Judicial Review Handbook 9781509922833, 9781509922864, 9781509922840

Table of contents :
Foreword by Lord Woolf
Preface
Table of Contents
JUDICIAL REVIEW HANDBOOK: A DETAILED GUIDE TO THE LAW AND PRACTICE
A. THE NATURE OF JUDICIAL REVIEW: KEYS TO UNDERSTANDING WHAT THE COURT IS DOING
P1 A constitutional guarantee
1.1 Constitutional supervision of public authorities
1.2 Judicial review and the rule of law.
1.3 Judicial review’s constitutional inalienability.
P2 Supervisory jurisdiction
2.1 Judicial review in the Administrative Court
2.2 Upper Tribunal judicial review (UTJR).
2.3 Cart claims
2.4 Planning Court claims
2.5 Other similar supervisory jurisdictions
2.6 Impact of judicial review
P3 Procedural rigour & flexibility
3.1 Procedural rigour
3.2 Procedural flexibility
P4 Materiality
4.1 Highly likely: not substantially different (HL:NSD).
4.2 Materiality/absence of prejudice at common law
4.3 Futility
4.4 Cautious approach to materiality, prejudice and futility
4.5 Utility: hypothetical/academic issues
4.6 Prematurity
P5 Targets
5.1 Judicial review and ‘decisions’.
5.2 Spectrum of possible targets
5.3 Multiple targets/target-selection
5.4 ‘Rolling judicial review’
P6 Sources
6.1 Basic sources of powers and duties
6.2 Policy guidance
6.3 International law
P7 Constitutional fundamentals
7.1 The force of the common law
7.2 The rule of law
7.3 Separation of powers
7.4 Legislative supremacy
7.5 Access to justice
7.6 Constitutional/common law rights
7.7 Basic fairness/natural justice
7.8 Basic reasonableness
P8 EU law
8.1 Basic features of EU law
P9 The HRA
9.1 HRA: key features and themes
9.2 HRA s.2: relationship with Strasbourg
9.3 HRA s.3: compatible interpretation
9.4 HRA s.6: compatible public authority action
9.5 HRA just satisfaction
P10 Candour & cooperation
10.1 Judicial review as a cooperative enterprise
10.2 ADR/mediation and judicial review
10.3 Claimant’s duty of candour
10.4 Defendant/interested party’s duty of candour
P11 Precedent & authority
11.1 Use of precedent and authority
P12 Reviewing primary legislation
12.1 Primary legislation: invalidity/disapplication under EU law
12.2 HRA s.4: declaration of incompatibility (DOI)
12.3 Judicial review of primary legislation at common law
P13 Judicial restraint
13.1 ‘Soft’ review: reasonableness standard
13.2 Restraint and factual appreciation
13.3 Restraint and discretion/judgment
13.4 Restraint and expertise
13.5 Judicial restraint in action
13.6 Review from the decision-maker’s point of view
P14 Critical balance
14.1 Judicial review: striking a balance
14.2 Striking a balance: nothing personal
14.3 Inconvenience and floodgates
P15 The forbidden method
15.1 ‘Soft’ review: the forbidden substitutionary approach
15.2 ‘Not an appeal’
15.3 ‘Legality not correctness’
15.4 ‘Not the merits’
15.5 ‘Court does not substitute its own judgment
P16 Hard-edged questions
16.1 Hard-edged review: correctness standard
16.2 Precedent fact/objective fact as hard-edged review.
16.3 Error of law as hard-edged review
16.4 Interpretation as hard-edged review
16.5 Procedural fairness as hard-edged review
16.6 Hard-edged review: further aspects
P17 Evidence & fact
17.1 Judicial review evidence
17.2 Fresh evidence in judicial review
17.3 Judicial review and factual disputes
17.4 Oral evidence/cross-examination in judicial review
17.5 Disclosure/further information in judicial review
17.6 Expert evidence in judicial review
P18 Costs
18.1 Costs: general matters
18.2 Costs and third parties
18.3 Costs and the permission stage
18.4 Public interest costs, costs capping and the environment
18.5 Costs and discontinuance/settlement
P19 The claim stage
19.1 Pre-claim steps
19.2 Making the claim
19.3 Acknowledging the claim
P20 Interim relief
20.1 Interim remedies in judicial review
20.2 Court’s approach to interim relief
P21 The permission stage
21.1 The permission process
21.2 Granting or refusing permission
21.3 Totally without merit (TWM) certification
21.4 Directing a rolled-up hearing
21.5 Permission-stage case-management/directions
P22 The substantive stage
22.1 Matters/steps arising post-permission.
22.2 Third party participation
22.3 Substantive disposal without a hearing
22.4 The substantive hearing
P23 Appeal
23.1 Permission-stage appeal
23.2 Substantive appeal
23.3 Nature of the appellate court’s approach
P24 Remedies
24.1 The remedial toolkit
24.2 The declaration
24.3 Remedy as a discretionary matter
24.4 The remedies in action
P25 Monetary remedies
25.1 Availability of damages, restitution or sum due (debt)
25.2 Recognised species of monetary claim
25.3 Public law reparation: ‘no damages for maladministration’
B. PARAMETERS OF JUDICIAL REVIEW: FURTHER DOMINANT THEMES SHAPING THE LAW AND PRECTICE
P26 Delay
26.1 The approach to delay
26.2 Promptness and the running of time
26.3 Extension of time
26.4 Hardship, prejudice and detriment
P27 Public/private law
27.1 The public law/private law distinction
27.2 ‘Public law’ principles outside judicial review
27.3 ‘Procedural exclusivity’: abuse of process
P28 Ouster
28.1 Statutory ouster of judicial review
28.2 Time-limit ousters
P29 Interpretation
29.1 The purposive approach to interpretation
29.2 Legislative purpose and judicial review
29.3 Statutory interpretation
29.4 Using Hansard in judicial review
29.5 Interpreting other instruments
P30 Function
30.1 The public authority’s function
P31 Context
31.1 ‘Context is everything’.
31.2 Circumstances
31.3 Conduct and characteristics of the claimant
31.4 ‘Flexi-principles’.
P32 Modified review
32.1 Modified review
32.2 Part-reviewability of Crown Courts
32.3 Judicial review of decisions regarding legal process
32.4 Anxious scrutiny.
32.5 Systemic challenges
P33 Flux
33.1 The developing law
33.2 Landmarks from the past
33.3 ‘Two-step’ approaches to legal development
33.4 Next steps in public law: forecasting the future
P34 Reviewability/non-reviewability
34.1 Surveying the field
34.2 Principles of reviewability
34.3 Key conquests of reviewability
34.4 ‘Non-reviewable’ public functions
34.5 Private law matters
P35 Principle of legality
35.1 POL: non-abrogation of protected values (the principle)
35.2 POL: protected values (the premise)
35.3 POL: international law (human rights) obligations
35.4 POL: Statutorily endorsed abrogation (the proviso)
P36 Alternative remedy
36.1 Judicial review alongside other safeguards
36.2 Exclusive alternative remedy
36.3 Alternative remedy as a discretionary bar
36.4 Whether action/avenue curative of public law wrong
P37 Proportionality method
37.1 Proportionality method
P38 Standing
38.1 The standing requirement: sufficient interest
38.2 The approach to sufficient interest
38.3 Standing at the permission/substantive stages.
38.4 Standing and HRA s.6: the ‘victim’ test
P39 Discretion/duty
39.1 No unfettered powers
39.2 Discretion (power): the essential duties.
39.3 Discretion and duty in action.
P40 Inalienability
40.1 Preservation of powers and duties
40.2 Inalienability and legitimate expectation
P41 Legitimate expectation
41.1 The role of legitimate expectation
41.2 Anatomy of a legitimate expectation
P42 Onus
42.1 Onus generally on the claimant
42.2 Onus on the defendant
P43 Severance
43.1 Severability
P44 Nullity
44.1 Invalidity labels
44.2 Flaws constituting ‘nullity’
44.3 Purpose/effect of ‘nullity’
C. GROUNDS FOR JUDICIAL REVIEW: PUBLIC LAW WRONGS JUSTIFYING THE COURT'S INTERVENTION
P45 Classifying grounds
45.1 The conventional threefold division
45.2 Root concepts and unifying themes
45.3 Reviewing discretionary power: Wednesbury
45.4 Overlapping grounds and interchangeable labels
P46 Ultra vires
46.1 Ultra vires
46.2 Interpretation to allow validity: reading down/in
P47 Jurisdictional error
47.1 Jurisdictional error
P48 Error of law
48.1 Error of law/misdirection in law/illegality
48.2 Error of law: restricted categories?
P49 Error of fact
49.1 Precedent fact
49.2 Objective question of fact
49.3 Material error of fact
49.4 Unsustainable conclusion of fact
P50 Abdication/fetter
50.1 Basic duty not to abdicate/fetter
50.2 Acting under dictation
50.3 Improper delegation
50.4 Fetter by inflexible policy
P51 Insufficient inquiry
51.1 Duty of sufficient inquiry
51.2 Whether material fairly presented/properly addressed.125
P52 Bad faith/improper motive
52.1 Bad faith
52.2 Improper motive
P53 Frustrating the legislative purpose
53.1 Duty to promote the legislative purpose
P54 Substantive unfairness
54.1 Substantive unfairness.
54.2 Unjustified breach of a substantive legitimate expectation (SLE)
P55 Consistency/equal treatment
55.1 Consistency, equal treatment, certainty and arbitrariness
55.2 Statutory equality duties
55.3 Unjustified ‘departure’
P56 Relevancy/irrelevancy
56.1 The relevancy/irrelevancy principle
56.2 Obligatory and evaluative relevance/irrelevance
56.3 Relevance and weight
P57 Unreasonableness
57.1 The unreasonableness principle
57.2 Unreasonableness as a high threshold
57.3 Distinct species of unreasonableness.
57.4 Unreasonableness in action
P58 Proportionality
58.1 Proportionality
58.2 Proportionality alongside reasonableness
58.3 Proportionality at common law
58.4 Proportionality and scrutiny of evidence/reasoning
58.5 Proportionality: latitude and intensity of review
P59 HRA violation
59.1 Identifying an HRA violation
59.2 Article 2: life
59.3 Article 3: cruelty
59.4 Article 5: liberty
59.5 Article 6: fair hearing
59.6 Article 8: private and family life
59.7 Article 10: expression
59.8 Article 14: non-discrimination
59.9 A1P1: property-interference
59.10 Other HRA/ECHR rights and p
P60 Constitutionality
60.1 Constitutionality.
P61 Procedural unfairness
61.1 Procedural fairness
61.2 Procedural fairness as a flexi-principle
61.3 Procedural fairness: supplementing the legislative scheme
61.4 Procedural ultra vires
61.5 Basic right to be heard
61.6 Basic right to be informed
61.7 Other rights of procedural fairness
P62 Consultation
62.1 Consultation
62.2 Triggers for a consultation duty
62.3 Legally adequate consultation: the Sedley requirements
P63 Bias
63.1 Automatic disqualification
63.2 Actual bias
63.3 Apparent bias
P64 Reasons
64.1 Importance of reasons.
64.2 Judicial review for failure to give reasons
64.3 Adequacy of reasons
64.4 Timing of reasons: retro-reasons
64.5 Remedy for lack/insufficiency of reasons.
P65 External vitiation
65.1 External injustice/vitiating third-party act
Also written by Mike Fordham
Table of Cases
Table of Legislation
Table of Statutory Instruments
Index

Citation preview

JUDICIAL REVIEW HANDBOOK SEVENTH EDITION

ii

JUDICIAL REVIEW HANDBOOK SEVENTH EDITION by

The Hon Sir Michael Fordham High Court Judge, England and Wales BA (Oxon) BCL (Oxon) LLM (Virginia) College Lecturer, Hertford College, Oxford (1990–2019) Editor/Consultant Editor, Judicial Review (1996–present) Human Rights Lawyer of the Year (2005) Public Law Junior of the Year (2005) Bar Pro Bono Award (2006) Human Rights and Public Law Silk of the Year (2008) Bencher, Gray’s Inn (2010) Recorder (Civil) (2010–2019) Visiting Fellow, Bingham Centre for the Rule of Law (2011–2019) Deputy Judge of the Upper Tribunal (Administrative Appeals Chamber) (2012–2017) Recorder (Criminal) (2012–2019) Deputy High Court Judge (2013–2019) Master of Education, Gray’s Inn (2018–present)

