tCI commentary:
This does not refer directly to public consultations. But we know that such weaknesses in process feature in many legal challenges. What this excellent article illustrates is the range of situations that end up in Court, and how vulnerable public bodies can be if they make mistakes in arriving at decisions that cause damage or distress to individuals (think Windrush family victims) or withdraw benefits or services. It has never been more important to observe best practice.
Article:
What have the victims of black cab driver John Warboys, the late Professor Stephen Hawking, a salmon fisher in the Severn, and Uber all have in common? Answer: they have all used the mechanism of judicial review to challenge a decision or the decision-making process of a public body.
What is judicial review?
It is the examination of the decisions, actions or failure to act, and decision making of public bodies or a body exercising a public law function (for example, a regulatory body) by a court to ensure they have acted lawfully and fairly. This means the decision and decision-making process of the body must not be illegal in the sense of administrative and constitutional law, for example not acting in ways which are beyond its powers, irrational (that is, so unreasonable no body acting correctly could have made it), procedurally unfair (for example, biased, or the body failed to provide reasons for its decision), or outside legitimate expectations (that is, the body failed to meet an expectation that it would act in a certain way).
If a body has not acted lawfully or fairly in the way it has performed (or failed to perform) a public power or duty, a court can quash (set aside) its decision, make a mandatory order requiring it to carry out its legal duties properly or issue a prohibiting order, restraining the public body from acting beyond its powers.
A court can also make a declaration setting out the rights or legal position of the parties, grant a stay of proceedings or an injunction or, potentially, award damages if another established cause of action is available for which damages may be sought.
Judicial review is a remedy of last resort. A party needs to have exhausted the public body’s internal procedures first unless there is a very good reason not to have done so. This is because the courts, in conducting a judicial review, do not seek to usurp the particular power or duty of the public body, by carrying out a detailed examination of the merits of a decision. A judicial review is more accurately a check by the judiciary to ensure that minimum standards of good administration are observed.
Time limits and the Thornton Hall Hotel case
While judicial reviews are on the increase, the courts set a high bar for a potential claimant to meet in order to bring an action. Only a party with sufficient interest in the case can apply for a judicial review (but this can include campaign or specific interest groups). Permission has to be granted by a court for the claim to proceed, allowing courts to weed out unmeritorious claims that appear to lack legal merit or that would not make any practical difference. Additionally, these claims are time sensitive. You have to bring the claim promptly and in any event within three months of the grounds on which the claim is based, arose. The obligation of ‘promptitude’, means delay will be penalised/cases thrown out even where claims are brought within the three month time limit if a judge considers a party has delayed unreasonably. Planning cases, challenging the grant or refusal of planning permission, have an even shorter time limit of just six weeks from the date a planning decision is issued.
However, in a recent planning-related decision (the Thornton Hall Hotel case), the judge quashed a planning permission after six years. This case was very fact-specific. The decision centred on the public interest as represented by the statutory planning powers of the local planning authority whose mistake in the exercise of those powers had led to an illegality. The court declared that the guardian of the public interest is the Administrative Court which needed to remedy the wrong. In a nutshell, marquees had remained too long in the hotel’s grounds as the planning permission was inadvertently unconditional but legally should have been conditional (time limited) and so the court quashed the erroneous permission.
The Parole Board and John Warboys
In the Warboys’ case, the Parole Board was criticised as it had not taken into account wider evidence, including unproven allegations, especially when assessing the risk Warboys posed to the public. While the court could not and cannot substitute its own decision for that of the Parole Board, it could (and did) require the Parole Board to look again at the matter because the process was not conducted properly. Warboys remains detained while this takes place.
The Severn Salmon case
In the Severn Salmon fishing case, Mr Mott was a salmon fisherman who used the putcher method of catching salmon. This involves trapping the fish in baskets and dates back to the 17th century. It is (arguably) an environmentally sensitive method of catching the fish, ensuring salmon stocks remain stable. The Environment Agency decided to reduce the maximum number of salmon Mr Mott could catch on the grounds of sustainability of salmon stock which is under threat. Mr Mott argued that this reduction rendered his business unviable and was unlawful as a breach of his human rights protected under Article 1 of the First Protocol to the European Convention on Human Rights. He had received compensation between 2004 and 2011 for not fishing during particular seasons, but no compensation was paid to him for restrictions in place during 2012 to 2014. The Supreme Court ruled that the Environment Agency had to resume paying Mr Mott compensation. The court ruled that the Agency had failed to consider the particular impact of its decision on Mr Mott’s livelihood, which was severe. The court acknowledged that this was an exceptional case on the facts, because of the severity of the impact and its disproportionate effect (when compared to others) on Mr Mott.
