After a bit of a break, we are happy to say that our public law case update is making a welcome return. In this edition we offer a straightforward and concise overview of six public law and regulation cases within the last quarter of 2022 which highlight important points of relevant principles and procedure.
Our team of public law and regulation specialists examine the following cases and identify the key points which can be taken from them.
- When is a policy not enforceable?-R (Good Law Project) v The Prime Minister & Ors
- Deference and fairness in relation to the Government's policy on Rwanda - AAA and Ors v Secretary of State for the Home Department
- Delegation and unfairness where there is junior input into decision-making - Smith v Secretary of State for Levelling Up, Housing and Communities & Anor
- Public body contracts and amenability to judicial review - R (Sashi Shashikanth) v NHS Litigation Authority, NHS Commissioning Board (aka NHS England)
- Stop-gap solutions by regulators - R (SSE Generation Ltd) v the Competition and Markets Authority
- A tougher approach to issuing judicial review claims in the closest court - R (Airedale Chemical Company Ltd) v HM Commissioners for Revenue and Customs
When is a policy not enforceable?
R (Good Law Project) v The Prime Minister & Ors is a Court of Appeal decision relating to the duty in the Public Records Act 1958 (the PRA) to make arrangements for the selection and safe keeping of those records that ought to be permanently preserved.
Among other things, the case concerned eight policies which forbade the use of private emails or electronic communication (such as WhatsApp) by ministers and officials, some of which were made under the PRA. When such methods are used under the policies, public records containing substantive discussions of government business should be transferred onto and retained on an official government system.
The interesting question in the case was whether those policies were enforceable by the appellant on judicial review. At first instance, the Divisional Court held that they were not and the Court of Appeal agreed.
The appellant argued that the Government was required to comply with these policies unless there was a good reason not to. The respondent countered that in order to be justiciable in public law, a decision must affect the rights of some person or body of persons and, since these policies were not public-facing, they were not enforceable.
The Court of Appeal accepted that decisions could be amenable to judicial review, even where they do not affect the rights of an individual. However, it noted that there are many types of policies and that policies are different from law and that whether or not a policy directly affects the public will be a relevant factor in deciding whether there is a duty to comply with it.
The court agreed with the Divisional Court that the policies in question were not enforceable essentially for the reasons given below:
- Firstly, the policies governed the internal administration of government departments, not the exercise of public power, and did not affect the rights of individuals.
- Secondly, it is a fundamental principle of public law that guidance does not need to be slavishly followed, and here the eight policies could not be read as a coherent whole. To follow one might mean contravening another.
- Thirdly, Parliament will normally specify the degree to which it wishes a policy made under statute to be followed. However, here Parliament had mandated compliance with policies produced under the PRA.
- Finally, there are other mechanisms to ensure appropriate accountability in this context. These include the Information Commissioner's Office, the Parliamentary Commissioner, internal disciplinary proceedings and ministers' accountability to Parliament.
The Court of Appeal stated that the types of policies that are likely to be enforceable are those that are the 'epitome of government policy', whereas the policies in this case were merely internal guidance or administrative arrangements.
Finally, it is noteworthy that the court admonished the Good Law Project on not being clear as to the relief it sought. It stated that if a claimant is unable or unwilling to particularise the relief it seeks, this may indicate that the claim should not be pursued.
Deference and fairness in relation to the Government's policy on Rwanda
AAA and Ors v Secretary of State for the Home Department concerned the Government's policy that persons who enter the UK illegally will be removed to Rwanda to have their claims considered there.
With regards to the overarching policy itself, the claimants stated that the Home Secretary's view that Rwanda was a safe third country under the relevant legislation was flawed. The two main issues were:
- Firstly, whether the Home Secretary had breached the Tameside duty to take reasonable steps to obtain sufficient relevant information before making a decision, and the linked requirement to do a thorough examination of all relevant generally available information.
- Secondly, whether the Home Secretary could lawfully reach the decision that relocation to Rwanda would not give rise to a risk that an individual would be sent back to their country of origin in breach of the Refugee Convention, or that they would be subject to ill-treatment contrary to article 3 of the European Convention on Human Rights because of conditions in Rwanda itself.
The Divisional Court disagreed with both arguments. It deferred to the Government's assessment of the weight to be placed on the specific and detailed assurances given by Rwanda as to how individuals sent there would be treated, particularly in view of the significant history of the two governments working together. The court stated that to go behind the Home Secretary's view that Rwanda would meet its obligations would require compelling evidence to the contrary, which was not present in this case. It was also held that there was no evidence that those removed to Rwanda were likely to have their rights breached there. The policy was therefore held to be lawful in the abstract.
In relation to the operation of the policy in respect of the individual claimants, the key point concerned obligations for procedural fairness at different stages of the process.
