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Judicial Review Wednesday, 22nd February 2017
Jonathan Griffiths - Geldards LLP
Virginia Cooper – Bevan Brittan LLP
www.emlawshare.co.uk
Advanced Seminar:
Judicial Review
Jonathan Griffiths
Partner, Geldards LLP
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Part 1: A brief review of the
basic Judicial Review principles
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• What is Judicial Review?
“the process by which the High Court exercises its
supervisory jurisdiction over the proceedings and
decisions of inferior courts, tribunals and other bodies
or persons who carry out quasi-judicial functions or
who are charged with the performance of public acts
and duties.”
Lord Diplock, Council of Civil Service Union v the Minister
for the Civil Service
Background
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• It differs from an appeal
“Judicial Review is concerned not with reviewing the
merits of the decision in respect of which the application
for judicial review is made, but the decision making
process itself.”
Lord Brightman, Chief Constable of the North Wales Police Force
v Evans
Background
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• CPR 54(1) 2(a) – a “claim for judicial review” means
a claim to review the lawfulness of an enactment; or
a decision, action or failure to act in relation to the
exercise of a public function
• Reviewable bodies
– those who exercise a public function
• Reviewable actions
– not every decision or action of a public body will be a
public function susceptible to judicial review. There
must be a public law element
Scope
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• A remedy of last resort – alternative mechanisms for redress (such as an appeal
procedure) should generally first be exhausted
• Standing – a claimant must have a sufficient interest in the matter to
which the claim relates
• Timing – a claim must be filed promptly and in any event no later
than 3 months after the grounds to make the claim first
arose –CPR 54.5(1). The time limits may not
be extended by agreement of the parties
NB Procurement and Planning cases
Scope
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Illegality
• The Courts will intervene to ensure that the powers of
public decision-making bodies are exercised lawfully
• Such a body will not act lawfully if for example it acts in
– Excess of Power - acting outside the limits of its
jurisdiction or otherwise outside its powers (i.e. acting
ultra vires)
• Imperial Tobacco v Sec of State for Health
Grounds
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– Abuse of Power - pursuing an objective other than that
for which the power to make the decision was conferred
• Municipal Council of Sydney v Campbell
– Error of law – where a decision or action is founded on
an incorrect interpretation of the law e.g. the
misinterpretation of a statute
– Unauthorised delegation of powers – where a power is
given to someone by statute, it cannot be delegated to
someone else unless there are express or implied
powers to do so
• e.g. Vine v National Dock Labour Board
Grounds
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– Where acting -
• in bad faith – where a decision is taken dishonestly or
maliciously; or
• for an improper purpose – exercising a discretionary power
for a purpose alien to that for which it was granted
– e.g. Porter v Magill
Grounds
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A failure to exercise a discretion
• Acting as if a discretion is fettered, such as the rigid
application of an adopted policy, rather than a
consideration of each case on its merits - e.g. Corrie v London County Council
Irrationality & unreasonableness
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• Wednesbury “unreasonableness” – “a decision so
unreasonable that no authority could ever have come
to it”. A high threshold test
• When exercising a discretion, a decision maker should
only take relevant factors into account and not consider
irrelevant matters
– relevant considerations are sometimes set out in the
governing statute
– e.g. Shell v Lewisham
– e.g. Fewings v Somerset County Council
– The flaw must have been material
Abuse of discretion
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• This covers a range of procedural standards including:
– a failure to observe statutory provisions or procedural
rules
– a failure to observe the principles of Natural Justice
• the rule against bias either actual or apparent
• the right to a fair hearing
– including prior notice of the process and the allegations; and
– a right to be heard
Procedural Impropriety &
Unfairness
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− the duty to give reasons
• no general duty to give reasons for an administrative
decision but there are substantial exceptions
• any reasons given must be intelligible and adequate
Procedural Impropriety &
Unfairness
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• Where a public decision-maker changes, or proposes
to change an existing policy or practice and there is
an expectation that the body will act in a certain way
• “where a public authority has made a promise or
some other commitment which represents how it
proposes to act in the future, the law will require the
promise to be honoured unless there is an overriding
public interest in not doing so and it is proportionate
having regard to a legitimate aim pursued in the public
interest”
Lord Woolf, Coughlan v North and East Devon Health
Authority
Legitimate expectation
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• It can arise from an express promise, an implied
representation, consistent past practice, or from a
policy
• The representation must be clear, unambiguous and
unqualified; be entitled to be relied upon; and be relied
on to the claimant’s detriment
• Contrast
– a procedural legitimate expectation - an opportunity to
comment
– a substantive legitimate expectation – an
enforceable expectation of a substantive benefit
Legitimate expectation
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• Procedural Legitimate expectation
– e.g. Bhatt Murphy v Independent Assessor
• “The paradigm case arises where a public authority has
provided an unequivocal assurance, whether by means of
an express promise or an established practice, that it will
give notice or embark upon consultation before it changes
an existing substantive policy.”
• “the court will not allow the decision maker to effect the
proposed change without notice or consultation, unless the
want of notice or consultation is justified by the force of an
overriding legal duty owed by the decision
maker, or other countervailing public interest
such as the imperative of national security.”