Professor Stephen Hawking
The late Professor Hawking was a member of a campaign group, JR4NHS, challenging government policy introducing Accountable Care Organisations; partnership bodies linking hospitals, corporate services and local authorities. Professor Hawking saw them as the privatisation and ‘Americanisation’ of the NHS and consequently an ‘attack on the fundamental principles of the NHS’, an organisation without which ‘he would not have had such a long life’. The proposals are also opposed by the BMA. Permission was granted to apply for judicial review. The case will be heard at the High Court in May 2018 and will decide whether the policy is ultra vires and/or whether the Secretary of State for Health and/or NHS England have breached their respective duties of transparency and clarity.
The campaign group are crowd-funding the case. There has already been a judicial decision to impose cost capping orders to limit the liability in respect of each other’s costs. This is because the judge ruled that the case met the relevant statutory public interest test and was brought by responsible and public-spirited individuals, and noted that the case involved public money on both sides.
Uber and TfL
Uber, the disruptive technology cab company, was expected to challenge TfL’s decision to refuse the renewal of its private hire vehicle operator licence by way of judicial review. It had already used judicial review to challenge TfL’s imposition of certain requirements as part of the licensing process including, firstly, in relation to driver language proficiency, secondly in relation to passenger telephone access and, thirdly, in relation to hire and reward insurance. Uber had failed on its first challenge, had some success on its second and the insurance requirement was quashed by consent of the parties.
Rather than seeking a judicial review of the refusal to renew Uber’s private hire vehicle licence, Uber is appealing TfL’s decision, coupled with a tactical ‘hearts and minds’ campaign with the public. Its official appeal is still pending. It is rumoured that the GMB Union has threatened TfL with judicial review proceedings should TfL have granted Uber’s renewal application without the imposition of conditions on Uber’s licence. Consequently, TfL potentially faced judicial review proceedings from several angles.
Commercial contracts and the Braganza case
This case shows clearly that judicial review pervades many areas of people’s private and commercial lives. Moreover, public law principles that underpin judicial review cases in public decision making can even apply to the exercise of discretion by private bodies where a contract provides for an exercise of discretion or assessment, for example, in the exercise of contractual provisions relating to valuations or the determination of fact. The Braganza shipping case in 2015 concerned BP’s refusal to award a death in service payment to the widow of one of BP’s oil tanker’s chief engineers on the grounds that he had, allegedly, committed suicide overboard. BP argued that such payments were discretionary and not payable in the event of a death resulting from “a wilful act” (such as suicide).
In this case, in the leading judgement, Lady Hale highlighted the need to take into account the right matters in reaching a decision and to avoid reaching an unreasonable outcome. This echoes and applies the principles developed in the 1948 Wednesbury case that defines the public law concept of ‘unreasonableness’. Accordingly, the majority of the judges found against BP deciding that it should have sought more cogent evidence of suicide before determining that the engineer’s death was the result of suicide; there had been an investigation involving two internal reports that the most likely explanation for the death was that the chief engineer had disappeared as a result of suicide by jumping overboard.
This was another fact-specific case, with the judges possibly determined to achieve a teleological, outcomes focused decision and influenced by the employment context. That said, it is an example of the types of scenarios within which a court will imply terms into a contract to control the exercise of contractual discretion. This may have very wide application with significant implications. For instance, it has already been used in the scrutiny of discretionary bonuses paid by employers to employees in the banking sector.
Conclusion
Planning permissions, parole decisions, fishing licences, health policy and transport licences – the decisions of public bodies pervade all areas of personal and commercial life accompanied by the potential for the judicial review of those decisions. Our own experience bears out the breadth of application of the remedy of judicial review in the cases upon which we advise including in the charities sector, in challenges to HMRC policy, disputes with the Rural Payments Agency, challenges to public body vetting standards in procurement procedures and, of course, planning decisions.
The moral of the tale is that the court’s jurisdiction to review the conduct of public and quasi-public bodies is often underestimated. Judicial review can be an innovative way of scrutinising and challenging alleged breaches of public law rights and duties and, consequently, a means of challenging or defending individual or commercial rights. Moreover public law principles can potentially apply to the exercise of discretion or assessment in private law commercial contracts.
Article written by Sara Sayer, Head of Public Law at Birketts LLP
(Sara-Sayer@birketts.co.uk/01223 3226763)