Foreword by The Rt Hon The Lord Woolf, Former Lord Chief Justice

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc Copyright © Michael Fordham, 1994, 1997, 2001, 2004, 2008, 2012, 2020 First published 1994 Second edition 1997 Third edition 2001 Fourth edition 2004 Fifth edition 2008 Sixth edition 2012 Michael Fordham has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data ISBN: HB: 978-1-50992-283-3 ePDF: 978-1-50992-284-0 ePub: 978-1-50992-285-7 Typeset by Compuscript Ltd, Shannon Production Manager: Tom Adams Proof-reading: Jenny Kallin Indexing and tabling: Kate McIntosh and Roger Bennett

To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

for Anna, Bradley and Lois

vi

FOREWORD by Lord Woolf, former Lord Chief Justice Previous editions of this Handbook have established such high standards that no endorsement is required from me. However, I would like to make two points. The first is how delighted I am at Mike Fordham’s recent appointment as a High Court judge. His career has demonstrated how appropriate his appointment is. The second point relates to the fact that the government has recently made it clear that they are seriously considering reforming judicial review. For that reason, they have established what is described as an ‘Independent Review of Administrative Law’ and a Panel chaired by Lord Faulks QC. He has now issued a call for evidence. In doing so, he asks: “Does judicial review strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing executive and local authorities to carry on the business of government?” I intend to respond to the call, but my main response is to suggest that the Panel should, in the first instance, acquire a copy of this Handbook and study its contents carefully because it is my belief that in the light of its contents, they should proceed with great caution. A study of its contents demonstrates the result of growth in the range and extent of the of judicial review over the seven successive editions of the Handbook. However, the reason for this growth is not primarily the consequence of inappropriate activity of the judiciary, but the response to the public seeking redress in respect of an increase in actions of public bodies behaving in a manner which does not accord with the rule of law. Lord Woolf House of Lords October 2020 From Lord Woolf’s Previous Forewords: January 1994 (First Edition): This ‘Handbook’ adopts an entirely novel approach to make available the vast volume of material which now constitutes the corpus of administrative law. It is an approach which I have found, having used a pre-publication version of the book, works extremely well in practice. Over the years administrative law, which is the law applied on applications for judicial review, has grown like Topsy. The application of the law involves, so far as this is possible, identifying from a mass of case law the underlying principles. This is just what the Handbook helps to achieve. It works by identifying the principles and then setting out the authorities which support those principles. The principles may have to be reconsidered as the case law develops but in their present form they provide an admirable base from which to start and the copious references by which they are supported provide an extremely important resource. The Handbook is therefore a valuable addition to the literature which is available on judicial review. As its virtues become known I feel confident it will prove popular with everyone who is concerned with judicial review and in particular those who practise in the public law field, among whom I include the judiciary. Its title includes the word ‘Handbook’. While I understand the use of this word as part of the title and appreciate that practitioners will certainly find the book ‘handy’, I very much hope that the use of the word ‘Handbook’ will not give the impression that it deals with the subject superficially. This is very far from

FOREWORD

the case. The ‘Handbook’ skilfully absorbs a remarkable amount of learning. I hope that it has the extremely bright future it deserves. March 1997 (Second Edition): I have the highest expectations of the second edition having frequently used the first edition. September 2001 (Third Edition): I expressed the hope in 1994, that the Handbook would have the bright future it deserved. I am delighted that my hopes have been fulfilled. If we needed the first edition our needs are greater now for a third edition. In the intervening seven years the pace of the development of judicial review has continued to accelerate and the Human Rights Act has now acted as a catalyst. During those seven years the Handbook has regularly come to my aid. I, like many other lawyers and jurists, have become addicted to it. It is our first port of call when we have an administrative law problem. So I am delighted that there is to be an up to the minute third edition. I am also delighted to be able to predict that it will be at least as successful and as valuable to those involved in public law as the two previous editions. September 2004 (Fourth Edition): I am delighted to have this opportunity of welcoming the 4th edition of this most valuable Handbook. One of the great strengths of judicial review is that it has been entirely created through the decisions of the courts over the years. As it has evolved so have the principles around which it is structured. The foundations are sound and courts continue to build upon them. However, as a result the number of authoritative cases continues to grow. Not even the most able and experienced practitioners or judges can possibly keep abreast with the continuously increasing number of authorities. For both, the Handbook is a most valuable resource. Certainly, in my work I find the Handbook extremely valuable and I am delighted that there is once again an up-to-date edition so I can again, having consulted it, know that there is no important decision which I have overlooked. The Human Rights Act made the author’s task even more difficult but he can be relied upon not to let standards slip. I am confident that this new edition will cause public lawyers, irrespective of the sphere in which they work, to share my enthusiasm for the Handbook. October 2008 (Fifth Edition): I am delighted to welcome the 5th edition of this volume, which has become an institution for those who practise public law. Ever since the first edition, I have been a great admirer of the Handbook and its author. When I wrote the foreword for the first edition, I was very optimistic about its prospects and it gives me pleasure in regard to the Handbook to have had my judgements proved correct. This edition has of necessity been the subject of significant and strategic pruning. The Handbook was in danger of being smothered by its own success. Such has been the growth of its contents, matching the growth of judicial review that there was a danger of its no longer being so convenient to use. However, unsurprisingly, Michael Fordham has recognised this danger and ensured that his pruning has eradicated it. As with the previous editions, the subject is still treated in sufficient depth; it retains the best of the past while including the most recent cases, with which practitioners, judges and academics have to keep abreast. In the first edition, Michael Fordham made clear that as a practitioner of judicial review, he was a novice. That is far from the position today. He is now one of the most distinguished leaders in this field at the Bar, as has been acknowledged by his being declared Chambers UK’s Human Rights and Public Law Silk of the Year 2008; an award which, from my own knowledge, he richly deserves. The selection of the cases included in the latest edition has, therefore, an authority which was absent from the first edition. It has the authority that comes from being compiled by an author of singular distinction. July 2012 (Sixth Edition): The Handbook has become an important part of the judicial review landscape. The sixth edition will ensure its continued pre-eminence. For this to happen it has viii

FOREWORD

to be up to date, both in the views it expresses and the cases that it cites. This is what the new edition will ensure. Michael Fordham QC still writes the book singlehandedly and the users of the new edition can have the same confidence in its contents as they had in the earlier editions. I have no doubt practitioners engaged in public law litigation will find that the Handbook continues to be an essential aid. It is with confidence that I wish this edition the same success as its predecessors. Once more, it has been completely updated. In addition, it contains new sections, for example that relating to the Principle of Legality. Readers will also be helped by the introduction of separate sections on Judicial Review as an Inalienable Constitutional Protection and Judicial Review of Primary Legislation.

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PREFACE

The structure of this book has not changed over the years. Nor has my approach to writing it. As I see it, judicial review operates by developing and deploying principles which are flexible and in constant use, making the case law a goldmine of exposition and working illustration. I try to read as many of the cases as I can, getting as much as I can out of them. I dig, sift and gather; I organise and label the materials, so as to present illustrations, statements of principle, observations. And here they are, ready for when they help. The whole book has been updated. Regular users will find these as new or newly self-standing sections: P3 (procedural rigour & flexibility); §4.1 (highly likely: not substantially different (HL:NSD)); §5.4 (‘rolling judicial review’); §23.3 (nature of the appellate court’s approach); §32.5 (systemic challenges); P60 (constitutionality); P62 (consultation). My thanks to the clerks – especially the wonderful Derek Sutton – the staff and the barristers at Blackstone Chambers for 25 unforgettable years. My thanks to the clerks, staff and judges at the RCJ for making me feel welcome. Special thanks to Bloomsbury, who waited patiently for this new edition. And to Jacqueline for your love and kindness. This edition is dedicated to my three wonderful children: Anna, Bradley and Lois.

Mike Fordham Royal Courts of Justice, Strand, London Friday 25 September 2020

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TABLE OF CONTENTS Foreword by Lord Woolf Preface

vii xi

JUDICIAL REVIEW HANDBOOK: A DETAILED GUIDE TO THE LAW AND PRACTICE

1

A. THE NATURE OF JUDICIAL REVIEW: keys to understanding what the Court is doing

3

P1 A constitutional guarantee

5

1.1 Constitutional supervision of public authorities 1.2 Judicial review and the rule of law 1.3 Judicial review’s constitutional inalienability

5 8 13

P2 Supervisory jurisdiction

17

P3 Procedural rigour & flexibility

41

P4 Materiality

54

P5 Targets

77

P6 Sources

88

2.1 2.2 2.3 2.4 2.5 2.6

Judicial review in the Administrative Court 17 Upper Tribunal judicial review (UTJR) 26 Cart claims30 Planning Court claims 32 Other similar supervisory jurisdictions 33 Impact of judicial review 34

3.1 Procedural rigour 3.2 Procedural flexibility

4.1 Highly likely: not substantially different (HL:NSD) 4.2 Materiality/absence of prejudice at common law 4.3 Futility 4.4 Cautious approach to materiality, prejudice and futility 4.5 Utility: hypothetical/academic issues 4.6 Prematurity 5.1 5.2 5.3 5.4

Judicial review and ‘decisions’ Spectrum of possible targets Multiple targets/target-selection ‘Rolling judicial review’

6.1 Basic sources of powers and duties 6.2 Policy guidance 6.3 International law

41 47 54 59 63 65 68 73

77 78 82 84 88 91 96

TABLE OF CONTENTS

P7 Constitutional fundamentals

104

P8 EU law

126

P9 The HRA

130

P10 Candour & cooperation

149

P11 Precedent & authority

165

P12 Reviewing primary legislation

173

P13 Judicial restraint

181

P14 Critical balance

196

7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8

The force of the common law The rule of law Separation of powers Legislative supremacy Access to justice Constitutional/common law rights Basic fairness/natural justice Basic reasonableness

104 108 110 111 115 117 122 124

8.1 Basic features of EU law 9.1 9.2 9.3 9.4 9.5

10.1 10.2 10.3 10.4

126

HRA: key features and themes HRA s.2: relationship with Strasbourg HRA s.3: compatible interpretation HRA s.6: compatible public authority action HRA just satisfaction Judicial review as a cooperative enterprise ADR/mediation and judicial review Claimant’s duty of candour Defendant/interested party’s duty of candour

11.1 Use of precedent and authority

149 155 156 158 165

12.1 Primary legislation: invalidity/disapplication under EU law 12.2 HRA s.4: declaration of incompatibility (DOI) 12.3 Judicial review of primary legislation at common law 13.1 13.2 13.3 13.4 13.5 13.6

130 135 139 142 146

‘Soft’ review: reasonableness standard Restraint and factual appreciation Restraint and discretion/judgment Restraint and expertise Judicial restraint in action Review from the decision-maker’s point of view

14.1 Judicial review: striking a balance 14.2 Striking a balance: nothing personal 14.3 Inconvenience and floodgates

173 174 177 181 184 185 187 189 194 196 200 201

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TABLE OF CONTENTS

P15 The forbidden method

203

P16 Hard-edged questions

209

P17 Evidence & fact

220

P18 Costs

247

P19 The claim stage

271

P20 Interim relief

285

P21 The permission stage

297

15.1 15.2 15.3 15.4 15.5 16.1 16.2 16.3 16.4 16.5 16.6 17.1 17.2 17.3 17.4 17.5 17.6 18.1 18.2 18.3 18.4 18.5

‘Soft’ review: the forbidden substitutionary approach ‘Not an appeal’ ‘Legality not correctness’ ‘Not the merits’ ‘Court does not substitute its own judgment’ Hard-edged review: correctness standard Precedent fact/objective fact as hard-edged review Error of law as hard-edged review Interpretation as hard-edged review Procedural fairness as hard-edged review Hard-edged review: further aspects Judicial review evidence Fresh evidence in judicial review Judicial review and factual disputes Oral evidence/cross-examination in judicial review Disclosure/further information in judicial review Expert evidence in judicial review Costs: general matters Costs and third parties Costs and the permission stage Public interest costs, costs capping and the environment Costs and discontinuance/settlement