Legitimate expectation
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• Substantive legitimate expectation
– “A Substantive legitimate expectation constitutes a
specific undertaking, directed at a particular individual or
group, by which the relevant policy’s continuance is
assured”. Withdrawal would be “conduct equivalent to a
breach of contract or representation”. Laws LJ, Bhatt
Murphy
– e.g. Coughlan, where a chronically ill tetraplegic had
been assured of a home for life at Mardon House
– the class is likely to be small
Legitimate expectation
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Human Rights Act 1998
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The following remedies are discretionary
• Remedies specific to judicial review proceedings
– Quashing order
– Prohibition order
– Mandatory order
• Other general remedies are available
– Declaration
– Injunction
– Damages
Remedies
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Part 2: Consultation
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The application of the duty of fairness is extremely case-
sensitive
“Judgments are not to be construed as though they were
enactments of general application, and the extent to
which judicial dicta are a response to the particular
factual matrix of the case under consideration must
always be born in mind”.
Sullivan J, Greenpeace v Secretary of State for Trade
and Industry
Consultation overview
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• When to consult
• How to consult
• Specific issues arising in recent consultation cases
– Discarded alternative options
• Q&A
Consultation overview
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Express statutory requirement
• e.g. Moseley v Haringey
Legitimate expectation
• It can arise from
– a promise or representation that consultation will take
place
– a course of practice
When to consult
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A promise or representation
• Silus Investments v Hounslow
– “…the Defendant’s representation on its website that
there would be a consultation on the proper designation
gave rise to a legitimate expectation to those affected
including the Claimant, that they would be consulted.....”
A course of dealing
• Unilever v IRC
When to consult
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• Although an adaptable concept, it should be rare that
fairness requires consultation in the absence of an
express duty or a legitimate expectation
• It can arise where the absence of consultation would
be
– an abuse of power
– a failure of good administration
– a lack of straightforward dealing
Fairness
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Luton v the Secretary of State for Education
• Concerned the abrupt termination of funding for the
“Building Schools for the Future” project by the new
Secretary of State following the general election of May
2010
Examples of the Fairness Test
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Luton v the Secretary of State for Education
• “..the way in which the Secretary of State abruptly
stopped the projects in relation to which…..approval
had already been given … without any prior
consultation with the five claimants, must be
characterised as being so unfair as to amount to an
abuse of power. However pressing the economic
problems, there was no “overriding public interest”
which …. justifies the lack of any consultation…..”
Examples of the Fairness Test
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L&P v Warwickshire County Council
• “This case was an example of a budget being regularly
and constitutionally set by a local authority in the
present time of austerity. All democratic procedure and
safeguards were followed. It simply cannot be said that
to make that decision without prior consultation was so
conspicuously unfair as to amount to an abuse of
power.”
Examples of the Fairness Test
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L&P v Warwickshire County Council
• “I have explained that cases falling within category (iii)
[unfairness] will be rare” “I cannot conclude that this
case comes remotely close to conspicuous unfairness
amounting to an abuse of power as was so obviously
present in the Luton case.”
Examples of the Fairness Test
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Gunning v Brent
• Consultation must take place when the proposal is still
at a formative stage
• Sufficient reasons must be put forward for the
proposals to allow those consulted to give an intelligent
response
• Adequate time must be given for consideration and
response
• The product of the consultation must be
conscientiously taken into account
How to Consult: Basic
Requirements
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The Gunning principles (or Sedley criteria) have
subsequently been approved by
• the Court of Appeal, in Coughlan v North and East
Devon Health Authority
• the Supreme Court in Moseley v Haringey - “The time
has come for this court also to endorse the Sedley
criteria”. “It is hard to see how any..[of the 4
requirements].. could be rejected or indeed improved”
How to Consult
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Coughlan
• Whether or not consultation is a legal requirement, if it
is embarked upon it must be carried out properly
• Consultation is not litigation
• The consultation process was open to criticism but was
not unlawful
Other established principles pre
Moseley
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Sullivan J in
• Greenpeace v the Secretary of State for Trade and
Industry - the test is not whether something went
wrong but whether “something went clearly and
radically wrong”
• JL and AT Beard v the Environment Agency - “whether
the process was so unfair as to be unlawful.”
Other established principles pre
Moseley
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Vale of Glamorgan v Lord Chancellor
• “Consultation is not negotiation. It is a process within
which a decision maker at a formative stage in the
decision making process invites representations on
one or more possible courses of action.”
Other established principles pre
Moseley
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Case Studies (See Handout)
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The historic position Vale of Glamorgan v Lord
Chancellor
• “there is no general principle that a [minister] must
consult on all the possible alternative ways in which a
specific objective might arguably be capable of being
achieved. It would make the process of consultation
inordinately complex and time consuming if that were
so.”
• earlier cases ( e.g. Medway) where other possible
proposals should have been consulted on
were described as “exceptional”
Consultation on discarded
options
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United Company Rusal Plc v London Metal Exchange
• “The courts have to allow the consultant body a wide
degree of discretion as to the options on which to
consult”
• “The [common law] duty to provide sufficient
information does not extend to providing options or
information about proposals which it is not making
unless there are very specific reasons to do so.”
Consultation on discarded
options
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• “It would considerably increase the burden for
consultant bodies if they had to consult on all the
options which they were not advancing.”
• “In my judgment, the case law shows that the
explanation provided by a consultant body in its
consultation document is not unfair unless something
material has been omitted or something has been
materially misstated.”