The Divisional Court disagreed with the claimants' argument that the duty to act fairly required the Home Secretary to permit representations on all of the relevant criteria in the Immigration Rules or to provide them with all material she relied on to reach her conclusion that Rwanda would be safe.
The court reiterated the factors to be considered in deciding whether a system is fair, including looking at the full run of cases that go through the system and considering whether unfairness is inherent in the system rather than being present in individual cases. It repeated that the threshold for showing systematic unfairness is a high one.
The court found no systematic unfairness in this case but did find flaws in the individual decisions relating to the claimants, such as errors of fact and a failure to ensure that representations were sent to all relevant decision-makers. Although the overarching policy itself was lawful, the decisions in relation to the individual claimants were quashed. We understand that the case is currently being appealed.
Delegation and unfairness where there is junior input into decision-making
In Smith v Secretary of State for Levelling Up, Housing and Communities & Anor, the claimant ran an agency for clients wishing to place advertisements. He applied to Hackney London Borough Council for permission to erect a large advertising billboard in Shoreditch high street.
That application was unsuccessful.
They appealed to the Secretary of State under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 and the Town and Country Planning Act 1990. The Secretary of State appointed an inspector employed by the Planning Inspectorate to determine the appeal.
Following a review in 2018, Appeal Planning Officers (APOs) were introduced to alleviate a shortage of planning inspectors. APOs are usually graduates with a degree relevant to planning who are employed as caseworkers, doing preparatory work to support a decision.
Here, an APO conducted a site visit and recommended rejecting the application. The reasoning and recommendation were accepted by the inspector, who topped and tailed the decision document they prepared without changing their reasoning and conclusion.
The main issue was whether the inspector unlawfully sub-delegated his functions to an inexperienced junior, whose recommendation and reasoning they adopted without alteration, and whether that process was unfair.
The court noted that fairness is always context-specific. In this case, the legal framework required the appointed inspector to determine the appeal, and it was not suggested that they were entitled to delegate their decision-making functions. Here the inspector did not fail to determine the appeal - so they did not unlawfully sub-delegate - but they failed to do so independently of the APO. That was unfair.
The court accepted that an APO could conduct the site visit, help assemble the evidence and report to the inspector, who would make the decision. However, the APO in this case went beyond that and recommended an outcome. The court held that the process was not fair because the APO was required to exercise a professional judgment when they were not professionally equipped to do so. The court distinguished the case from others where the person reporting to the decision-maker is appointed to exercise professional judgment and was qualified and experienced enough to do so.
It considered that the characterisation of their judgment as 'provisional' by the Secretary of State was undermined by the fact that her recommendation provided the inspector with a 'powerful steer'.
Somewhat surprisingly, the unfairness was not cured by the fact that the inspector revisited the APO judgment and had the opportunity to reverse it. And, in an obiter comment, the court considered that it would not have been cured had the claimant been able to make representations on the APO recommendation before a final decision by the inspector.
The decision was therefore quashed.
Public body contracts and amenability to judicial review
R (Sashi Shashikanth) v NHS Litigation Authority, NHS Commissioning Board (aka NHS England) is an interesting case on the ability to use judicial review to challenge contracts made by public bodies.
The claimant was a GP who had contracts with the NHS. They sought to challenge the termination of his contract by the Second Defendant, NHS England, following their rejection of an attempt by the local Clinical Commissioning Group (CCG) to vary the terms of that contract.
The first defendant was the NHS Litigation Authority which acted as contractual adjudicator, upholding that termination under the contract's dispute resolution process.
The relevant issue was whether the decision by the NHS Litigation Authority to uphold the termination of the contract by NHS England could be challenged through judicial review.
Under the National Health Service Act 2006, CCGs commission medical services from GPs. The resulting contracts take one of two forms - a general medical services contract (GMS contract) or an NHS contract.
NHS contracts function as an arrangement between two health service bodies (a commissioner and a provider). They do not create contractual rights or liabilities and therefore cannot be the subject of a private law claim, instead being challenged through judicial review.
GMS contracts, on the other hand, are contracts in the usual sense. They do create contractual rights and liabilities. GMS contract holders may exercise a statutory opt-in right which has the effect of turning their GMS contract into an NHS contract.
The amenability point was important as there was at least one ground that had merit.
NHS England argued that the claimant had not opted to change his GMS contract to an NHS contract, meaning their contract created contractual rights and liabilities. They would therefore have the option of suing on the contract in the ordinary courts in the same way as any party to any other contract, or using the NHS dispute resolution procedure under which the dispute would be referred to the Secretary of State.
The claimant argued that the public services context was essential. The termination decision in this case had a direct effect on the delivery of public services to patients. NHS England was therefore undertaking the public function of deciding disputes about the ways in which NHS services are provided. Likewise, the claimant said that it could not be right that the NHS Litigation Authority carrying out a statutory function delegated by the Secretary of State was not amendable to judicial review.