19.1 Pre-claim steps 19.2 Making the claim 19.3 Acknowledging the claim

209 210 211 213 216 218 220 223 228 237 240 244 247 255 260 263 267 271 275 280

20.1 Interim remedies in judicial review 20.2 Court’s approach to interim relief 21.1 21.2 21.3 21.4 21.5

203 205 206 207 208

285 292

The permission process Granting or refusing permission Totally without merit (TWM) certification Directing a rolled-up hearing Permission-stage case-management/directions

xv

297 301 306 307 310

TABLE OF CONTENTS

P22 The substantive stage

317

P23 Appeal

342

P24 Remedies

357

P25 Monetary remedies

376

B. PARAMETERS OF JUDICIAL REVIEW: further dominant themes shaping the law and practice

385

P26 Delay

387

P27 Public/private law

409

P28 Ouster

418

P29 Interpretation

423

22.1 22.2 22.3 22.4

Matters/steps arising post-permission Third party participation Substantive disposal without a hearing The substantive hearing

317 326 333 335

23.1 Permission-stage appeal 23.2 Substantive appeal 23.3 Nature of the appellate court’s approach 24.1 24.2 24.3 24.4

342 346 349

The remedial toolkit The declaration Remedy as a discretionary matter The remedies in action

357 358 363 368

25.1 Availability of damages, restitution or sum due (debt) 25.2 Recognised species of monetary claim 25.3 Public law reparation: ‘no damages for maladministration’

26.1 26.2 26.3 26.4

The approach to delay Promptness and the running of time Extension of time Hardship, prejudice and detriment

387 393 398 406

27.1 The public law/private law distinction 27.2 ‘Public law’ principles outside judicial review 27.3 ‘Procedural exclusivity’: abuse of process 28.1 Statutory ouster of judicial review 28.2 Time-limit ousters 29.1 29.2 29.3 29.4 29.5

376 379 382

409 410 412 418 421

The purposive approach to interpretation Legislative purpose and judicial review Statutory interpretation Using Hansard in judicial review Interpreting other instruments

423 426 427 433 436

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TABLE OF CONTENTS

P30 Function

440

P31 Context

444

P32 Modified review

456

P33 Flux

477

P34 Reviewability/non-reviewability

486

P35 Principle of legality

507

P36 Alternative remedy

518

P37 Proportionality method

538

P38 Standing

544

30.1 The public authority’s function

440

31.1 ‘Context is everything’ 31.2 Circumstances 31.3 Conduct and characteristics of the claimant 31.4 ‘Flexi-principles’ 32.1 32.2 32.3 32.4 32.5 33.1 33.2 33.3 33.4 34.1 34.2 34.3 34.4 34.5 35.1 35.2 35.3 35.4 36.1 36.2 36.3 36.4

Modified review Part-reviewability of Crown Courts Judicial review of decisions regarding legal process Anxious scrutiny Systemic challenges The developing law Landmarks from the past ‘Two-step’ approaches to legal development Next steps in public law: forecasting the future Surveying the field Principles of reviewability Key conquests of reviewability ‘Non-reviewable’ public functions Private law matters

444 446 449 453 456 459 462 469 473 477 479 483 484 486 489 493 495 501

POL: non-abrogation of protected values (the principle) POL: protected values (the premise) POL: international law (human rights) obligations POL: Statutorily endorsed abrogation (the proviso) Judicial review alongside other safeguards Exclusive alternative remedy Alternative remedy as a discretionary bar Whether action/avenue curative of public law wrong

37.1 Proportionality method

507 510 514 515 518 520 521 533 538

38.1 The standing requirement: sufficient interest 38.2 The approach to sufficient interest

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544 546

TABLE OF CONTENTS

38.3 Standing at the permission/substantive stages 38.4 Standing and HRA s.6: the ‘victim’ test

553 555

P39 Discretion/duty

558

P40 Inalienability

569

P41 Legitimate expectation

574

P42 Onus

585

P43 Severance

591

P44 Nullity

594

C. GROUNDS FOR JUDICIAL REVIEW: public law wrongs justifying the Court’s intervention

599

P45 Classifying grounds

601

P46 Ultra vires

611

P47 Jurisdictional error

617

39.1 No unfettered powers 39.2 Discretion (power): the essential duties 39.3 Discretion and duty in action

558 560 563

40.1 Preservation of powers and duties 40.2 Inalienability and legitimate expectation

569 570

41.1 The role of legitimate expectation 41.2 Anatomy of a legitimate expectation

574 578

42.1 Onus generally on the claimant 42.2 Onus on the defendant

585 587

43.1 Severability

591

44.1 Invalidity labels 44.2 Flaws constituting ‘nullity’ 44.3 Purpose/effect of ‘nullity’

45.1 45.2 45.3 45.4

594 595 596

The conventional threefold division 601 Root concepts and unifying themes 603 Reviewing discretionary power: Wednesbury605 Overlapping grounds and interchangeable labels 607

46.1 Ultra vires 46.2 Interpretation to allow validity: reading down/in 47.1 Jurisdictional error

611 615 617

xviii

TABLE OF CONTENTS

P48 Error of law

623

P49 Error of fact

629

P50 Abdication/fetter

639

P51 Insufficient inquiry

649

P52 Bad faith/improper motive

655

P53 Frustrating the legislative purpose

659

P54 Substantive unfairness

663

P55 Consistency/equal treatment

674

P56 Relevancy/irrelevancy

692

P57 Unreasonableness

704

48.1 Error of law/misdirection in law/illegality 48.2 Error of law: restricted categories? 49.1 49.2 49.3 49.4 50.1 50.2 50.3 50.4

Precedent fact Objective question of fact Material error of fact Unsustainable conclusion of fact

629 630 631 635

Basic duty not to abdicate/fetter Acting under dictation Improper delegation Fetter by inflexible policy

639 640 641 644

51.1 Duty of sufficient inquiry 51.2 Whether material fairly presented/properly addressed 52.1 Bad faith 52.2 Improper motive

649 652 655 656

53.1 Duty to promote the legislative purpose

54.1 Substantive unfairness 54.2 Unjustified breach of a substantive legitimate expectation (SLE) 55.1 Consistency, equal treatment, certainty and arbitrariness 55.2 Statutory equality duties 55.3 Unjustified ‘departure’ 56.1 The relevancy/irrelevancy principle 56.2 Obligatory and evaluative relevance/irrelevance 56.3 Relevance and weight 57.1 57.2

623 627

The unreasonableness principle Unreasonableness as a high threshold

xix

659 663 669

674 682 687 692 697 700 704 708

TABLE OF CONTENTS

57.3 57.4

Distinct species of unreasonableness Unreasonableness in action

710 713

P58 Proportionality

717

P59 HRA violation

738

P60 Constitutionality

759

P61 Procedural unfairness

763

P62 Consultation

793

P63 Bias

802

P64 Reasons

807

58.1 Proportionality 58.2 Proportionality alongside reasonableness 58.3 Proportionality at common law 58.4 Proportionality and scrutiny of evidence/reasoning 58.5 Proportionality: latitude and intensity of review 59.1 59.2 59.3 59.4 59.5 59.6 59.7 59.8 59.9 59.10

Identifying an HRA violation Article 2: life Article 3: cruelty Article 5: liberty Article 6: fair hearing Article 8: private and family life Article 10: expression Article 14: non-discrimination A1P1: property-interference Other HRA/ECHR rights and provisions

738 740 741 742 743 747 749 750 754 755

60.1 Constitutionality 61.1 61.2 61.3 61.4 61.5 61.6 61.7

717 718 720 728 731

759

Procedural fairness Procedural fairness as a flexi-principle Procedural fairness: supplementing the legislative scheme Procedural ultra vires Basic right to be heard Basic right to be informed Other rights of procedural fairness

62.1 Consultation 62.2 Triggers for a consultation duty 62.3 Legally adequate consultation: the Sedley requirements 63.1 Automatic disqualification 63.2 Actual bias 63.3 Apparent bias

763 770 773 776 778 781 788 793 795 797 802 803 804

64.1 Importance of reasons 64.2 Judicial review for failure to give reasons

807 811

xx

TABLE OF CONTENTS

64.3 Adequacy of reasons 64.4 Timing of reasons: retro-reasons 64.5 Remedy for lack/insufficiency of reasons

816 823 828

P65 External vitiation

831

Also written by Mike Fordham

835

Table of Cases

837

Table of Legislation

925

Table of Statutory Instruments

929

Index

931

65.1 External injustice/vitiating third-party act

xxi

831

xxii

JUDICIAL REVIEW HANDBOOK

a detailed guide to the law and practice

containing: principles (P1 etc) commentary (1.1 etc) illustrations (1.1.1 etc) internal cross-references: {1.1} means “see paragraph 1.1”

A.

THE NATURE OF JUDICIAL REVIEW keys to understanding what the Court is doing (P1–P25)

B.

PARAMETERS OF JUDICIAL REVIEW further dominant themes shaping the law and practice (P26–P44)

C.

GROUNDS FOR JUDICIAL REVIEW public law wrongs justifying the Court’s intervention (P45–P65)

Acronyms: CPR = Civil Procedure Rules CPS = Crown Prosecution Service HMRC = Her Majesty’s Revenue & Customs Commissioners HRA = Human Rights Act 1998 LBC = London Borough Council SSHD = Secretary of State for the Home Department

2

A. THE NATURE OF JUDICIAL REVIEW keys to understanding what the Court is doing P1 P2 P3 P4 P5 P6 P7 P8 P9 P10 P11 P12 P13 P14 P15 P16 P17 P18 P19 P20 P21 P22 P23 P24 P25

A constitutional guarantee Supervisory jurisdiction Procedural rigour & flexibility Materiality Targets Sources Constitutional fundamentals EU law The HRA Candour & cooperation Precedent & authority Reviewing primary legislation Judicial restraint Critical balance The forbidden method Hard-edged questions Evidence & fact Costs The claim stage Interim relief The permission stage The substantive stage Appeal Remedies Monetary remedies {1.1} means “see paragraph 1.1”

4

P1 A constitutional guarantee. Judicial review of public authorities is a fundamental and inalienable constitutional protection: the rule of law in action. 1.1 Constitutional supervision of public authorities 1.2 Judicial review and the rule of law 1.3 Judicial review’s constitutional inalienability

1.1 Constitutional supervision of public authorities.1 Judicial review is a central control mechanism of administrative law (public law). It was developed by the Courts themselves through the common law, to discharge a constitutional responsibility: the supervision of public authorities. It provides a protection which is essential to the rule of law. It promotes the public interest and guides public authorities, securing that they act lawfully. Acting lawfully means acting within legal parameters and boundaries applicable to public power. It means complying with duties imposed by the law, whether from legislation or the common law. Judicial review ensures that public authorities are accountable to law and not above it. 1.1.1 Judicial review: an essential constitutional protection. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §119, applying R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §122 (Lord Dyson: “there is no principle more basic to our system of law than … the constitutional protection afforded by judicial review”); In re McGuinness [2020] UKSC 6 [2020] 2 WLR 510 at §64 (Lord Sales: “The substantive law of judicial review to control the activities of public authorities and inferior courts when exercising administrative discretions in dealing with the public … is recognised as a major protection for the rights and liberty of citizens”); R (Reprieve) v Prime Minister [2020] EWHC 1695 (Admin) at §38 (Dame Victoria Sharp P and Farbey J, describing the “constitutional importance” of the proposition that “the function of the court in judicial review proceedings is to ensure the scrutiny of executive action in the public interest”); R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §68 (Lord Reed: “At the heart of the concept of the rule of law is the idea that society is governed by law. … Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law”); R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6 [2015] PTSR 322 at §61 (Lord Neuberger: “The courts have no more constitutionally important duty than to hold the executive to account by ensuring that it makes decisions and takes actions in accordance with the law”); R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §56 (Lord Neuberger: “Judicial review protects citizens against inappropriate use of the executive’s powers”); R (Evans) v Attorney General [2015] UKSC 21 [2015] AC 1787 at §§51-52 (Lord Neuberger, describing this as a “constitutional principle”: “it is … fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions … and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen”), §54 (referring to “[t]he constitutional importance of the principle that a decision of the executive should be reviewable by the judiciary”); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §34 (Lady Hale and Lord Reed, describing the Court as “performing its proper function under our constitution”); R v Ministry of Defence, ex p Smith [1996] QB 517, 556D-E (Sir Thomas Bingham MR: “the court [has] the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power” and “must not shrink 1The

equivalent paragraph in a previous edition was relied on in Harrington v Minister for Communications, Energy and Natural Resources [2018] IEHC 821 (High Court of Ireland) at §127 (MacGrath J).

