review at all.

17. In R (YH) v Secretary of State for the Home Department [2010] EWHC (Admin),

Carnwath LJ (as he then was) said at [24] the following about the phrase

“anxious scrutiny”

“[T]he expression in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind: indeed, one which might be thought an “axiomatic” part of any judicial process, whether or not

involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in avour of an applicant has been properly taken into account.” (emphasis added)

18. The underlined words suggest that variations are as much a matter of form as

substance, i.e. they merely require decisions to be more or less carefully drafted

and explained. This should be kept in mind by public bodies, both when taking

decisions and, more importantly, when defending them in the Administrative

Court. But great difficulties still remain. Going back to KM, referred to above,

what Lord Wilson said in paragraph 36 included the following:

“[I]n community care cases the intensity of review will depend on the profundity of the impact of the determination. By reference to that yardstick, the necessary intensity of review in a case of this sort is high…On the other hand respect must be afforded to the distance between the functions of the decision‐maker and of the reviewing court; and some regard must be had to the court’s ignorance of the effect upon the ability of an authority to perform its other functions of any exacting demands made in relation to the manner of its presentation of its determination in a particular type of case. So the court has to strike a difficult, judicious, balance.”

19. A fortiori, it would seem, the balance that has to be struck by a public body both

when it makes the decision and has to defend it in court. How much time and

effort need it put into making and explaining its decisions? How much time and

effort need it put into explaining it to the court? This is particularly difficult

where there are factors such as those identified above which pull in different

directions. Policy decisions about the allocation of scarce resources which have

a profound impact on individuals, for example.

20. These uncertainties cannot be eliminated because they represent, or at least

symbolise, the shifting borders between the executive and the judiciary. They

are not exclusive to the irrationality principle, but reflect the more general

principle that “greater or lesser deference will be due according to whether the

subject‐matter lies more readily within the actual or potential expertise of the

democratic powers or the courts” (International Transport Roth GmbH v SSHD

[2003] QB 728 at [87] per Laws LJ). Ultimately this depends upon how the

courts themselves measure both their practical competence and their


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constitutional function. Trends may be observed over time, but that does not

give the legal practitioner dealing with cases on a day‐to‐day basis the certainty

he would like.

21. However, it may well be that, so far as irrationality is concerned at least, these

problems are diminishing as other controls on public bodies grow. Legislation

such as the Human Rights Act 1998 and the Equality Act 2010 have has given

claimants a number of statutory tools with which to challenge decisions whereas

in the past they had to rely upon Wednesbury. Similarly, the increase in use of

specialist tribunals has removed many types of cases from the Administrative

Court altogether. The effect of these changes over time may be to diminish the

number of irrationality challenges as well as judicial willingness to uphold them

unless the more extreme formulations of the principle are satisfied.

PAUL GREATOREX

14th June 2012

Slide 1

www.4-5.co.uk

Irrationality

Paul Greatorex

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 2 Irrationality – what does it mean?

• “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it” (Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 per Lord Diplock at 410

• “a decision on a competent matter [which] is so unreasonable that no reasonable authority could ever have come to it” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223)

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 3 Irrational or not?

• Sacking a teacher for having red hair• Sacking a teacher for getting married• Prohibiting children from going to the cinema on Sunday• Introducing a minimum wage and making it the same for men and

women• Banning homosexuals from serving in the armed forces• Excluding Gatwick airport from a consultation paper on expanding

runway capacity• Compensating soldiers injured in Bosnia differently from those

compensated in Northern Ireland

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________


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Slide 4 Terminology

• Irrational• Perverse• Unreasonable• Wednesbury unreasonable• Heightened scrutiny• Anxious scrutiny• Close scrutiny• Rigorous scrutiny• Intense scrutiny• Light touch review• Extreme irrationality

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 5 Applicability

• Rights under ECHR or EU law• Reasons challenges• Relevant/irrelevant considerations• Improper purpose• Breach of statutory duty

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 6 Substance

• Outcome• absurd• harsh• oppressive• Illogical• arbitrary• inconsistent• uncertain

• Process• flawed or inconsistent logic or reasoning• lack of rational connection between measures/objective or

considerations/conclusion• manifestly inappropriate weight• decision based on no or inadequate material

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

158 Judicial Review Conference

Slide 7 Variable standards of review

• Heightened review• life• equality/discrimination• religious freedoms• enjoyment of home• medical treatment• profound impact

• Lower review• policy-laden/polycentric decisions• political judgments• allocation of scarce resources• specialist/technical expertise

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 8 Effect of different level of review

“[T]he expression [anxious scrutiny] in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind: indeed, one which might be thought an “axiomatic” part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in avour of an applicant has been properly taken into account.” (R (YH) v Secretary of State for the Home Department [2010] EWHC (Admin), per Carnwath LJ (as he then was) at [24])

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

Slide 9 Conclusion

• The irrationality principle is far more nuanced and complicated than its simple formulation suggests and it is difficult to describe satisfactorily its scope in principle and its application in practice.

• When considering a particular case and/or authority, remember that context is everything. This includes the identity of the parties, the facts of the case, the nature of the power being exercised, the effect of that on the claimant and/or others, what issues of principle are at stake, the value judgments involved, and even the identity of the judge.

___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________ ___________________________________

– June 2012

Documents

JR 2012seminar