The judgment provides a useful run through of contractual disputes with public bodies that have been unsuccessfully challenged by judicial review. The court held that 'parties to a contract cannot rely on public law arguments or remedies to improve their contractual position, no matter how 'public' or statutory the context of the dispute'. A decision made through a contractual termination procedure must be challenged by private law action, even in a context connected to public law bodies or principles.
The court acknowledged the possibility that judicial review might be available to challenge the termination of a contract where the termination was fraudulent or in bad faith. However, that was not the issue in this case, so the claim was unsuccessful.
Stop-gap solutions by regulators
The claimant in R (on the application of SSE Generation Ltd) v the Competition and Markets Authority is an electricity generator. It is required to be a party to the Connection and Use of System Code (CUSC), a private law contract between generators and the transmission system operator, National Grid, which sets the charges paid by generators to use the national high voltage electricity transmission system.
The Gas and Electricity Markets Authority (GEMA, better known as Ofgem), the electricity regulator, modified the CUSC to give effect to an EU Regulation which had been retained following Brexit. GEMA accepted that the changes were imperfect in implementing the regulation, but considered that they would better ensure that charges were in line with the regulation than the situation prior to modification. It was intended for this to be an interim solution, with a further modification being made to ensure full compliance with the regulation.
SSE appealed the modifications to the Competition and Markets Authority (CMA). The CMA upheld the modifications and SSE sought judicial review of the CMA's decision. The High Court held that it was unlawful for the CMA to approve GEMA's decision to impose unlawful charges, even as an interim measure that was an improvement on the existing position.
GEMA appealed that finding.
The Court of Appeal recognised that GEMA was confronted by a complex situation in which charges were not in accordance with the law, but where the system could not be brought into compliance in a single step.
Although GEMA had a statutory duty to comply with the law itself, and ensure that those licenced by it also complied, it had a degree of discretion in how to do so. A stop-gap solution was necessary and, in considering whether it was unavoidable that the solution be unlawful, it noted that the nature of the CUSC modification process meant that GEMA was forced to choose between a range of options put forward by CUSC parties. None of those were compliant, including that of SSE. Had GEMA wanted to go with a different solution, it would have had to go through a more cumbersome process set out in the CUSC.
As such, GEMA had no practical option but to choose a non-compliant stop-gap.
The Court of Appeal also commented that the nature of the modification procedures meant that the code was capable of hindering the discharge by GEMA of its statutory duty. It reiterated that, in public law, a decision maker cannot prevent itself from complying with its statutory duties by entering into, or approving, an inconsistent contract. The code cannot take precedence over the duty of GEMA to ensure timely compliance with the law. Insofar as there is a conflict between the code and the statutory duties of GEMA, the latter will prevail.
Therefore, GEMA is not bound by the code when it comes to taking the steps necessary to ensure compliance with the law, and, if the code is an impediment to proper enforcement, it is either inoperative (and GEMA should deploy other powers at its disposal to give effect to its duty) or it needs to amend the code, or both.
A tougher approach to issuing judicial review claims in the closest court
R (Airedale Chemical Company Ltd) v HM Commissioners for Revenue and Customs concerns a minded to transfer order (MTTO) made by the claimant (supported by the respondent) to oppose a transfer of the judicial review claim to the Administrative Court in Leeds.
The claimant's legal team filed the original judicial review claim at the Administrative Court in London, answering 'yes' to the question in Form N461 'Have you issued this claim in the region with which the claim is most closely connected?' As a reason for wanting to be dealt with in the London region, the claimant stated 'London is the region in which the defendant and legal representatives of both of the parties are based.'
The relevant issue in the judgment was how to discern the court with the 'closest connection' in such circumstances.
The parties argued that the claimant, despite being based in Keighley, had instructed solicitors and counsel in London. They noted that the defendant's London office was served with the papers, although it also has a Leeds office, and also argued that requiring travel to Leeds would increase costs due to the requirement for legal representatives to travel from London and possibly stay overnight in Leeds.
The court was not persuaded by the points made and emphasised the geographic nature of 'closest connection'. It stressed that claims cannot become connected to London because of a personal choice to instruct counsel there. The claimant was based in the North East, and the respondent had offices in Leeds, meaning it is 'possible' to administer and determine the claim at the Administrative Court in Leeds. That would be desirable due to the capacity, resources and workload at the various Administrative Courts.
The court therefore concluded that the case should be transferred to the Administrative Court in Leeds, and rejected the MTTO.
The case signals the increasingly robust approach being taken by courts outside London (and most particularly Leeds) to ensure that claims are launched in the most appropriate venue. This can also be seen in two other decisions from the end of 2022 concerning similar matters - R (Subramaniam) v Secretary of State for the Home Department and R (Group for Action on Leeds Bradford Airport) v Secretary of State for Transport (Re Determination as to Venue).
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