THE NATURE OF JUDICIAL REVIEW

from its fundamental duty to ‘do right to all manner of people’”); Roberts v Gwyrfai District Council [1899] 2 Ch 608, 614 (Lindley MR: “I know of no duty of the Court which it is more important to observe, and no power of the Court which it is more important to enforce, than its power of keeping public bodies within their rights”); De Smith, Judicial Review of Administrative Action (1st edition, 1959) 222 (“In matters of public law the role of the ordinary courts is of high constitutional importance. It is the function of the Judiciary to pass upon the validity of acts and decisions of the Executive and administrative tribunals, and to afford protection to the rights of the citizen”). 1.1.2 Judicial review: a triumph for the common law. Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521, 526A (Lord Templeman: “Judicial review was a judicial invention to secure that decisions are made by the executive or by a public body according to law”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 641C-D (Lord Diplock, referring to “progress towards a comprehensive system of administrative law” as “having been the greatest achievement of the English courts in my judicial lifetime”); Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70, 173H (Lord Goff, referring as a legal landmark to the development of “our modern law of judicial review … from its old, ineffectual, origins”); Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, 378E (Lord Goff, referring as “perhaps the most remarkable” of “radical” judicial developments, “the decisions of this House in the middle of this century which led to the creation of our modern system of administrative law”); Mahon v Air New Zealand Ltd [1984] AC 808, 816G (Lord Diplock: “The extension of judicial control of the administrative process has provided over the last 30 years the most striking feature of the development of the common law in those countries of whose legal systems it provides the source”); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 567G (Lord Mustill: “To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground”); Lord Woolf, Access to Justice (1996) 250 (“the growth of public law and, in particular, judicial review has been one of the most significant developments in the English legal system in the last 25 years”). 1.1.3 Judicial review: controlling administrative action. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 408E (Lord Diplock: “Judicial review … provides the means by which judicial control of administrative action is exercised”); R (Beeson) v Dorset County Council [2002] EWCA Civ 1812 [2003] UKHRR 353 at §17 (Laws LJ: “The basis of judicial review rests in the free-standing principle that every action of a public body must be justified by law, and at common law the High Court is the arbiter of all claimed justifications”); HM Government (Consultation Paper: Access to Justice With Conditional Fees) (March 1998) (“the ability to challenge the acts or omissions of public authorities is a necessary check on the use of the power of the State, and a positive encouragement to maintain high standards in public administration by public bodies”); R v SSHD, ex p Brind [1991] 1 AC 696, 751B (Lord Templeman: “judicial review [is] a remedy invented by the judges to restrain the excess or abuse of power”); R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, 62B (Lord Griffiths: “The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended”). 1.1.4 Judicial review: securing obedience to law. R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §56 (Lord Mance: “Judicial review … is in origin a development of the common law, to ensure regularity in executive and subordinate legislative activity and so compliance with the rule of law”); McDonald v McDonald [2016] UKSC 28 [2017] AC 273 at §64 (Lord Neuberger and Lady Hale: “public authorities are obliged to use their powers lawfully in accordance with the general principles of public law”); Land Securities Plc v Fladgate Fielder [2009] EWCA Civ 1402 [2010] Ch 467 at §70 (Etherton LJ: “There is a public interest in bringing judicial scrutiny and remedies to bear on improper acts and decisions of public bodies”), §94 (the “essential nature” of judicial review being 6

P1 A CONSTITUTIONAL GUARANTEE

“to ensure that a public body complies with the law”); Sheffield City Council v Smart [2002] EWCA Civ 4 [2002] HLR 639 at §20 (describing judicial review as “the means by which the exercise of power by any public authority is strictly limited to the scope and purposes of the power’s grant, and subjected also to the common law’s insistence on rationality and fairness”, with the HRA as “a condition of the lawful exercise of power by every public authority”); R v Secretary of State for Transport, ex p London Borough of Richmond Upon Thames (No 3) [1995] Env LR 409, 415 (“the purpose of judicial review is to ensure that government is conducted within the law”); {1.2} (judicial review and the rule of law). 1.1.5 Positing serious abuse of power to test availability of judicial review: legal limits. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §42 (Lady Hale and Lord Reed: “The sovereignty of Parliament would … be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament. … An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty”), §43 (“it is no answer to these points to say … that the court should decline to consider extreme hypothetical examples. The court has to address the argument … that there are no circumstances whatsoever in which it would be entitled to review a decision that Parliament should be prorogued (or ministerial advice to that effect). In addressing that argument, it is perfectly appropriate, and necessary, to consider its implications”). 1.1.6 Positing serious abuse of power to test availability of judicial review: reviewability. {P34} (reviewability/non-reviewability); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 827C (Sir John Donaldson MR: “what is to happen if the panel goes off the rails? Suppose … that it were to use its powers in a way which was manifestly unfair”), 845H; R (Liberal Democrats) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin) [2020] 4 WLR 4 at §§92-93 (considering whether reviewability affected by positing an “extreme” example); R v Criminal Injuries Compensation Board, ex p P [1995] 1 WLR 845, 863D-E (using “the fanciful but archetypal example of perversity, [namely] if the scheme had been revised in 1979 to exclude only redheaded victims”); R v SSHD, ex p Ruddock [1987] 1 WLR 1482, 1491G-H (“To take an extreme and one hopes unlikely example, suppose an application were put before the court alleging a warrant was improperly issued by a Secretary of State against a political opponent … to see if anything discreditable could be learnt”); R v Commissioner of the Metropolis, ex p Blackburn [1968] 2 QB 118, 148E-G (police duty enforceable by mandatory order, since otherwise “however brazen the failure of the police to enforce the law, the public would be wholly without a remedy. … The very idea is as repugnant as it is startling”). 1.1.7 Positing serious abuse of power to test availability of judicial review: ouster. {P28} (ouster); R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§125-126 (testing the statutory ouster by positing “such extreme cases” as when “the judicial process itself has been ‘frustrated or corrupted’, including ‘substantial denial of the right to a fair hearing’” or “actual bias”); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 170B-E (Lord Reid, positing the case of a statutory ouster and an order which is “a forgery”); Ex p Waldron [1986] QB 824, 846G-H (referring to the “serious inadequacy in the powers of the courts to protect the citizen from an actual or potential loss of liberty arising out of a serious error of law”). 1.1.8 Positing serious abuse of power to test availability of judicial review: standing. {P38} (standing); R v Inland Revenue Commissioners, ex p National Federation of SelfEmployed and Small Businesses Ltd [1982] AC 617, 641C (Lord Diplock, describing the need to avoid a “grave lacuna”, based on the prospect of “flagrant and serious breaches of the law by persons and authorities exercising governmental functions which are continuing unchecked”); {38.2.5} (standing: avoiding Lord Diplock’s rule of law ‘lacuna’). 1.1.9 Positing serious abuse of power to test availability of judicial review: alternative remedy. {P38} (alternative remedy); R (Glencore Energy Ltd) v HMRC [2017] EWCA 7

THE NATURE OF JUDICIAL REVIEW

Civ 1716 [2017] 4 WLR 213 at §55 (Sales LJ: “where it is clear that a public authority is acting in defiance of the rule of law the High Court will be prepared to exercise its jurisdiction then and there without waiting for some other remedial process to take its course”), §61 (describing the situation “where there is some serious error amounting to an abuse of power. It is only in that exceptional type of case that there is a compelling need for the court to intervene by way of judicial review in order to vindicate the rule of law, overriding the usual considerations which ordinarily mean that the appeal should be treated as the suitable remedy to be pursued”), §62 (giving examples of where evidence of a bribe, or where “breach of a promise … which gave rise to an enforceable legitimate expectation … of a kind which could not be vindicated in an appeal … or possibly if there was a clear failure by the Designated Officer, manifest on the face of the Charging Notice, even to attempt to comply with the requirements of [the statute]”).

1.2 Judicial review and the rule of law. Judicial review is the role which the Courts have established for upholding and enforcing the rule of law in the context of public authorities. It ensures that public authorities are accountable to law, securing that their public functions are undertaken according to law. It means, in a practical and effective way, that public authorities are not ‘above the law’. 1.2.1 The rule of law: a constitutional fundamental. {7.2.1} (the rule of law as a constitutional principle). 1.2.2 Judicial review is fundamental to the rule of law. R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 at §127 (Lord Neuberger: “There is no more fundamental aspect of the rule of law than that of judicial review of executive decisions or actions”); R (Horeau) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) [2019] 1 WLR 4105 (DC) (CA is [2020] EWCA Civ 1010) at §326 (“Judicial review is an important mechanism for the maintenance of the rule of law”), endorsed in R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §54; R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §56 (Lord Mance: “Judicial review … is … to ensure regularity in executive and subordinate legislative activity and so compliance with the rule of law”); R (Evans) v Attorney General [2015] UKSC 21 [2015] AC 1787 at §52 (Lord Neuberger: “it is … fundamental to the rule of law that decisions and actions of the executive are, subject to necessary well established exceptions (such as declarations of war), and jealously scrutinized statutory exceptions, reviewable by the court at the suit of an interested citizen”); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §142 (Lord Reed: “Judicial review under the common law is based upon an understanding of the respective constitutional responsibilities of public authorities and the courts. The constitutional function of the courts in the field of public law is to ensure, so far as they can, that public authorities respect the rule of law. The courts therefore have the responsibility of ensuring that the public authority in question does not misuse its powers or exceed their limits”); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §37 (Lady Hale: “the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law – that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise”), §64 (Lord Phillips: “The rule of law requires that the laws enacted by Parliament, together with the principles of the common law that subsist with those laws, are enforced by a judiciary that is independent of the legislature and the executive”), §122 (Lord Dyson: “there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review”); R (Alvi) v SSHD [2012] UKSC 33 at §38 (Lord Hope: “The rule of law requires that the Secretary of State must fulfil the duty that has been laid on her by [the] Act. In the event of a challenge it is for the courts to say whether or not she has done so”); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §73 (“The principles of judicial review give effect to the rule of law”); Bobb v Manning [2006] UKPC 22 [2006] 4 LRC 735 at §14 (“The rule of law requires that those 8