Consultation on discarded
options
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• A statutory duty to consult on the Council’s draft
scheme to address the abolition of the national
mechanism by which Council Tax Benefits were
provided
• Each Council was required to put in place a local
scheme, known as Council Tax Reduction Schemes to
provide financial assistance to those previously in
receipt of CTB
The Supreme Court view -
Moseley v Haringey
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• The Council’s consultation was limited to a proposal to
cut support in line with the cut in government funding
and the options that followed. No reference was made
to the alternatives of:
– Increasing Council Tax
– Reducing spending
– Deploying capital reserves
The Supreme Court view -
Moseley v Haringey
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• “At present the government gives us the money we
need to fund Council Tax Benefit in Haringey. We will
receive much less money for the new scheme… This
means that the introduction of a Local Council Tax
Reduction Scheme in Haringey will directly affect the
assistance provided to anyone below pensionable age
that currently involves council tax benefit.”
The Supreme Court view -
Moseley v Haringey
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• By presenting a cut in support as the inevitable
consequence of the funding cut, Haringey’s choice not
to account for the shortfall in other ways was disguised
• The alternatives were not obvious and even if they
were, the reasons for their rejection were not
• The consultation document was misleading and the
consultation was unfair
The Supreme Court view -
Moseley v Haringey
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• Lord Wilson – the starting point (regardless of the
origin of the duty to consult) is the common law duty of
procedural fairness
• “Sometimes, particularly when statute does not limit
the subject of the requisite consultation to the preferred
option, fairness will require that interested persons be
consulted not only upon the preferred options but also
upon arguable yet discarded alternative options….even
when the subject of the requisite consultation is limited
to the preferred option, fairness may nevertheless
require passing reference to be made to
arguable yet discarded alternative options”
Different approaches
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• Lord Reed – focused on the statutory context and
purpose of the duty to consult, which can vary greatly
from one statutory context to another
– The context in this case aimed at public participation in
the decision
– The consequence was a requirement for a wide ranging
consultation to enable the public to make an intelligent
response. This meant a requirement to provide
alternatives to the preferred option
Different approaches
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• Other points identified by Lord Wilson from earlier
cases
– The identity of the consultees is important. The
economically disadvantaged may need a presentation
with more specificity. Consultees with specialist
knowledge may require less detailed knowledge than
members of the public
– The demands of fairness are likely to be higher when an
authority contemplates depriving someone of an existing
benefit or advantage than where the claimant
is a bare applicant for a future benefit
Different approaches
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Has Moseley changed the legal landscape on
consultation?
• Has it fundamentally altered how consultation
exercises should be carried out in the future?
• When and in what circumstances must a public
authority consult on alternative proposals which it has
rejected?
• Does it require at least passing reference to discarded
alternatives in most cases and the reasons for
their rejection?
• Moseley v Rusal
A change in approach?
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Cases Since Moseley
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• A decision to cease the direct provision of transport to
day centres for adults with severe learning disabilities.
There was a legitimate expectation of consultation. The
claimant asserted that the consultation documents
were materially misleading and unlawful
• There was no evidence that consultees had been
misled which was the case in Moseley. The challenge
failed as the process overall had been fair
Robson v Salford City Council
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• “the decision in Moseley is largely an endorsement at
Supreme Court level of principles already established
at the level of the Court of Appeal …..”
• “In Moseley the consultation material conveyed a
positively misleading impression that other options
were irrelevant. There is nothing equivalent to that in
this case.”
• “What Lord Reed said in Moseley about the importance
of public participation was in the context of the
particular statutory duty to consult, whereas
there was no such duty here.”
Robson v Salford City Council
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• The budget for social care services for disabled
children was cut
• It was alleged that the Council had acted unlawfully in
not consulting on its savings targets
• The claim failed as
– (a) it was brought out of time; and
– (b) it was not “conspicuously unfair” not to consult
L&P v Warwickshire County
Council
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• Lord Reed (in Moseley) “was saying that for this
particular statutory consultation, the legislative
intention was that the people should in a meaningful
way “participate” in the decision making process. That
is a long way from what the common law is doing when
it imposes a duty to consult. Rather, it is imposing a
requirement that the decision-making process is fair
not that the consultees should (at least up to a point)
actually be decision-makers as well.”
• Whether something had gone “clearly and
radically wrong” remained the test post
Moseley
L&P v Warwickshire County
Council
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• “The decision to set a local authority budget at a
certain level and to make reductions in certain areas
must surely be the very quintessence of a political
decision. A challenge to a budget proposal should
normally be made through elected representatives…
That is what local democracy is all about. The main
challenge here does to my mind raise a serious
constitutional question.”
L&P v Warwickshire County
Council
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• Hard decisions on cuts do not make them unlawful.
“That does not mean of course that every political
decision is free from challenge in judicial review
proceedings. It does mean however that that I must be
especially careful not to cross the line into the political
arena and get lulled into making a judgment about the
merits of a democratic decision which imposes a cut”.
L&P v Warwickshire County
Council
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• The Council failed to comply with 3 of the Gunning
principles
– “The summary and details given were too brief and
superficial to provide for a meaningful consultation.”
– “The seven day period from 19 to 27 August was too
short, especially during a period of the year when many
people are away”
– “The product of the consultation was not “conscientiously
taken into account”.
Silus Investments v Hounslow
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• Consultation on the Council’s proposal to cut its adult
social care budget. It was alleged that the council had
failed to provide adequate alternatives to the proposal
– The issue was whether the defendant was under a
common law duty to include information about realistic
alternative options. The claim failed
T v Trafford MBC
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– “It cannot be the case that if an authority does not
consult on rejected options, and only presents a
preferred option for consultation, then that must be
misleading. It is one thing to positively mislead as in
Moseley. It is quite another for the Council… to put
forward a point of view that…. It was not realistic to
….increase council tax or use reserves and therefore to
focus the consultation on savings in service.”
