In this autumn edition of our quarterly case update, we offer a straightforward and concise overview of six public law and regulation cases from the third quarter of 2024 which highlight important points of principle 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. This edition contains some interesting cases on fairness in decision making, legislative implementation and the application of policies:
- Is there a common law duty to publish a policy on how discretion will be exercised? – R (Northumbrian Water Limited) v Water Services Regulation Authority (Ofwat)
- Intensity of review in environmental JRs and strategy implementation in a legislative context – R (Fighting Dirty) v The Environment Agency (EA)
- The Civil Service Code does not provide basis for civil servants to refuse to implement a lawful Ministerial decision not to comply with unincorporated international law – R (FDA) v Minister for the Cabinet Office & Others
- Fairness and policy in decision-making – R (KT) v Office of the Independent Adjudication and RMO v Secretary of State for the Home Department
- Ofsted's inspection and inspection process held to be fair with adequate reasons being given for its findings – R (on the application of All Saints Academy, Dunstable) v Office for Standards in Education, Children's Services and Skills (Ofsted)
- Edge of 18: Bright line rules and legal aid for young adults – R (Alhasan) v Director of Legal Aid Casework & the Lord Chancellor
Is there a common law duty to publish a policy on how discretion will be exercised?
In our February 2024 edition, we considered the High Court (the Court) decision of R (Northumbrian Water Limited) v Water Services Regulation Authority (Ofwat). It was held that Ofwat had a discretionary power to decide whether, and to what extent, the 'civil emergency' exception (the CE Exception) should reduce financial penalties arising from water supply interruptions caused by civil emergencies when applied for by a water company.
The first two grounds of appeal centred on the interpretation of Ofwat's licence and reporting guidance. The Court of Appeal rejected the appellant's argument that the wording of the guidance meant that, where a civil emergency is established, Ofwat has a duty to forego any financial penalty on a water company for supply interruptions. The Court confirmed that Ofwat does indeed have discretion in this regard and upheld its decision to partly reduce the burden of the penalty that would otherwise have applied.
In terms of the exercise of this discretion, the appellant submitted that Ofwat was only entitled to take into account the appellant's performance in respect of the interruptions to water supply and was not entitled to have regard to other matters.
However, the Court held that the statement in the licence that Ofwat 'shall' take account of performance meant that, while Ofwat did need to consider the appellant's performance, it was also entitled to take account of other things – including the financial impact that accounting for the supply interruptions would have on the appellant over specified review periods.
In the alternative, the appellant's third ground submitted that – if Ofwat did have such a discretion – this was a case where the 'duty of prescription' applied, relying on comments in R (ZLL) v Secretary of State for Housing, Communities and Local Government (2022). In other words, the appellant contended that Ofwat was required to adopt a policy governing the exercise of its discretion in relation to water supply interruptions arising from a civil emergency.
The Court rejected this proposition. It considered that none of the cases relied upon by the appellant, including ZLL, were indicative of a common law duty to adopt a policy setting out criteria as to how a discretion will be exercised.
More broadly, the Court identified the comments regarding the 'duty of prescription' in ZLL as obiter and described the language of a common law 'duty of prescription' as "unhelpful and, potentially, misleading". It asserted that the issue here is whether the exercise of discretion is lawful, and the mere fact that Ofwat had not adopted such a policy did not of itself determine whether the decision was lawful or unlawful.
The Court noted that, although it may well be good practice for a public body to adopt guidance on the exercise of its discretion, that does not mean that there is a common law duty to do so.
Nor was this a case giving rise to such a duty on the facts. Supply interruptions resulting from civil emergencies will be rare and the range of potential considerations variable and wide. There was also no procedural unfairness to the appellant resulting from the lack of a policy as the appellant was able to make representations which were taken into account before the final decision.
Intensity of review in environmental JRs and strategy implementation in a legislative context
In R (Fighting Dirty) v The Environment Agency (EA), the High Court considered whether the EA's decision to remove the target date for implementing its 'Sludge Strategy', without identifying a replacement target date, was reasonable. It held that it was.
The 'Sludge Strategy' proposes moving the regulation of sludge used on agricultural land into the environmental permitting regime.
It was initially issued by the EA in March 2020, with a target date of 2021, which was later moved to 2023. On 1 August 2023, the EA re-issued the strategy again, but this time did not specify any target date.
The claimant contended that the failure to specify a new date was unreasonable.