P1 A CONSTITUTIONAL GUARANTEE

exercising public power should do so lawfully”), applied in Attorney General of Trinidad and Tobago v Dumas [2017] UKPC 12 [2017] 1 WLR 1978 at §15; Toussaint v Attorney General of Saint Vincent & the Grenadines [2007] UKPC 48 [2007] 1 WLR 2825 at §29 (judicial review as part of the rule of law); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756 at §41 (referring to “the rule of law, to which the principles of judicial review give effect”); R v HM the Queen in Council, ex p Vijayatunga [1988] QB 322, 343E-F (“Judicial review is the exercise of the court’s inherent power at common law to determine whether action is lawful or not; in a word to uphold the rule of law”); R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [1998] Env LR 415, 424 (judicial review Court is “primarily concerned with the maintenance of the rule of law by the imposition of objective legal standards upon the conduct of public bodies”). 1.2.3 The rule of law: Mandela responding to defeat in Court. The following illustration is given by Professor Mark Kende in President Nelson Mandela’s Constitutional Law Legacy (2006). After the Constitutional Court of South Africa ruled in Executive Council for Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 that the President had exceeded his authority, by attempting to amend a provincial government order, President Mandela responded as follows in a public statement: “the judgment of the Constitutional Court confirms that our democracy is taking firm root and that nobody is above the law”. 1.2.4 The rule of law outweighs inconvenience. R (AA (Sudan)) v SSHD [2017] EWCA Civ 138 [2017] 1 WLR 2894 at §45 (“objective fact” analysis, notwithstanding “in terrorem arguments” based on “very great difficulties”); Bradbury v Enfield LBC [1967] 1 WLR 1311, 1324H (Lord Denning MR: “Even if chaos should result, still the law must be obeyed”); R v SSHD, ex p Fayed [1998] 1 WLR 763, 777B (Lord Woolf MR: “Administrative convenience cannot justify unfairness”); Francis v Secretary of State for Work and Pensions [2005] EWCA Civ 1303 [2006] 1 WLR 3202 at §30 (Sir Peter Gibson: “administrative convenience cannot in itself be a sufficient justification for discrimination”); R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 [2005] 1 WLR 2219 at §8 (Government “not entitled to sacrifice fairness on the altar of speed and convenience, much less of expediency; and whether it has done so is a question of law for the courts”); R v Paddington Valuation Officer, ex p Peachey Property Corporation Ltd [1966] 1 QB 380, 418D (“inconvenience” not “a justification for ignoring invalidity”), 419D (remedy albeit that “to do so would produce inconvenience and chaos for the rating authority”; “otherwise the law could be flouted and injustice perpetrated with impunity”); Hourigan v Secretary of State for Work and Pensions [2002] EWCA Civ 1890 [2003] 3 All ER 924 (administrative convenience not a reason to give income support regulations a manifestly unfair meaning); R v Secretary of State for Trade, ex p Vardy [1993] ICR 720, 762G (“enormous problems” but these “must be resolved within the law, not outside it”); R (FZ) v Croydon LBC [2011] EWCA Civ 59 [2011] PTSR 748 at §4 (recognition of factual question whether claimant a “child” as a precedent fact for the Court involving “an extensive and time consuming process” which “stretches the court’s resources” but Supreme Court was not “concerned with the administrative consequences of this”); {14.3.1} (justice trumps convenience: Spackman). 1.2.5 Judicial review as a protection. R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 535F (Lord Keith: “Judicial review is a protection and not a weapon”); DPP v Hutchinson [1990] 2 AC 783, 819F (Lord Lowry: “the sounder aspects of judicial review … have promoted freedom and have afforded protection from power”); R v SSHD, ex p Moon (1996) 8 Admin LR 477, 485C (Sedley J: “it is precisely the unpopular [claimant] for whom the safeguards of due process are most relevant in a society which acknowledges the rule of law”); R v Norfolk County Council, ex p M [1989] QB 619, 628D-E (Waite J: “it is not the law that local authorities are free to exercise arbitrary control over the entry of names of alleged abusers on a child abuse register with total immunity from supervision by the courts. Any such immunity would seriously erode the rights of the citizen”); Hazell v Hammersmith & Fulham LBC [1992] 2 AC 1, 36F-G (Lord Templeman: “The object of the doctrine of ultra vires is the protection of the public”); {1.1.1} (judicial review: an essential constitutional protection). 9

THE NATURE OF JUDICIAL REVIEW

1.2.6 Judicial review: wrong for the Court to abdicate its role. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §39 (Lady Hale and Lord Reed: “the courts have the … particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility”); R (International Transport Roth GmbH) v SSHD [2002] EWCA Civ 158 [2003] QB 728 at §27 (Simon Brown LJ: “the court’s role under the 1998 [Human Rights] Act is as the guardian of human rights. It cannot abdicate this responsibility”), §54 (“Constitutional dangers exist no less in too little judicial activism as in too much”); Laker Airways Ltd v Department of Trade [1977] QB 643, 707H-708B (Lord Denning MR: “It is a serious matter for the courts to declare that a minister of the Crown has exceeded his powers. So serious that we think hard before doing it. But there comes a point when it has to be done. These courts have the authority – and I would add, the duty – in a proper case, when called upon to inquire into the exercise of a discretionary power by a minister or his department. If it found that the power has been exercised improperly or mistakenly so as to impinge unjustly on the legitimate rights or interests of the subject, then these courts must so declare”); McEldowney v Forde [1971] AC 632, 653-D (Lord Pearce: “the duty of surveillance entrusted to the courts for the protection of the citizen” means the Court “cannot take the easy course of ‘passing by on the other side’ when it seems clear to it that the Minister is using a power in a way which Parliament, who gave him that power, did not intend. … The fact that this is not an easy line to draw is no reason why the courts should give up the task and abandon their duty to protect the citizen”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 652E-F (Lord Scarman: “The courts have a role, long established, in the public law. They are available to the citizen who has a genuine grievance if he can show that it is one in respect of which prerogative relief is appropriate. I would not be a party to the retreat of the courts from this field of public law merely because the duties imposed upon the revenue are complex and call for management decisions in which discretion must play a significant role”). 1.2.7 Judicial review: safeguarding the public interest. State of Mauritius v CT Power Ltd [2019] UKPC 27 at §44 (“the judicial review jurisdiction … exists to safeguard the public interest”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) [2018] ACD 91 at §20 (Singh LJ, describing judicial review as “a common enterprise with the court to fulfil the public interest in upholding the rule of law”), §22 (public authorities “are involved in the provision of fair and just public administration and must present their cases dispassionately and in the public interest”); Estate of M Kingsley (dec’d) v Secretary of State for Transport [1994] COD 358 (courts, as guardians of the public interest, needing to approve any grant of remedy where the parties consent); {38.2.13} (standing and the public interest); {18.4} (public interest costs, capping and the environment). 1.2.8 Public law is at base about public law wrongs: the Sedley observation. R v Somerset County Council, ex p Dixon [1998] Env LR 111, 121 (Sedley J: “Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs – that is to say misuses of public power”) {38.2.6}, applied in R (Hunt) v North Somerset Council [2015] UKSC 51 [2015] 1 WLR 3375 at §16 (Lord Toulson: “Public law is not about private rights but about public wrongs”), and in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 [2005] 1 WLR 2600 at §145; R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs [2007] EWCA Civ 498 [2008] QB 365 (CA) at §61 (Sedley LJ: “What modern public law focuses upon are wrongs – that is to say, unlawful acts of public administration. These often, of course, infringe correlative rights, but they do not necessarily do so: hence the test of standing for public law claimants, which is interest-based rather than rights-based”); R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 325a (Sedley J: “Public law is concerned not only with the vindication of positive rights, but with the redress of public wrongs wherever the court’s attention is called to them by a person or body with a sufficient interest”); {45.2.2} (public law error/public law wrong).

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1.2.9 The rule of law and reviewability. {P34} (reviewability/non-reviewability); R v Hull University Visitor, ex p Page [1993] AC 682, 704B (Lord Browne-Wilkinson, citing Czarnikow v Roth, Schmidt & Co [1922] 2 KB 478, 488 per Scrutton LJ: “There must be no Alsatia in England where the King’s writ does not run”); R v Commissioner of the Metropolis, ex p Blackburn [1968] 2 QB 118, 148E-G (Edmund-Davies LJ, explaining that policy duty enforceable by mandatory order, since otherwise “however brazen the failure of the police to enforce the law, the public would be wholly without a remedy. … The very idea is as repugnant as it is startling. … How ill it accords with the seventeenth century assertion of Thomas Fuller that, ‘Be you never so high, the law is above you’ … its effect would be to place the police above the law”); R v Board of Visitors of Hull Prison, ex p St Germain [1979] QB 425, 455B-E (Shaw LJ, referring to the courts as “ultimate custodians of the rights and liberties of the subject” so that declining jurisdiction would be “tantamount to abdicating a primary function of the judiciary”); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 827A-B (Sir John Donaldson MR, characterising the “principal issue” as “whether this remarkable body is above the law”), 839A-B (“unthinkable that … the panel should go on its way cocooned from the attention of the courts in defence of the citizenry”) and 846C (Lloyd LJ: “The courts must remain ready, willing and able to hear a legitimate complaint in this as in any other field of our national life”); R v Tower Hamlets LBC, ex p Chetnik Developments Ltd [1988] AC 858, 872B-F (“Unreviewable administrative action is just as much a contradiction in terms as is unfettered discretion, at any rate in the case of statutory powers”); R v J [2004] UKHL 42 [2005] 1 AC 562 at §38 (Lord Steyn: “The CPS as an independent law enforcement agency carry out duties of a public character. It must act fairly and within the law. It must observe statute law as Parliament framed it. In our Parliamentary democracy nobody is above the law”). 1.2.10 The rule of law and alternative remedy. {P36} (alternative remedy); R (Glencore Energy Ltd) v HMRC [2017] EWCA Civ 1716 [2017] 4 WLR 213 at §55 (Sales LJ: “the [alternative remedy] principle is based on the fact that judicial review in the High Court is ordinarily a remedy of last resort, to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective. However … where it is clear that a public authority is acting in defiance of the rule of law the High Court will be prepared to exercise its jurisdiction then and there without waiting for some other remedial process to take its course”). 1.2.11 The rule of law and ouster. {28.1.4} (court decides whether ouster compatible with the rule of law: Lord Carnwath in Privacy). 1.2.12 The rule of law and no unfettered powers. {39.1} (no unfettered powers); J P Whitter (Water Well Engineers) Ltd v HMRC [2018] UKSC 31 [2018] 1 WLR 3117 at §21 (discretion not unfettered); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §45 (Lord Hope: “If the rule of law is to mean anything, decisions as to what is necessary or expedient in this context cannot be left to the uncontrolled judgment of the executive”); R v Tower Hamlets LBC, ex p Chetnik Developments Ltd [1988] AC 858, 872B-F (Lord Bridge, endorsing Professor Wade’s statement that: “in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms”); R v Somerset County Council, ex p Fewings [1995] 1 All ER 513, 524d-e (Laws J: “a truly unfettered discretion will at once put the decision-maker outside or, as I would prefer to say, above the law”); Laker Airways Ltd v Department of Trade [1977] QB 643, 707H-708B (prerogative powers not unfettered). 1.2.13 The rule of law and standing. {P38} (standing); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 644E-G (Lord Diplock, describing the “grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped”; central government officers and departments are “responsible to a court of justice for the lawfulness of what they do, and of that the court

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is the only judge”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 395G-H (Rose LJ, approaching standing with reference to “the importance of vindicating the rule of law”); {38.2.5} (standing: avoiding Lord Diplock’s rule of law ‘lacuna’). 1.2.14 The rule of law and coercive remedies. {P24} (remedies); M v Home Office [1994] 1 AC 377 (injunction/contempt available against the Crown), 395G (Lord Templeman, explaining that “the argument that there is no power to enforce the law by injunction or contempt proceedings … would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War”); R v Commissioners of Inland Revenue, ex p Kingston Smith [1996] STC 1210, 1211a, 1212e (Court initiating consideration of contempt powers against Inland Revenue of its own motion, so as to uphold the rule of law, where the Revenue had disregarded a pre-permission injunction). 1.2.15 The rule of law and certainty/transparency. {39.2.13} (basic transparency duties/ the principle of transparency); R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §26 (Lord Steyn: “Notice of a decision is required before it can have the character of a determination with legal effect”), §28 (“the constitutional principle requiring the rule of law to be observed … requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected”); Anwar v SSHD [2017] EWCA Civ 2134 [2018] 1 WLR 2591 at §51 (referring to “the fundamental constitutional principles … set out … in … Anufrijeva”), §68 (“the constitutional principles which lie behind the requirement of notice in writing”); {39.2.14} (whether duty to communicate a decision: effectiveness and notification); R (Salih) v SSHD [2003] EWHC 2273 (Admin) at §45 (Stanley Burnton J: “It is a fundamental requisite of the rule of law that the law should be made known”), §52 (“constitutional imperative” applied to extra-statutory policy, that Government should not “withhold information about its policy relating to the exercise of a power conferred by statute”); R (L) v SSHD [2003] EWCA Civ 25 [2003] 1 WLR 1230 at §17 (“legal certainty is an aspect of the rule of law”), §25 (“It is an aspect of the rule of law that individuals and those advising them, since they will be presumed to know the law, should have access to it in authentic form”); {46.1.12} (uncertainty as ultra vires/invalidity); {57.3.7 (unreasonableness: uncertainty). 1.2.16 The rule of law and basic fairness/due process. R (Reprieve) v Prime Minister [2020] EWHC 1695 (Admin) at §38 (Dame Victoria Sharp P and Farbey J: “the right to a fair hearing is a cornerstone of the rule of law”); R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 [2017] 4 WLR 92 at §4 at §3 (“The seventh of Lord Bingham’s eight principles of the rule of law is that adjudicative procedures provided by the state should be fair”, citing Bingham, The Rule of Law (2011) 90); R v SSHD, ex p Pierson [1998] AC 539, 591F (Lord Steyn: “the rule of law enforces minimum standards of fairness, both substantive and procedural”); R v SSHD, ex p Fayed [1998] 1 WLR 763, 778A (Lord Woolf MR: “[The claimants] have not had the fairness to which they were entitled and the rule of law must be upheld”); R (Anderson) v SSHD [2002] UKHL 46 [2003] 1 AC 837 at §39 (Lord Steyn, emphasising the importance of the rule of law in the context of HRA-incompatibility of Ministerial tariff-setting); Thomas v Baptiste [2000] 2 AC 1, 22B-C (“‘due process of law’ is a compendious expression in which the word ‘law’ … invokes the concept of the rule of law itself and the universally accepted standards of justice observed by civilised nations which observe the rule of law”); R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, applying Connelly v DPP [1964] AC 1254, 1354 (Lord Devlin, describing the courts’ “inescapable duty to secure fair treatment for those who come or are brought before them”); {7.7} (basic fairness/natural justice); {35.2.7} (principle of legality and basic common law fairness/natural justice/impartiality); {54.1.1} (minimum standards of substantive and procedural fairness: the rule of law). 1.2.17 The rule of law: the constitutional imperative of preventing abuse of power. A v SSHD [2004] EWCA Civ 1123 [2005] 1 WLR 414 (CA) at §248 (Laws LJ, describing the “general constitutional principle … that the law forbids the exercise of State power in an 12