– On the proper interpretation of Moseley, it is only
sometimes that fairness will require consultation on
arguable yet discarded alternative options
T v Trafford MBC
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• Was Mostyn J correct to say that Sullivan J’s test of
whether “something has gone clearly and radically
wrong”, survives the decision in Moseley? N.B. Baird
T v Trafford MBC
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• A decision to cease funding free nursery education,
following a comprehensive review of Council services
with a view to balancing its budget
– It was argued that Moseley established a general
proposition that it is necessary to invite views on possible
alternatives so as to enable an intelligent response. The
consultation had not done so and was therefore unlawful.
The challenge failed
– “There is no inviolable rule established by Moseley that
alternatives have to be consulted upon in every
consultation exercise.”
Morris v RCT
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• “Sometimes fairness might require [consultation on
alternatives] so that consultees could make sense of
the consultation exercise. When that is the case the
alternatives will have to be realistic alternatives
• The alternative in this case was simply not to cut
nursery education. That option had been put to
consultees
• “It is not an error to consult on a preferred option, if it
clear from the materials provided how and why that
option has been devised.”
Morris v RCT
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• There was an expansion to the original consultation
process following the successful judicial review
challenge by Mr Draper in 2014
• The first claim focused (in part) on Gunning 1, whereas
this challenge focused on Gunning 2, in that it was
claimed that the consultation did not adequately deal
with any alternative proposals
Draper v Lincolnshire CC
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• The challenge failed
– “Any such consultation document has to achieve an
acceptable minimum standard; it is not a counsel of
perfection.”
– The consultation document made it clear that it should
be read with the earlier documents, responses and
report; links were provided to earlier documents; and
even though there was a preferred option, alternatives
would be considered. The second consultation in
conjunction with the earlier material achieved the
“acceptable minimum standard.”
Draper v Lincolnshire CC
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• The case concerned a review of the Council’s library
services and specifically whether Rhoose Library
should become a community-led library having been a
“village” library
• It was alleged that the consultation process had been
unfair, as consultees should have been consulted on
alternative options
Tilley v Vale of Glamorgan Council
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• The challenge failed
– “Whether there is any obligation to consult on
alternatives will depend on the facts of the case in hand,
and, in particular, on whether there are any realistic
alternatives.”
– “It is clear from …. Lord Reed’s judgment that in some
cases there will be no obligation to consult on
alternatives; and even when such an obligation does
arise, it may not require an authority to discuss
alternatives in detail, or the reasons why they
have been rejected.”
Tilley v Vale of Glamorgan Council
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– “This was, therefore, a very different case on its facts to
Moseley. None of the choices made by the Council in
this case was disguised. The choices were evident from
the consultation document and from the review.”
Tilley v Vale of Glamorgan Council
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• A proposal in relation to changes to acute hospital care
in Greater Manchester. There was a statutory duty to
consult
• The challenge failed as the consultation had met the
legal requirement
• “Following Lord Reed in Moseley, the starting point
must be, what was the purpose of the statutory duty?”
– “At one end of the spectrum a consultation could perform
the function of a referendum, or an exercise in direct
democracy, determining the decision for the
public body through a popular vote.”
Keep Wythenshawe Special v
NHS Central Manchester
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– “At the other end of the spectrum the purpose of the
consultation may simply be to elicit views about a
proposal to which regard will be had as an influence on
the decision but which (even if it produced an
overwhelming majority of opinion opposed to the
authority’s proposal) could not be binding on the
authority.”
Keep Wythenshawe Special v
NHS Central Manchester
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• Edwards v Flintshire CC
• West Berkshire DC v Secretary of State for
Communities
– Change of policy on affordable housing
– Was sufficient information provided for intelligent
consideration?
– Did Secretary of State give consideration to the product
of the consultation?
Recent Cases
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• Friends of Finsbury Park v Haringey LBC
• Jones v Denbighshire CC
• Derbyshire CC v Barnsley, Doncaster, Rotterham and
Sheffield Combined Authority
Recent Cases
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Consulting on Alternative Options
• There is no general rule that alternative options must
be consulted upon. If there were, the process of
consultation would be inordinately complex and time
consuming
• It is not an error to consult on a preferred option, if it is
clear how and why that option has been devised
Conclusions
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• It may be necessary to make passing reference to
discarded alternative options
• In reviewing these issues consider:
– Who is being consulted?
– Is anyone being deprived of a benefit?
– Sometimes a reference to the alternatives will be needed
to enable consultees to make sense of the consultation
– Would a failure to consult on or refer to alternatives
create a misleading impression? Are any of the choices
disguised? Only realistic alternatives have to
be considered
Conclusions
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– Is the duty to consult a statutory requirement? If so, what
does the statue require? Is the requirement to elicit
views, require participation or a local referendum?