In particular, the claimant highlighted that, in 2020, maintaining the regulatory status quo (i.e. the 'do nothing' option) in respect of the strategy was considered 'unacceptable'. Yet, by not providing a target date, the EA was leaving the position open-ended and effectively reverting to that 'do nothing' option. There was no evidence that the EA had addressed any alternative target date or undertaken a review of such.
The Court first considered the intensity of review to be applied in environmental judicial review cases. In Aarhus claims, the standard will be the usual one in public law unreasonableness. This can accommodate a range of different intensities of review, including close scrutiny where the Court may 'do' more or 'need' more in order to justify the public authority action as reasonable.
It observed that there will always be context-specific cases which point towards, or away from, such intensity. For example, it noted that the seriousness of an environmental problem and a publicly recognised need for change (upon which this claim was built) may increase the intensity. But that does not necessarily equate to 'imperative urgency'.
Although it considered that careful scrutiny was warranted in this case, the Court considered that the EA had a broad latitude for deciding whether a new date was needed.
The Court found that the EA's decision had been reasonable for a number of reasons, including the following:
- There was no statutory or policy-driven duty on the EA to set a target date, nor any claimed public law legitimate expectation to that effect.
- The legislative power to set a new date sat with the Secretary of State and the EA communicated with the Department regarding removing the target date.
- As no commitment to legislative change had been made by the Secretary of State, any new date would be aspirational.
- It is not unusual for statements of policy intention not to set out a timetable.
- The environmental protection arguments derive from the contents of the Sludge Strategy itself rather than external sources – the publicly recognised need for change has come from the EA itself and it was not going to 'do nothing'.
- This is not an environmental emergency – the use of sludge on agricultural land is currently regulated.
- Environmental protection is 'multi-faceted'. The EA will have a number of competing priorities in ow it deploys its resources. The Court on judicial review is not 'an auditor of resource-deployment or an umpire of policy-prioritisation'.
The Civil Service Code does not provide basis for civil servants to refuse to implement a lawful Ministerial decision not to comply with unincorporated international law
R (FDA) v Minister for the Cabinet Office & Others was a challenge brought by a civil service union relating to the previous government's controversial Rwanda scheme.
The case was concerned with the Civil Service Code (the Code) and the legality of Cabinet Office guidance to civil servants with regard to their obligations under the Code, in the context of the Rwanda scheme (the Guidance).
The Guidance addressed a scenario in which (i) the European Court of Human Rights (ECtHR) indicates to the UK via 'interim measures' that an individual should not be sent to Rwanda pending determination of a legal procedure, but (ii) notwithstanding this indication, a Minister decides to send the individual (the Scenario).
The Guidance states that civil servants implementing the decision in the Scenario would be acting in accordance with the Code (which requires them to comply with the law) and could not refuse to implement the decision on the grounds that non-compliance with the ECtHR's interim measure indication would or might be non-compliant with international law.
The claimant contended that the Guidance was wrong in law as non-compliance with 'interim measures' would clearly violate the UK's international obligations, and as the Code required civil servants to comply with the law, it required them to refuse to act contrary to 'interim measures' (as to do otherwise would be a breach of international law).
The Court confirmed that although the European Convention on Human Rights (ECHR) does not confer a power on the ECtHR to provide for interim relief, the Rules of Court provide that the ECtHR may (exceptionally) indicate 'interim measures' to be adopted where there is 'imminent risk of irreparable harm' to a Convention right.
In the 'dualist' UK constitution, international law does not automatically become domestic law but must instead be actively incorporated into it, for example by an Act of Parliament.
The Court agreed that non-compliance with 'interim measures' would be a breach of Article 34 – which creates a right of individual petition from those claiming to be victims of a breach of the ECHR and imposes an obligation on the contracting State not to hinder the effective exercise of this right – of Article 34 of the ECHR. However, Article 34 is not incorporated into UK domestic law. It is therefore unincorporated international law.
The Court noted that while there is a strong convention that the UK will comply with unincorporated international law, it is possible for domestic law to require or permit actions which breach it. Here the Safety of Rwanda (Immigration and Asylum) Act 2024 provided that the decision on whether to comply with an 'interim measure' was a decision for a minister alone to take. It therefore permitted a decision not to comply - in breach of international law.