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arbitrary, oppressive or abusive manner. This is, simply, a cardinal principle of the rule of law. The rule of law requires, not only that State power be exercised within the express limits of any relevant statutory jurisdiction, but also fairly and reasonably and in good faith”), §251 (“a basic truth which applies in any jurisdiction where public power is subject to the rigour of democracy and the rule of law … is that State power is not only constrained by objective law – that is, the imperative that it be exercised fairly, reasonably and in good faith and within the limits of any relevant statute. More than this: the imperative is one which cannot be set aside on utilitarian grounds, as a means to a further end. It is not in any way to be compromised”), §252 (“the constitutional principle which forbids abuse of State power”) (HL is [2005] UKHL 71 [2006] 2 AC 221). 1.2.18 The rule of law and publicly funded litigation. R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin) [2012] 1 WLR 838 at §25 (Laws LJ, describing it as “inimical to the rule of law” for “the state to inhibit litigation by the denial of legal aid because the court’s judgment might be unwelcome or apparently damaging”, as “an attempt to influence the incidence of judicial decisions in the interests of government”). 1.2.19 The rule of law and proportionality. Beghal v DPP [2015] UKSC 49 [2016] AC 88 at §75 (Lord Neuberger and Lord Dyson: “the rule of law crucially requires the court to be vigilant when assessing the necessity or proportionality of both the contents and the implementation of any statute which interferes with human rights”).

1.3 Judicial review’s constitutional inalienability. The case law contains clear recognition of a principled constitutional imperative regarding the impregnability of judicial review, including an imperviousness to any legislative curtailment of judicial review incompatible with the rule of law. Key themes recognise that: (i) the rule of law is a constitutional imperative; (ii) the Courts have the constitutional function of determining and securing what the rule of law requires; and (iii) the rule of law requires judicial review. A significant (cardinal) principle which follows is this: that the Courts will secure the scope of judicial review required by the rule of law. 1.3.1 Judicial review: constitutional supervision of public authorities. {1.1} 1.3.2 Statutory ouster of judicial review. {28.1}; cf. {28.1.20} (no ouster of judicial review by contract). 1.3.3 Judicial review is required by the rule of law. R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §37 (Lady Hale: “the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law – that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise”), §64 (Lord Phillips: “The rule of law requires that the laws enacted by Parliament, together with the principles of the common law that subsist with those laws, are enforced by a judiciary that is independent of the legislature and the executive”), §122 (Lord Dyson: “there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review”); {1.1} (constitutional supervision of public authorities), {1.2} (judicial review and the rule of law); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §73 (“The principles of judicial review give effect to the rule of law”); Bobb v Manning [2006] UKPC 22 [2006] 4 LRC 735 at §14 (“The rule of law requires that those exercising public power should do so lawfully”); A v SSHD [2004] EWCA Civ 1123 [2005] 1 WLR 414 (CA) at §248 (Laws LJ, describing the “general constitutional principle … that the law forbids the exercise of State power in an arbitrary, oppressive or abusive manner. This is, simply, a cardinal principle of the rule of law. The rule of law requires, not only that State power be exercised within the express limits of any relevant statutory jurisdiction, but also fairly and reasonably and in good faith”), §251 (“a basic truth which applies in any jurisdiction where public power is subject to the rigour of democracy and the rule of law … is that State power is not only constrained by objective law – that is, the imperative that it be exercised fairly, 13

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reasonably and in good faith and within the limits of any relevant statute. More than this: the imperative is one which cannot be set aside on utilitarian grounds, as a means to a further end. It is not in any way to be compromised”), §252 (“the constitutional principle which forbids abuse of State power”). 1.3.4 The Courts determine what the rule of law requires. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§120-121 (Lord Carnwath: “it is for the courts, and ultimately the Supreme Court … to determine [the] contents and limits” of the “constitutional principle of the rule of law”), §131 (“it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review”). 1.3.5 Cardinal principle: Courts secure the scope of judicial review required by the rule of law. R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 (scope of judicial review of the UT), at §51 (Lady Hale, identifying the key question as “what level of independent scrutiny … is required by the rule of law”), §89 (Lord Phillips, asking what “judicial process … [is] justified by the demands of the rule of law”), §122 (Lord Dyson: “the scope of judicial review should be no more (as well as no less) than is proportionate and necessary for the maintaining of the rule of law”), §133 (seeking “a proportionate answer to the question: what scope of judicial review … is required to maintain the rule of law”), discussed in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§131-132; echoed, in the context of standing, by R (McCourt) v Parole Board [2020] EWHC 2320 (Admin) at §43 (Macur LJ and Chamberlain J: “What counts as a ‘sufficient interest’ … will vary depending on what the rule of law requires in the particular context of the decision under challenge”). 1.3.6 Judicial review to protect ongoing legislative supremacy. {7.4.3} 1.3.7 Judicial review: an inalienable constitutional function required by the rule of law. R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin) [2011] QB 120 at §38 (Laws LJ: “If the meaning of statutory text is not controlled by such a judicial authority, it would at length be degraded to nothing more than a matter of opinion. Its scope and content would become muddied and unclear. Public bodies would not, by means of the judicial review jurisdiction, be kept within the confines of their powers prescribed by statute. The very effectiveness of statute law, Parliament’s law, requires that none of these things happen. Accordingly, … the need for such an authoritative judicial source cannot be dispensed with by Parliament. This is not a denial of legislative sovereignty, but an affirmation of it: as is the old rule that Parliament cannot bind itself. The old rule means that successive Parliaments are always free to make what laws they choose; that is one condition of Parliament’s sovereignty. The requirement of an authoritative judicial source for the interpretation of law means that Parliament’s statutes are always effective; that is another”), endorsed in R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §30 (Lady Hale: “The rule of law requires that statute law be interpreted by an authoritative and independent judicial source”), itself adopted in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§115, 138, 160; R (Woolas) v Parliamentary Election Court [2010] EWHC 3169 (Admin) [2012] QB 1 at §52 (Thomas LJ, Tugendhat and Nicola Davies JJ, referring to “constitutional principles derived from the separation of powers and the rule of law”, under which “it is for the courts to determine the meaning of law enacted by Parliament”); A v B (Investigatory Powers Tribunal: Jurisdiction) [2009] EWCA Civ 24 [2009] 3 All ER 416 (CA) (Laws LJ: “It is elementary that any attempt to oust altogether the High Court’s supervisory jurisdiction over public authorities is repugnant to the Constitution”) (SC is [2009] UKSC 12 [2010] 2 AC 1). 1.3.8 The Courts would determine whether to apply a statutory restriction on judicial review. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §131 (Lord Carnwath, explaining the “critical step” taken in Cart [2012] 1 AC 663), §132 (describing this as “a natural application of the constitutional principle of the rule of law”), §144 (“In all cases, regardless of the words used, it should remain ultimately a matter 14

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for the court to determine the extent to which [an ouster] clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law”). 1.3.9 Judicial review and imperviousness to statutory exclusion. R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 at §102 (Lord Steyn, querying whether parliamentary supremacy would extend to “oppressive and wholly undemocratic legislation” such as “to abolish judicial review of flagrant abuse of power by a government or even the role of the ordinary courts in standing between the executive and citizens”, given that “the supremacy of Parliament is … a construct of the common law”), §104 (Lord Hope, referring to developing qualifications to the principle of parliamentary sovereignty), §107 (“the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based … the courts have a part to play in defining the limits of Parliament’s legislative sovereignty”), §110 (“no absolute rule that the courts could not consider the validity of a statute”); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §51 (Lord Hope, recognising “conflicting views about the relationship between the rule of law and the sovereignty of Parliament”; and that, at least in the context of an Act of the Scottish Parliament, this response to an attempt to “abolish judicial review”: “The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise”). 1.3.10 Disapplying statutory exclusion of judicial review: Cheltenham Commissioners. R (Evans) v Attorney General [2015] UKSC 21 [2015] AC 1787 at §55 (Lord Neuberger: “In R v Cheltenham Commissioners (1841) 1 QB 467, a statute provided that any decision of the Quarter Sessions as to the levying of certain rates was to be ‘final, binding, and conclusive to all intents and purposes whatsoever’, and that no order made in that connection ‘shall … be removed or removable by certiorari, or any other writ or process whatsoever, …; any law or statute to the contrary thereof in anywise notwithstanding’. Despite this, Lord Denman CJ robustly stated at p 474 that: ‘[T]he clause which takes away the certiorari does not preclude our exercising a superintendence over the proceedings, so far as to see that what is done shall be in pursuance of the statute. The statute cannot affect our right and duty to see justice executed; and, here, I am clearly of opinion that justice has not been executed’”); R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §35 (discussing Cheltenham Commissioners); De Smith, Judicial Review of Administrative Action (1st edition, 1959) 227 (“Even where the right to certiorari had been expressly taken away by statute, the courts … persistently declined to construe the words of the statute literally”). 1.3.11 Disapplying statutory exclusion of judicial review: Lord Carnwath. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §122 (Lord Carnwath, suggesting that: “it is … clearly established … that there are certain fundamental requirements of the rule of law which no form of ouster clause (however clear and explicit’) could exclude from the supervision of the courts”), §123 (“Parliament cannot entrust a statutory decision-making process to a particular body, but then leave it free to disregard the essential requirements laid down by the rule of law for such a process to be effective”), §144 (“I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction or error of law”). 1.3.12 Disapplying statutory exclusion of judicial review: other. R v SSHD, ex p Fayed [1998] 1 WLR 763, 771B-773C (Act of Parliament expressly providing that decision, as well as being unappealable, “shall not be subject to … review in, any court”; but this “does not prevent the court exercising its jurisdiction to review a decision on the traditional grounds available on an application for judicial review”); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (judicial review available despite provision stating that determinations of the FCC are “not to be called into question in any legal proceedings whatsoever”); {28.1.17} (statutory ousters never applied to a ‘nullity’); {44.2.1} (all public law grounds/wrongs/flaws produce ‘nullity’); R (Evans) v Attorney General [2015] UKSC 21 15

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[2015] AC 1787 at §54 (Lord Neuberger, explaining that what “lay behind” the decision in Anisminic was the “constitutional importance of the principle that a decision of the executive should be reviewable by the judiciary”). 1.3.13 Attempting to exclude judicial review: observations. R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §73 (Lord Phillips, recognising that it is “controversial” as to whether parliamentary sovereignty is limited: “Hopefully the issue will remain academic”), §89 (“Parliament has not sought to oust or fetter the common law powers of judicial review of the judges of the High Court and I hope that Parliament will never do so”); Professor Geoffrey Wilson, The Courts, Law and Convention in The Making and Remaking of the British Constitution (1997) 116 (“Nobody should be surprised if in a real case of legislative enormity the courts did not discover a higher principle of law by which they felt free or even obliged to ignore the current version of the doctrine [of parliamentary sovereignty] not only in the name of constitutional convention but also in the name of law”); R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 at §110 (“no absolute rule that the courts could not consider the validity of a statute”); {12.3} (judicial review of primary legislation at common law). 1.3.14 Permissible statutory restrictions. Farley v Secretary of State for Work and Pensions (No 2) [2006] UKHL 31 [2006] 1 WLR 1817 at §18 (not an ouster where jurisdictional limitation part of a statutory scheme locating jurisdiction to another court); {36.2.2} (whether statutory remedy exclusive); {P36} (alternative remedy); {28.2} (time-limit ousters); Dennis Hutchings [2019] UKSC 26 at §54 (Lord Kerr, discussing the intended “curtailment of the full spectrum of judicial review” of a non-jury trial certification, by virtue of the Justice and Security (Northern Ireland) Act 2007 s.7, characterising this as reflecting the common law position of restricted review in the parallel situation of judicial review of prosecutorial decisions: see §§58, 60). 1.3.15 Dual sovereignty: Parliament and the judiciary. {12.3.9}