– If a common law duty to consult, sometimes fairness will
exceptionally require that alternative options must be
consulted on, and whether it does turns on the facts
• NB a fairness test is open ended which gives considerable
leeway to Judges. It would be advisable to structure a
consultation with more care, when the subject matter is
likely to prove particularly controversial
Conclusions
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– See Government Guidance 2016
– Statistics
Practical Considerations
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Q&A
Advanced Seminar:
Judicial Review
Virginia Cooper
Bevan Brittan LLP
Part 3: Equalities and Human
Rights
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Equality Act 2010
• Consolidating anti-discrimination legislation
• Former duties to have regard to the need to
promote equality replaced by PSED
• Extension of protected characteristics to:
– Age
– Gender reassignment
– Pregnancy/maternity
– Religion/belief
– Sexual orientation
www.emlawshare.co.uk
Public Sector Equality Duty
• Section 149, Equality Act 2010:
A public authority must, in the exercise of its functions,
have regard to the need to:
(a) Eliminate discrimination, harassment, victimisation;
(b) Advance the equality of opportunity between persons
who share a protected characteristic and those who
do not share it; and
(c) Foster good relations between persons who share a
protected characteristic and those who do not share
it.
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R (Elias) v SoS for Defence
“It is clear that the purpose of [section 71] to require
public bodies to whom that provision applies to give
advance consideration to issues of [race] discrimination
before making any policy decision that may be affected
by them. This is a salutary requirement, and this
provision must be seen as an integral and important part
of the mechanisms for ensuring the fulfilment of the aims
of anti-discrimination legislation.” (emphasis added)
- Per Arden LJ
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Predecessor duties
• Section 71, Race Relations Act 1976
• Section 49A, Disability Discrimination Act 1995
• Section 76A, Sex Discrimination Act 1975
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Bodies subject to the PSED
• Public authorities
As listed in Schedule 19, Equality Act 2010:
Ministers; Government departments; local
authorities; NHS Trust; governing bodies of
maintained schools and further/higher education
institutions; certain regulatory bodies; chief
constables; and the armed forces amongst others
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Bodies subject to the PSED
• Persons who are not public authorities but
who exercise public functions
Public Function
A function of a public nature for the purposes of the
Human Rights Act 1998…
Duty
PSED only applies to the exercise of such public
functions (and not any other functions)
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Scope
• “in the exercise of its functions”
PSED applies not just to formulation of policies, but
also the application of such policies to an individual
case. The PSED will apply to: (i) the discharge of a
statutory function; (ii) the exercise of a discretion;
and (iii) the carrying out of a common law obligation
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Scope
• “A function of a public nature for the purposes of
the Human Rights Act 1998”
– Function is to be taken at its normal meaning
(Pieretti v Enfield LBC [2010])
– It is the nature of the function that matters
rather than the person exercising the function
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Scope
• Example factors to consider:
– Is the organisation publicly funded?
– Are the powers being exercised conferred by
legislation?
– Is the organisation providing a public service?
• Is the organisation closely linked to a public
authority?
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Scope
Exceptions (Schedule 18, EA 2010)
• Age, race, religion, belief
PSED does not apply to these protected characteristics
in the exercise of certain immigration functions
• Age
PSED does not apply to the characteristic of age for
functions relating to the provision of: (i) education to
children in schools; (ii) benefits, facilities or services to
children in schools; and (iii) accommodation, benefits or
other facilities pursuant to the Children Act 1989
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Specific duties
• Duties of public authorities exercising public
functions to publish:
– Equality information demonstrating compliance
– Equality information about employees (if >150
employees)
– Equality objectives to meet the PSED
Equality Act 2010 (Specific Duties) Regulations 2011
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Discharging the PSED
• “Due regard”
- that "which is appropriate in all the circumstances"
(See R (Baker) v Secretary of State for
Communities and Local Government [2008])
- what is required in any given context is "fact
sensitive and varies considerably from situation to
situation, time to time and stage to stage."
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Discharging the PSED
• R (Brown) v SoS for Work and Pensions [2008]
A public authority must be able to evidence that it
had had regard to the impact of its proposed policy
on equality:
- Proper analysis of all relevant material and an
appreciation of the duty to have due regard
- Not merely a ‘box ticking’ exercise
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Discharging the PSED
• R (Brown) v SoS for Work and Pensions [2008]
– PSED is a continuing duty and should be
reconsidered if new information comes to light
– PSED is non-delegable
– PSED should be exercised with rigour and with
an open mind
• Principles confirmed by the Court of Appeal in R
(Domb) v Hammersmith & Fulham LBC [2009]
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Discharging the PSED
• Not acceptable for an organisation to say it was
unable to comply with the PSED because it lacked the
evidence on a particular issue
• Consultation
• Protected characteristic representative focus groups
• Obtaining information on the potential impact of the
proposed policy
– Numbers likely to be affected
– Demographics in the area
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Discharging the PSED
• Cumulative effect of each aspect of the policy in
addition to the policy as a whole
• Reasons for reaching a conclusion that will stand up
to internal and external scrutiny
• Equality should be considered alongside other factors
(eg, financial considerations). However, a public
authority cannot avoid PSED compliance by claiming
that it lacks the resources to do so
• Whatever course of action is adopted, ensure that the
reasons for doing so are well-documented
www.emlawshare.co.uk
Equality Impact Assessments
• No legal obligation to complete an EIA
• But EHRC guidance favours undertaking an
analysis of the effects on equality of a particular
decision (equalities analysis)
• It will be difficult to demonstrate having had ‘due
regard’ to the PSED without evidence of an
equalities analysis, which may be facilitated by an
EIA
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Non-compliance with PSED
• Powers may be exercised by the EHRC to:
– Assess compliance (s31, Equality Act 2010)
– Issue a compliance notice (s32, Equality Act
2010) requiring:
• Compliance with duty within 28 days; and
• Information to be provided on steps taken,
or to be taken, to ensure compliance
– Apply to High Court for an order requiring
compliance with a notice