The Court held that while civil servants were obliged by the Code to refuse to comply with ministerial instructions that clearly breach domestic law, they were not bound to refuse to implement instructions which are contrary to unincorporated international law. To hold otherwise would be 'fundamentally incompatible with dualism' and to interpret the Code as precluding civil servants from implementing lawful decisions not to comply with 'interim measures' would frustrate Parliament's intention.
Fairness and policy in decision-making
R (KT) v Office of the Independent Adjudication and RMO v Secretary of State for the Home Department) are two successful challenges addressing key issues related to fairness and adherence to policy in decision-making.
In KT, the claimant was a former university student who had been expelled after disciplinary allegations. His appeal to the University's Student Appeals Committee was dismissed, and the claimant subsequently appealed to the Office of the Independent Adjudication (OIA).
The OIA found part of the claimant's complaint justified and proposed recommendations to the university for redress. In response, the university made points indicating that the proposed recommendations were impossible to comply with. The OIA made its final decision on the basis of those points without affording the claimant a chance to respond to them.
The claimant challenged the OIA's decision, including on the basis that it had breached the requirements of procedural fairness.
The Court agreed. It held that although the OIA's scheme for deciding cases did not provide for each party to comment on representations made by the other, the OIA was required to supplement those rules where necessary to ensure fairness.
Fairness is always context specific. In this case, the decision-making process was the resolution of a dispute between the two parties and the points made by the university were of fundamental significance (that the proposed recommendations were impossible). Taken together, these points meant that the OIA had to afford the claimant a chance to comment on the university's submission before making a final decision.
In RMO, the challenge was to a decision by the Secretary of State to house the claimant – an asylum seeker – some distance from Norwich where he was studying for a Master's degree. The claimant was deemed successful and was awarded partial costs.
In RMO v SSHD, the issue was whether the Secretary of State had followed policy and proper procedures in denying the claimant, an Iraqi national, continued accommodation in Norwich under sections 95 and 98 of the Immigration and Asylum Act 1999.
The claimant argued that the Secretary of State had failed properly to apply his asylum accommodation policy properly, particularly the 'Allocation of asylum accommodation policy' (the Policy) by not considering his individual circumstances.
The Court noted that the claimant – who had been an academic in Iraq – had put forward evidence and arguments about the importance of his degree, which he was pursuing with the benefit of a competitively awarded scholarship.
The Policy allowed for temporary accommodation needs to be considered, but there was no evidence that the Secretary of State had actively considered this option, nor engaged with the claimant's individual circumstances.
Instead, the decision simply stated that, under the Policy, location requests on educational grounds were usually granted only for children in their final year of GCSE, A level or equivalent studies. The Court commented that this position worked well where a child could change schools and still study the same national curriculum but was less appropriate in the context of highly specialised Master's degrees.
The decision letter did not contain adequate reasoning strengthening the inference that the relevant circumstances of the claimant, which were not mentioned, were not properly weighed against other relevant factors, and either accepted or rejected in a rational way. Nor was there any suggestion that the claimant's rights under Article 8 of the European Convention on Human Rights had been considered.
Finally, the defendant had approached the Policy in a rigid and inflexible way, without considering the option of temporary accommodation in Norwich until the claimant's course had finished. Additionally, the decision letter lacked a meaningful analysis of how the refusal was reached.
The Court further ruled that the claimant's rights under Article 8 of the European Convention on Human Rights (ECHR) were potentially engaged, but the Secretary of State failed to address or analyse these rights in the decision.
The Court emphasised that decisions under the Policy had to align with human rights obligations, and the Secretary of State's decision was incompatible with both the Policy and relevant human rights legislation. As a result, the decision was quashed.
In both cases, the Court underscored the importance of procedural fairness, transparency, and adherence to published policies in administrative decision-making.
Ofsted's inspection and inspection process held to be fair with adequate reasons being given for its findings
In R (on the application of All Saints Academy, Dunstable) v Office for Standards in Education, Children's Services and Skills (Ofsted), the High Court dismissed the challenge brought by the Academy School (the School) to an Ofsted inspection report.
The School was initially inspected by Ofsted in November 2022 and in the provisional report which followed, the School was graded as 'Good' in four categories, "Requires Improvement" in one category and "Effective" in another, with an overall provisional grade as "Requires Improvement".
In accordance with Ofsted's procedures, this provisional report was reviewed by a more experienced Inspector who raised concerns about inconsistencies in the evidence base and about whether the overall provisional grade was consistent with the explanatory commentary. This led to a Senior Inspector concluding that the initial inspection had failed Ofsted's internal quality standards, and it was deemed to be incomplete. A second inspection was undertaken in January 2023.