16

P2 Supervisory jurisdiction. Judicial review is the process, with its distinctive features, for exercising the Court’s supervisory jurisdiction over public authorities. 2.1 Judicial review in the Administrative Court 2.2 Upper Tribunal judicial review (UTJR) 2.3 Cart claims 2.4 Planning Court claims 2.5 Other similar supervisory jurisdictions 2.6 Impact of judicial review

2.1 Judicial review in the Administrative Court. This supervisory jurisdiction over public authorities operates, ultimately, by reference to whether there is a ground for judicial review (ie a recognisable public law wrong). The jurisdiction is different from both (i) ordinary adversarial litigation between private parties and (ii) an appeal from the decision of a public authority by rehearing on the merits. The High Court (Administrative Court)’s supervisory jurisdiction was an invention of the common law. It has been reinforced by statute and is regulated by rules. The judicial review process, and life in the Administrative Court, has an array of familiar features. The principles and procedure have evolved. Applicable procedural rules and principles have been reformed and refined. Practice and procedure matter. 2.1.1 The Administrative Court Judicial Review Guide. Administrative Court: Judicial Review Guide (2020 edition) at §1.1.1 (“a general explanation of the practice and procedures of the Administrative Court in relation to judicial review”), §1.1.3 (“regard should be had to it by all those engaged in proceedings in the Administrative Court. … Parties will be expected to act in accordance with it”); R (AB) v Chief Constable of Hampshire Constabulary [2019] EWHC 3461 (Admin) at §108 (Dame Victoria Sharp P: “The rules and the relevant case law are summarised in the … Guide to which regard should be had by all those engaged in proceedings”); R (Dalton) v CPS [2020] EWHC 2013 (Admin) at §54 (no excuse for failing to have regard to the Guide). 2.1.2 Essential characteristics of judicial review procedure. Richards v Worcestershire County Council [2017] EWCA Civ 1998 [2018] PTSR 1563 at §60 (Rupert Jackson LJ, describing “the essential characteristics” of CPR Part 54 as follows: “These are a strict time limit for commencement of proceedings, a requirement for permission to proceed, absence of conventional pleadings and a short oral hearing with little or no oral evidence”); {45.2.2} (public law error/public law wrong). 2.1.3 Basic steps in a judicial review case. The most important generally encountered headline steps are: (1) pre-action correspondence {19.1}; (2) commencement of the claim {19.2}; (3) acknowledgement of service (AOS) {19.3}; (4) permission stage {P21}; (5) defendant’s detailed grounds and evidence {22.1.5}; (6) skeleton arguments {22.1.38}-{22.1.39}; (7) substantive hearing {22.4}; (8) any substantive appeal {23.2}. 2.1.4 Judicial review: the High Court’s special function. R v Leeds County Court, ex p Morris [1990] 1 QB 523, 530G, 531B (describing “the unique and multi-purpose function” of judicial review with “wide powers to countermand the decisions of others”); R v Greater Manchester Coroner, ex p Tal [1985] QB 67, 80G-H (describing the “supervisory jurisdiction” of judicial review); Adesotu v Lewisham LBC [2019] EWCA Civ 1405 [2019] 1 WLR 5637 at §16 (in the Equality Act 2010 s.113(3)(a) the phrase “claim for judicial review” meaning “a claim for judicial review in the strict sense, that is one brought in the High Court under Part 54 of the Civil Procedure Rules”); {1.1} (constitutional supervision of public authorities).

THE NATURE OF JUDICIAL REVIEW

2.1.5 Ten principled observations capturing the spirit of judicial review. {1.2.8} Public law is at base about public law wrongs: the Sedley observation. {1.3.5} Cardinal principle: Courts secure the scope of judicial review required by the rule of law. {2.1.33} In public law, substance matters rather than form: Lord Steyn’s observation. {11.1.3} Precedent is a guide, not a cage: the Bingham maxim. {14.1.3} Striking a balance: Simon Brown LJ’s dual constitutional dangers. {15.1.6} ‘Soft’ review: Lawton LJ’s referee. {31.1.1} ‘Context is everything’: Lord Steyn’s maxim. {31.4.3} Principled flexibility: Sedley LJ’s toddler lawyers in a playgroup. {31.4.4} Principled flexibility and human rights: Laws LJ’s quicksilver. {64.3.2} Adequacy of reasons: genuine as opposed to forensic doubt (the Bingham test). 2.1.6 Common law origins, statutory underpinning. R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §56 (Lord Mance: “Judicial review … is in origin a development of the common law, to ensure regularity in executive and subordinate legislative activity and so compliance with the rule of law, but it is regulated now by the Senior Courts Act 1981”), §59 (“judicial review … regulated by statutory underpinning”); General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193 at §31 (Lord Kerr: “judicial review originated as a common law procedure and not by virtue of any enactment”), §32 (“Its origins lie in the common law”), §33 (“Section 31 of the Senior Courts Act 1981 did not establish judicial review as a procedure, but rather regulated it”) §34 (“the High Court’s jurisdiction would remain” if the 1981 Act were repealed); Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521, 526A (Lord Templeman: “Judicial review was a judicial invention”); {1.1.2} (judicial review: a triumph for the common law). 2.1.7 Judicial review: the historical context. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §31 (Lady Hale and Lord Reed: “the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries”); R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §§31-33 (Lord Carnwath, explaining that: “The supervisory role of the King’s court (curia regis), or the King’s Bench Division of the High Court as it became, has a long history”, traced back “to the time of William I”, with the “King’s Bench … established by the end of the thirteenth century”); Sir Stephen Sedley, The Common Law and the Constitution in The Making and Remaking of the British Constitution (1997) 19 (“it was … the Victorian judges … who were responsible for first turning judicial review into a developed system for supervising the lower courts and official bodies to whom state power was being systematically delegated. It was in their judgments that you will first find the tests of lawful decision-making which Lord Greene MR later summarised in the Wednesbury case”); R v Somerset County Council, ex p Dixon [1998] Env LR 111, 119 (“there turns out to be little which was not considered and decided in the great flowering of English public law between the 1860s and the First World War”); De Smith, Judicial Review of Administrative Action (1st edition, 1959) 259 (certiorari in common use from about 1280), 267 (first record of the designation as ‘the prerogative writs’ was in 1759), 253 (Administration of Justice (Miscellaneous Provisions) Act 1958 renamed the prerogative writs as prerogative orders, which “reflected only a simplification of procedure, the substantive law remain[ed] the same”). 2.1.8 The supervisory jurisdiction summarised.2 Administrative Court: Judicial Review Guide (2020 edition) at §1.7.2 (“Judicial review is the procedure by which an individual, company, or organisation may challenge the act or omission of a public body and ensure that the public body meets its legal obligations”); Judicial Review Pre-Action Protocol §4 (“Judicial review allows people with a sufficient interest in a decision or action by a public

2The equivalent paragraph in a previous edition was relied on in ZN v Secretary for Justice [2016] HKCFI 2179 (Hong Kong

Court of First Instance) at §16 (Hon Zervos J).

18

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body to ask a judge to review the lawfulness of – (a) an enactment; or (b) a decision, action or failure to act in relation to the exercise of a public function”); R (LXD) v Chief Constable of Merseyside Police [2019] EWHC 1685 (Admin) at §107 (Dingemans J, describing judicial review as “the speedy auditing by the Court of the legality of decisions”); R (A) v South Kent Coastal CCG [2020] EWHC 372 (Admin) at §79 (Farbey J: “The supervisory nature of the court’s jurisdiction is an important constitutional principle. It delineates the respective democratic functions of judges and those who are elected, or delegated by Parliament in legislation, to take decisions on behalf of the public”); General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193 at §20 (Lord Kerr: “Judicial review … is … a proceeding in which the legality of or the procedure by which a decision was reached is challenged”); Reid v Secretary of State for Scotland [1999] 2 AC 512, 541F-542A (Lord Clyde: “Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence”); R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §112 (Lord Phillips: “Starting from the received checklist of justiciable errors set out by Lord Diplock in [GCHQ] [1985] AC 374, the courts … have developed an issue-sensitive scale of intervention to enable them to perform their constitutional function in an increasingly complex polity. They continue to abstain from merits review – in effect, retaking the decision on the facts – but in appropriate classes of case they will today look very closely at the process by which facts have been ascertained and at the logic of the inferences drawn from them. Beyond this, courts of judicial review have been competent since the decision in [Anisminic] [1969] 2 AC 147 to correct any error of law whether or not it goes to jurisdiction; and since the coming into effect of the Human Rights Act 1998, errors of law have included failures by the state to act compatibly with the Convention”); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 842F-H (Sir John Donaldson MR: “an application for judicial review is not an appeal. The [defendant] and not the court is the body charged with the duty of evaluating the evidence and finding the facts. The role of the court is wholly different. It is, in an appropriate case, to review the decision of the panel and to consider whether there has been ‘illegality’, … ‘irrationality’, … or ‘procedural impropriety’”). 2.1.9 Judicial review: the Court’s special/proactive role. Estate of M Kingsley (dec’d) v Secretary of State for Transport [1994] COD 358 (describing the judicial review court as the ‘guardian of the public interest’); Alibkhiet v Brent LBC [2018] EWCA Civ 2742 at §38 (Lewison LJ: “the court is the guardian of legality”); {3.1} (procedural rigour); {19.2.7}, {19.3.5} (parties cannot extend time for claim form or AOS by agreement); {34.2.2} (reviewability goes to jurisdiction/not conferred by parties’ agreement); {38.1.4} (standing: a jurisdictional precondition: not conferred by consent); R v SSHD, ex p Bulger [2001] EWHC Admin 119 [2001] 3 All ER 449 at §18 (Court raising question of standing of its own motion); R (O’Byrne) v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 499 [2002] HLR 567 (CA) at §40 (appeal restored because of different basis for decision, appearing to the Court after the close of argument); Cachia v Faluyi [2001] EWCA Civ 998 [2001] 1 WLR 1966 at §16 (permission to amend granted, to take HRA point, “since the court would in any event have been obliged to consider it pursuant to our duty under section 6(1) of the Act”); R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935 [2002] 19