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Non-compliance with PSED
• A failure to comply with the PSED may also be
challenged by way of Judicial Review, e.g:
– R (Elias) v SoS for Defence
– R (Kaur) v Ealing LBC
• Section 30(1), Equality Act 2010:
– The EHRC shall have sufficient standing to
commence or intervene in JR proceedings for
failure to comply with PSED
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Non-compliance with PSED
• Judicial review grounds
– Procedural impropriety
• Failure to have due regard
– Irrationality
• Lawfulness of decisions which emerge from
equalities analysis
• Adequacy of steps taken/information
obtained
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Non-compliance with PSED
• Usual remedy is quashing of the decision in
question
• However, in limited circumstances the remedy
may be restricted to a declaration of non-
compliance where a quashing order would cause
administrative chaos
– See R (Hunt) v North Somerset Council [2013]
where the decision had already been
implemented and budgetary measures taken
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Pertinent cases
• R (T) v Sheffield City Council [2013]
- Challenge to SCC’s decision to stop paying subsidies to 20
nurseries
- SCC defended its decision to axe the grant payments as a
consequence of the government's policy change on early years
funding and a redistribution to fund free early years learning
- Although it was not mandatory, SCC had pursued a formal EIA
assessment process in relation to its proposals and prepared
preliminary (and then very detailed) EIA reports for the Cabinet
meeting taking the decision
www.emlawshare.co.uk
Pertinent cases
• R (T) v Sheffield City Council [2013]
- The High Court held that SCC had undertaken a thorough and
conscientious assessment process and therefore the claimants’
challenge failed
- Provided the court is satisfied that the local authority has
rigorously considered its duty so that there is an appreciation of
the potential impact of its decision on equality objectives and the
desirability of promoting them, it is for the decision-maker, and
not the courts, to decide how much weight should be given to the
various factors informing the decision
www.emlawshare.co.uk
Pertinent cases
• R (Logan) v London Borough of Havering [2015]
- The High Court held that changes to a council tax scheme were
not discriminatory for the purposes of the PSED and Articles 1 of
the First Protocol and 14 of the ECHR.
- However, there had been a failure by the full council to have due
regard to the PSED as not every member of the council had been
provided with a report and accompanying equality impact
assessment looking at the possible adverse impact of the
changes
www.emlawshare.co.uk
Pertinent cases
• R (Logan) v London Borough of Havering [2015]
- Reminder to local authorities making decisions about the
importance of ensuring that all decision-makers have had sight of
and had an opportunity to look at key reports and documents
- A failure to have considered such documents will likely result in a
court finding that "due regard" has not been had to the PSED
www.emlawshare.co.uk
Pertinent cases
• R (Logan) v London Borough of Havering [2015]
“In my judgment, the EIA was adequate to enable
members who read it to have due regard to the PSED,
but there was insufficient evidence to indicate that the
decision makers had accessed the EIA attached to the
officers' report or had understood the importance of
reading it in order to discharge their statutory obligation.
It is not sufficient to assume that they could have done
so and therefore would have done so.”
www.emlawshare.co.uk
Pertinent cases
• Blake v London Borough of Waltham Forest [2014]
- The High Court quashed the London Borough of Waltham
Forest's decision to revoke a licence to operate a soup kitchen in
a particular car park
- The vulnerable group was correctly identified by the Council as
potentially directly affected by the revocation decision
- The Council also correctly assumed that its decision would have
a disproportionately adverse on effect the elderly, the disabled
and other vulnerable people
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Pertinent cases
• Blake v London Borough of Waltham Forest [2014]
- However, the Council failed to identify the most likely adverse
impact on the vulnerable group and engage with mitigating
measures (which is that the soup kitchen would close).
- The Council instead examined and assessed a hoped for and
much less serious impact (relocation to a new site). The decision
was accordingly taken without due regard to the PSED
- Reminder that the duty to have regard to the PSED is more than
simply a requirement to have general regard; real thought must
be given to the PSED and its requirements
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Pertinent cases
• R (D and S) v Manchester City Council [2012]
- The Claimant alleged the Council had failed to have due regard
to the PSED when reducing its social care budget
- The High Court held the Council identified an adverse impact of
the budget proposal and included specific budget contingency to
ensure that assessed eligible social care needs were met
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Pertinent cases
• R (D and S) v Manchester City Council [2012]
- The court also noted that the Council conducted a fair
consultation and drew Members attention to the PSED in the
report on the revenue budget that was before the Members.
Accordingly, the Council’s decision was upheld
- The court suggested that where steps to gather information have
been taken by the decision maker, it will review the sufficiency of
those steps only on irrationality grounds
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Pertinent cases
• London Borough of Hackney v Haque [2017]
− Relationship between the PSED and authority's duty under Part
VII Housing Act 1996 to "secure that accommodation is available
for occupation by the applicant"
− The court stated that the concept of due regard was to be
distinguished from a requirement to give the PSED
considerations specific weight. It was not a duty to achieve a
particular result
− The judge was wrong to base his analysis upon a supposed
general principle requiring the reviewing officer to spell out in
express terms reasoning about whether an applicant does or
does not have a protected characteristic, whether the PSED duty
is in play and if so, with what precise effect
www.emlawshare.co.uk
Pertinent cases
• London Borough of Hackney v Haque [2017]
− The reviewing officer's analysis showed an appropriate focus on
H's needs, and upon the extent to which the accommodation
reasonably met them, bearing in mind that the PSED attributed
no specific weight to the considerations to which there had to be
due regard, and determined no particular outcome
− “The allocation of scarce resources among those in need of it
calls for tough and, on occasion, heartbreaking decision-making,
but having to say no to those deserving of sympathy by no
means betokens a failure to comply with the PSED.”
www.emlawshare.co.uk
Review of PSED
• Review announced in May 2012 to ensure PSED
was operating as intended
• Steering group set up to consider:
– How well the PSED is understood
– Costs and benefits of the PSED
– Management of the legal risk of ensuring
compliance
– Potential changes to ensure better equality
outcomes
www.emlawshare.co.uk
Review of PSED
• Steering committee reported in September 2013
that it was unable to agree on the effectiveness of
the PSED and considered it was too early to
make a judgment on the impacts, costs and
benefits of the PSED.