The second inspection team took into account evidence gathered from the first inspection and also from their own observations and discussions and gave significantly lower grades on individual categories than the first inspection, with a provisional overall grade of "Inadequate".
These provisional findings were ultimately (following consideration by Ofsted inspectors not involved in the inspection of the School's comments on the draft report and Ofsted's internal investigation of a complaint lodged by the School about the inspection and inspection process) upheld in the final report.
Having received an advance copy of the final report the School issued its judicial review and applied for interim relief to restrain the publication of the final report. The application for interim relief was refused – see judgment here – and permission was given on only two of the ten grounds sought by the claimant.
Ground 1 – The School contended that it was not provided with sufficient reasons, explanation or evidence to enable it fairly to contest the findings about it in the draft report.
The Court considered this to be a procedural fairness challenge (as there is no general public law duty to give reasons for a draft or proposed decision). Having considered the applicable legal principles and all of the information and explanations given to the School during the inspection process and in the draft report, it concluded that the School had been provided with sufficient information to enable it fairly to contest the findings in the draft report.
Gound 2 – The final report did not give sufficient reasons, explanation or evidence to enable the School or any other reader to understand the adverse findings, the basis of the findings or the change in assessment between the original inspection and the second inspection.
The Court held that the final report contained all of the matters which it needs to contain under the governing statute and gave sufficient detail to enable the School and any other reader (including parents) to understand the adverse findings. It also held that the final report did not need to give details for the change between the provisional conclusions of the first inspection and the final conclusions of the second inspection as to do so would have caused confusion without any practical benefit. It was sufficient that this information had been provided to the School's leadership team.
Edge of 18: Bright line rules and legal aid for young adults
In the case of R (Alhasan) v Director of Legal Aid Casework & the Lord Chancellor, the High Court dismissed the claimant's judicial review claim against both defendants. The case concerned important issues related to legal aid entitlement for asylum seekers, particularly those who had initially made a claim for asylum as minors but had since reached the age of majority.
The claimant (Alhasan) had arrived in the UK as a child and made an asylum claim while he was still a minor (referred to as a "Child-Claim"). After turning 18, his legal representatives submitted his Statement of Evidence Form (SEF) and a witness statement to support his case. As part of the asylum process, Alhasan was notified of the date for his asylum interview. However by this time, he had already reached 18 years of age, which affected his legal aid entitlement.
Under regulation 3 of the Civil Legal Aid (Immigration Interviews) (Exceptions) Regulations 2012 (the 2012 Regulations), minors are automatically entitled to have legal representation funded by legal aid during their substantive asylum interviews. However, as Alhasan had turned 18 before the interview, he was no longer eligible for automatic legal aid support, including the presence of a lawyer at his interview.
The Greater Manchester Immigration Aid Unit (GMIAU) – representing Alhasan – decided not to request a deferral of the interview while it made its application for Exceptional Case Funding (ECF) from the Director of Legal Aid Casework and the application had been decided upon (as waiting could have prolonged the asylum process). Instead, it decided that the lawyer would attend "at risk" – that is the lawyer would initially attend without confirmed legal aid funding and if the ECF application were successful, the funding would be backdated to cover the lawyer's attendance.
The interview went ahead with the GMIAU lawyer present, and Alhasan was eventually granted asylum.
Subsequently, the GMIAU's application for ECF funding was refused – a decision that was upheld on review. The claimant challenged the decision contending that refusal constituted unlawful discrimination, arguing that the law treated him less favourably compared to those who were still minors, despite the fact that his asylum claim had been initiated when he was a child. This difference in treatment, he contended, was unjustified and discriminatory.
The Court recognised that there was a "contextual comparability" between the two groups in that both groups shared certain similarities, such as vulnerability due to their background as asylum seekers. However, the question for the Court was whether the differential treatment was manifestly without reasonable foundation, and it concluded that was not the case.
In doing so it noted that the case was about the assistance of a lawyer in an important decision-making context, but it was not about access to a Court or effective judicial protection and that the different treatment was a general measure of economic and social strategy which prioritised economic resources for areas of greatest need.
The Court ruled that the difference in legal aid availability under the 2012 Regulations for legal representation at an asylum interview for persons who had claimed asylum as a child but had turned 18 by the time of the interview and those who had not turned 18, was justified and proportionate.
Read the original article on GowlingWLG.com
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