• Subsequent reports published by the EHRC and
House of Lords Select Committee on the status of
equality and impact of the PSED on disabled
persons
www.emlawshare.co.uk
European Convention on
Human Rights • Articles
– Right to life (art. 2)
– Prohibition of the use of torture (art. 3)
– Prohibition of slavery and forced labour (art. 4)
– Right to liberty and security (art. 5)
– Right to a fair trial (art. 6)
– Prohibition on retroactive legislation (art. 7)
– Right to respect for private and family life (art.
8)
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European Convention on
Human Rights • Articles (cont.)
– Freedom of thought, conscience and religion
(art. 9)
– Freedom of expression (art. 10)
– Freedom of assembly and association (art. 11)
– Right to marry (art. 12)
– Right to an effective remedy (art. 13)
– Prohibition of discrimination (art. 14)
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European Convention on
Human Rights • Protocols
– Protection of property (art. 1, protocol 1)
– Right to education (art. 2, protocol 1)
– Right to free elections (art. 3, protocol 1)
– Prohibition of the death penalty (art. 1, protocol
13)
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Human Rights Act 1998
• Incorporates the Convention rights into domestic
law
• Requires public authorities to act in a way which
is compatible with the Convention rights
– Section 6(1), HRA 1998
• An ‘action’ of a public authority, includes a failure
to act
– Section 6(6), HRA 1988
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Public authority under the HRA
• Core public authorities are those which provide public functions and
includes:
– Government departments
– Courts and tribunals
– Local authorities
– Police, prison and immigration officers
– Schools
– Ombudsmen
– Public prosecutors
– NHS trusts and hospitals
– Organisations like the ICO and the General Medical Council.
www.emlawshare.co.uk
Public authority under the HRA
• Hybrid authorities are private organisations or charities which
carry out public functions. This would include:
– Privatised utilities like water companies, British Gas and
Network Rail
– Companies subcontracted to carry out a public function like a
security company running a private prison
– Housing associations when carrying out some of its functions
as a social landlord
– Private care homes providing care on behalf of the local
authority
– Private hospitals providing care on behalf of the NHS
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Public function under the HRA
• No definition in the Human Rights Act.
• The courts will look at a number of things to decide if a private
organisation is a public authority including if it is:
– publicly funded
– supervised by a state regulatory body
– exercising powers given to it by the law
– taking the place of central or local government
– providing a public service
– acting in the public interest
– carrying out coercive powers devolved from the state
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When must a public authority
follow the HRA • Core public authorities:
- eg Local Authorities, NHS Trusts, the Police
- Must comply with Convention regardless of the nature of the
function
• Hybrid public authorities:
- e.g. private entities carrying out functions of a public nature
- Only required to comply with the Convention when performing
acts of a public nature
YL v Birmingham City Council [2007]
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Human Rights Act 1998
• Exceptions (section 6(2), HRA 1998):
– Authority obliged to act in such a way as a
result of primary legislation
– The act is to apply or to enforce primary
legislation which is itself incompatible with the
Convention
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Who can bring a claim
• Claimant/applicant must be generally a victim
– Section 7(3) HRA 1998
– Follows the interpretation of the ECHR
– Normally need to show that the Claimant has
been directly affected by the decision under
challenge or at risk of being affected
• However, the EHRC can bring a claim despite not
itself being a victim
– Section 30, Equality Act 2006
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Time Limits
• Within one year of the act complained of
• three months if applicant making an application
for judicial review
• The courts can allow an application outside the
one year time limit if there are good reasons and
it is fair to do so
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Human Rights and judicial
review • Sections 7(1) and 7(2) of the HRA require that proceedings are
brought in the appropriate court
• If the only remedy sought is damages then the claim should be
pursued as an ordinary civil matter (CPR 54.3).
• If the individual is seeking a prerogative order and damages
then the JR procedure must be used (CPR 54.2)
• Judicial review is only available where no other route to
challenge exists
• Applicant will still need to show they have sufficient interest, i.e.
that they are the victim of the human rights breach.
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Remedies for breach of HRA
and judicial review • Section 8, Human Rights Act 1998
– Most common remedies are financial compensation or
damages
– quashing order, mandatory order or prohibiting order
– Damages may only be awarded by a court that has power to
award damages in civil proceedings
– The court may award damages for a breach of the
HRA/Convention rights where damages are the most
appropriate remedy and such an award is necessary to afford
just satisfaction to the Claimant [section 8(3)]
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Pertinent cases
• P and Q v Surrey County Council [2014]
- The Claimants had learning difficulties and lacked
capacity to make decisions about their care
- Sisters placed with a foster carer and in residential
home respectively after being taken into care.
- The lower courts stressed that the living arrangements
provided relative normality
- However, “a gilded cage is still a cage”
- Per Lady Hale [46]
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Pertinent cases
• P and Q v Surrey County Council [2014]
- SCC was in breach of the Article 5 right to liberty as
the Claimants were not free to leave
- The Supreme Court clarified that disabled people
cannot be deprived of their liberty without proper
safeguards, even if their living arrangements are
benevolent
- Authorities are now required to regularly check on
whether living arrangements were in the vulnerable
parties’ best interests and meet their needs
www.emlawshare.co.uk
Pertinent cases
• Ladele v London Borough of Islington [2013]
- Claimant worked as a register of births, deaths
and marriages for LBI
- L was opposed to same-sex civil partnerships for
religious reasons and refused to conduct civil
partnership ceremonies
- Following disciplinary proceedings, L claimed
against alleged discrimination on the grounds of
her belief (arts. 9 and 14)
www.emlawshare.co.uk
Pertinent cases
• Ladele v London Borough of Islington [2013]
- Claim was appealed up to the ECtHR in
Strasbourg
- The ECtHR accepted that there was a detrimental
impact on L and art.14 was engaged
- However, the ECtHR determined that LBI’s
actions were in furtherance of a legitimate
objective and LBI’s actions were within the margin
of appreciation when balancing competing rights
Part 4: Case Law and Rule
Change Update
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Reform of Judicial Review
• Criminal Justice and Courts Act 2015 Part 4
• MoJ consultation on Proposals for the provision and use of
financial information – July 2015
• Government response published July 2016, together with
Request for further views on the provision of financial information
to other parties
• Changes to rules setting out the financial information required at
outset of a JR application
• Threshold figure of £1,500 for the disclosure of third party funding
• Detailed financial disclosure when applying for costs capping
order
www.emlawshare.co.uk
Consultation on Duty of
Candour • Lord Chief Justice Discussion Paper on
defendant’s duty of candour and disclosure in JR
proceedings
• Proposals to amend CPR 54A:
• Clarify general position governing defendant’s
duty of candour and to ensure it more closely
reflects the existing case law
• Establish procedure for specific directions on the
content of acknowledgement of service filed by a
defendant
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Case law on procedure
• Hunt v North Somerset Council - costs
• R (Kigen) v Secretary of State for the Home Department –
extension of time
• R (Save Britain's Heritage) v Liverpool City Council – cross-
examination of witness
• R (Wasif ) v Secretary of State for the Home Department –
“without merit” certification
• Khaled v SoS for the Home Department (No.1) – admission of
expert evidence
• R (Khan) v Secretary of State for the Home Department – duty of
candour
• Camden London Borough Council v Humphreys – failure to
participate in proceedings
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Hunt v North Somerset Council
(Sup Ct) • Dismissal of H’s application for JR of the Council's
decision to reduce its youth services budget
• CA ordered H to pay half of the Council's costs of
appeal
• Sup Ct allowed appeal: Where public body had acted
unlawfully but not appropriate to make a mandatory,
prohibitory or quashing order, it would usually be
appropriate to make some form of declaratory order;
simply to dismiss the claim when there had been a
finding of illegality was likely to convey a misleading
impression and to leave the claimant with an
understandable sense of injustice
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R (Kigen) v SoS for the Home
Department (CA)
• CA confirmed that application for permission to
apply for JR must be made promptly
• However, granted extension of time
• Refusal of extension of time would impose a
greater prejudice on the appellants than was
justified by the delay
www.emlawshare.co.uk
R (Save Britain's Heritage) v
Liverpool City Council (Admin Ct)
• Application to cross-examine Council’s urban
design and heritage manager on impact of
proposed development
• Court allowed the cross examination application,
reserving judgment on whether evidence would
be admissible
• "one of the rare cases where it is in the interests
of justice to allow cross examination"
www.emlawshare.co.uk
R (Wasif) v SoS for Home
Department (CA) • Sets out approach that judges should take when
considering whether to certify an application for
permission to apply for judicial review as totally
without merit
• Guidance on difference between cases where
permission is refused on basis that it is "not
arguable" and those that are totally without merit
because bound to fail
www.emlawshare.co.uk
Khaled v SoS for the Home
Department (No.1) (Admin Ct) • Considered admissibility of expert evidence in JR
proceedings
• Claimant wanted to adduce evidence from NGO
• Court confirmed that CPR 35 applies to claims for
JR
• Need for formal application and disclosure to
opposite side
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R (Khan) v Secretary of State
for the Home Department (CA) • Immigration case
• Court considered what Claimant is required to do
as part of the duty
• Duty is bilateral and continuing
• Claimant cannot simply disclose conflicting
documents - any discrepancy should be brought
to the attention of the court and an explanation
given
www.emlawshare.co.uk
Camden LBC v Humphreys
(CA) • JR challenging Parking Adjudicator's decision re penalty charge
notice
• Case considered whether a party which had chosen not to
participate in litigation and had not put its case before the first
instance court should be able appeal against the decision
• Despite receiving claim form almost a year before the grant of
permission, the Council took no steps to participate in the
proceedings and offered no explanation for this
• Court ruled that the Council should not be permitted to contest
the JR application for the first time in the Court of Appeal.
• “In the absence of any explanation, the Council’s passive attitude
to the challenge to the Adjudicator's decision and its total non-
participation in the proceedings below seemed quite
extraordinary”
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• Q&A
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Check out the website …
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