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1 WLR 803 at §2 (court should use its “ample powers under the CPR to ensure that the parties try to resolve the dispute with the minimum involvement of the courts”), §3 (“To achieve this objective the court may have to hold, on its own initiative, an inter partes hearing at which the parties can explain what steps they have taken to resolve the dispute without the involvement of the courts”); R (Lord v SSHD [2003] EWHC 2073 (Admin) at §26 (court convening an ‘in camera’ hearing of its own motion). Also of possible interest: R (Ademiluyi) v SSHD [2017] EWHC 935 (Admin) at §26 (“The judicial review court is the guardian of the public interest”). 2.1.10 Judicial review: proceedings are in the name of the Crown. Administrative Court: Judicial Review Guide (2020 edition) at §2.4.1 (“In judicial review proceedings the case title differs from other civil proceedings to reflect the fact that judicial review is the modern version of a historical procedure whereby Her Majesty’s Judiciary, on her behalf, acted in a supervisory capacity. Technically a judicial review is brought by the Crown, on the application of the claimant, to ensure that powers are being properly exercised. The case title reflects this”, referring to Practice Direction (Administrative Court: Establishment) [2000] 1 WLR 1654); R (PML Accounting Ltd) v HMRC [2018] EWCA Civ 2231 [2019] 1 WLR 2428 at §62 (Longmore LJ, describing as the parties to judicial review as being the defendant “and the Crown whose supervisory power is being invoked by” the claimant); Land Securities Plc v Fladgate Fielder [2009] EWCA Civ 1402 [2010] Ch 467 at §94 (Moore-Bick LJ: “the public has an interest in ensuring that breaches of the law by public bodies are identified and, where appropriate, corrected. It is difficult, therefore, to contemplate a case in which the Crown, in whose name the proceedings are brought, does not have a proper interest in obtaining whatever remedy the court may see fit to grant”); R v Commissioners of Customs and Excise, ex p Kay and Co [1996] STC 1500, 1517c-d (“It might be thought that … the bringing of … judicial review proceedings in the name of the Crown is no more than a formality. However, it reflects the fact that this court is dealing with what are essentially issues of public law”); In re Waldron [1986] QB 824, 840D (“Judicial review involves an inquiry into a decision … not an action against the decision-maker”); R v Traffic Commissioner for the North Western Traffic Area, ex p BRAKE [1996] COD 248 (claimant invoking supervisory jurisdiction of the Court, through proceedings brought nominally by the Crown); R (Ben-Abdelaziz) v Haringey LBC [2001] EWCA Civ 803 [2001] 1 WLR 1485 (although nominally in the name of the Crown, judicial review not “proceedings brought by or at the instigation of a public authority” for the purposes of HRA s.22(4)). 2.1.11 Judicial review as ‘civil’ or ‘criminal’ proceedings. Jacpot Ltd v Gambling Regulatory Authority [2018] UKPC 16 at §8 (Lord Sumption: “Judicial review proceedings … are not a sui generis category of litigation, neither civil nor criminal. They may be one or the other, depending on their subject-matter and on the nature and purpose for which they are being classified. But as a general rule, and subject to any special context pointing to a different result, judicial review proceedings are criminal proceedings only ‘if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine”); R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 (judicial review of DPP’s decision not to prosecute constituting “a criminal cause or matter” and so not “relevant civil proceedings” for purposes of statutory application of closed material procedure); Eastenders Cash & Carry Plc v HMRC (No 2) [2012] EWCA Civ 689 [2012] 1 WLR 2912 at §28 (in the context of a statutory bar on costs, judicial review constituting “civil proceedings”) (SC is [2014] UKSC 34 [2015] AC 1101); Ewing v DPP [2010] EWCA Civ 70 (judicial review constituting “civil proceedings” for the purposes of ‘vexatious litigant’ order, even if a “criminal cause or matter”); R v Bradford Metropolitan Borough Council, ex p Sikander Ali [1994] ELR 299, 315C-316B (judicial review not “proceedings, whether civil or criminal” for purposes of statutory ouster). 2.1.12 Whether HRA:ECHR Art 6 applicable to judicial review proceedings. {59.5.7} (HRA Art 6: determination of civil right or obligation); R (Reprieve) v Prime Minister [2020] EWHC 1695 (Admin) (DC deciding whether Art 6 standards of disclosure applicable to judicial review proceedings brought by non-governmental organisation); R (K) v Secretary of State for Defence [2016] EWCA Civ 1149 [2017] 1 WLR 1671 (deciding extent of disclosure 20

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necessary to satisfy Art 6 in claim involving CMP); {17.4.6} (oral evidence/cross-examination and Art 6); {59.5.9} (Art 6: judicial review/appeal (‘full jurisdiction’) suffices). 2.1.13 Judicial review range of subject-matter: some notable illustrations. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 (lawfulness of prorogation of Parliament); R (C) v Secretary of State for Work and Pensions [2017] UKSC 72 [2017] 1 WLR 4127 (transgender rights and data retention); R (Coll) v Secretary of State for Justice [2017] UKSC 40 [2017] 1 WLR 2093 (provision of approved premises for women released from prison); R (Hicks) v Commissioner of Police of the Metropolis [2017] UKSC 9 [2020] AC 256 (police action during royal wedding); R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531 (legal aid residence test); R (Nicklinson) v Ministry of Justice [2014] UKSC 38 [2015] AC 657 (assisted suicide); R (Quila) v SSHD [2011] UKSC 45 [2012] 1 AC 621 (immigration restriction on entry for under-21 spouses); R (Limbuela) v SSHD [2005] UKHL 66 [2006] 1 AC 396 (welfare benefits denial to destitute asylum-seekers); R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 (legal validity of an Act of Parliament); R (Quintavalle) v Human Fertilisation and Embryology Authority [2005] UKHL 28 [2005] 2 AC 561 (selecting embryos for compatible stem cell material). 2.1.14 The 1977 procedural reforms. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §59 (referring to the 1977 reforms “which established judicial review in its modern form”); M v Home Office [1994] 1 AC 377, 417f (describing “[t]he changes made in procedure introduced in 1977 by RSC Ord 53 for judicial review”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 638E-F (“a single simplified procedure”), 657E-F (changes “designed to stop the technical procedural arguments which had too often arisen and thus marred the true administration of justice”); O’Reilly v Mackman [1983] 2 AC 237, 280B (old “procedural disadvantages” removed by the new Order 53 of the Rules of the Supreme Court in 1977); Cocks v Thanet District Council [1983] 2 AC 286, 294F (“safeguards built into the Order 53 procedure which protect from harassment public authorities on whom Parliament has imposed a duty to make public law decisions”); {24.1.7} (the 1977 reforms: unification of remedies); {25.1.8} (damages in judicial review claims: the 1977 breakthrough); {38.1.3} (sufficient interest: a unified test for the various remedies). 2.1.15 The 1981 statutory underpinning. R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §56 (judicial review became “regulated … by the Senior Courts Act 1981”), §59 (“regulated by statutory underpinning”); General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193 at §33 (“Section 31 of the Senior Courts Act 1981 did not establish judicial review as a procedure, but rather regulated it”); M v Home Office [1994] 1 AC 377, 417-418 (describing the 1977 changes as “given statutory authority by primary legislation in s.31 of the Supreme Court Act 1981”, now the Senior Courts Act). 2.1.16 The 1996 CPR procedural reforms. Richards v Worcestershire County Council [2017] EWCA Civ 1998 [2018] PTSR 1563 at §60 (Rupert Jackson LJ: “CPR Part 54 … replaced the former RSC Ord 53. Despite that transmutation, CPR Part 54 retains the essential characteristics of its predecessor. These are a strict time limit for commencement of proceedings, a requirement for permission to proceed, absence of conventional pleadings and a short oral hearing with little or no oral evidence”); R (Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 246 (Admin) at §5 (describing the CPR reforms). 2.1.17 The 2015 procedural reforms. {4.1.1} (highly likely: not substantially different (HL:NSD) test); {18.2.11} (costs and interveners); {18.4.10} (judicial review costs capping orders). 2.1.18 Judicial review: some reports on reform. Administrative Justice: Some Necessary Reforms (JUSTICE/All Souls 1988); Administrative Law: Judicial Review and Statutory Appeals (Law Commission Report No 226, 1994); Woolf Report, Access to Justice (1996) ch  18; Bowman Report of Crown Office Work (2000); Streamlining Judicial Review in a Manner Consistent with the Rule of Law (Bingham Centre, 2014). 21

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2.1.19 The lexicon of judicial review: ancient and modern. The key terminology is (having previously been) as follows: “the Administrative Court” (previously “the Crown Office List”); “claimant” (previously “applicant”); “defendant” (previously “respondent”); “disclosure” (previously “discovery”); “Form N461” (previously “Form 86A”); “mandatory order” (previously “mandamus”); “permission” (previously “leave”: that term is still used by Parliament in the primary legislation); “prohibiting order” (previously “prohibition”); “quashing order” (previously “certiorari”); “remedy” (previously, and often still, “relief”); “request for reconsideration” (“Form 86B”: this form is still used for this purpose). It is helpful to be familiar with the old lexicon when reading the older case law. As for the change of terminology, see Practice Direction (Administrative Court: Establishment) [2000] 1 WLR 1654, 1654H-1655D. As to meaning of particular phrases defined in the CPR, see CPR 54.1(2)(a) (meaning of a “claim for judicial review”); CPR 54.1(2)(e) (meaning of “the judicial review procedure”); CPR 54.1(2)(f) (“interested party”); CPR 54.1(2)(g) (“court”). 2.1.20 The Administrative Court. Practice Direction (Administrative Court: Establishment) [2000] 1 WLR 1654 (renaming the Crown Office List as “the Administrative Court”). 2.1.21 Administrative Court Office (ACO). Administrative Court: Judicial Review Guide (2020 edition) at §1.8 (Administrative Court Office), §1.8.1 (“All documentation must be filed with the ACO and all enquiries on cases must be directed to the ACO”), §12.3 (role of the ACO staff), §12.4 (role of the ACO lawyers), Annex 1 (contact details); CPR PD54D §2.1 (ACO of the High Court at London, Birmingham, Cardiff, Leeds or Manchester); Practice Direction (Administrative Court: Establishment) [2000] 1 WLR 1654 (renaming the Crown Office as “the Administrative Court Office”). 2.1.22 Judge in Charge of the Administrative Court. Administrative Court: Judicial Review Guide (2020 edition) at §1.7.3 (currently Swift J); Practice Direction (Administrative Court: Establishment) [2000] 1 WLR 1654 at 1654H (announcing that “from among the High Court judges nominated to hear cases from the Crown Office List there should be appointed a lead nominated judge with overall responsibility for the speed, efficiency and economy with which the work of the Crown Office List is conducted”); Bovale Ltd v Secretary of State for Communities and Local Government [2009] EWCA Civ 171 [2009] 1 WLR 2274 at §§43, 72 (lead judge of the Administrative Court may give procedural directions of general application, but not so as to depart from an existing rule or practice direction). 2.1.23 Master of the Administrative Court. Administrative Court: Judicial Review Guide (2020 edition) at §1.9.2 (Master of the Administrative Court), §12.5 (functions of the Master). 2.1.24 A specialist judiciary. Wandsworth LBC v A [2000] 1 WLR 1246, 1259C-D (“public law issues have been thought to require the attention of a specialised judiciary”); R (Valentines Homes & Construction Ltd) v HMRC [2010] EWCA Civ 345 at §34 (referring, in the context of issues arising from HMRC policy documents, to the Administrative Court as “the court with expertise in this area”); R v Wicks [1998] AC 92, 106C-D (“Challenges to the lawfulness of an order often raise complex and sophisticated issues, suited for decision by the specialist judges in the Divisional Court”); O’Reilly v Mackman [1983] 2 AC 237, 259D (referring to what “a division of the High Court which might well be called the Administrative Division” being “judges specially versed in administrative law”); Lord Woolf, Protection of the Public – A New Challenge (1989 Hamlyn Lecture) 117 (“I regard it as being of the greatest importance that there should exist among the judiciary a body of judges which has the necessary insight into the process of administration”). 2.1.25 Administrative Court Users’ Group. Administrative Court: Annual Statement 2002/3 [2004] 1 All ER 322 at 325h (describing the Administrative Court Users’ Group as “a useful forum for discussion between court users, the court staff and the nominated judges”). 2.1.26 Treasury Counsel. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §52 (Lord Carnwath, citing Professor Feldman as to “the influence of successive Junior Treasury Counsel in ‘set[ting] the tone for arguments advanced to the courts on behalf of Government Departments” and Sir Stephen Sedley 22

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speaking “of the contribution of Treasury Counsel”), §80 (describing a line of case law as “an interesting example of the influence of successive Junior Treasury Counsel in moulding the law”). 2.1.27 ‘Public interest litigation’. R (Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 246 (Admin) at §18 (“judicial review claims … are the more likely to be matters of genuine public concern than litigation between individuals”); R v Lord Chancellor, ex p Child Poverty Action Group [1999] 1 WLR 347, 353G (Dyson L, describing a “public interest challenge” as having the “essential characteristics … that it raises public law issues which are of general importance, where the [claimant] has no private interest in the outcome of the case”); R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin) [2012] 1 WLR 838 (importance of public funding in context of “public interest judicial review”); cf In re appeals by Governing Body of JFS [2009] UKSC 1 [2009] 1 WLR 2353 at §16 (“The case raises issues of considerable public importance, and it is plainly in the public interest that both sides of the argument should be properly presented”); {22.2.27} (public interest intervention); Public Law Project, Third Party Interventions in Judicial Review: An Action Research Study (PLP, May 2001) ch 2 (“public interest cases”: “Cases which raise issues, beyond any personal interests of the parties in the matter, affecting identifiable sectors of the public or vulnerable groups; seeking to clarify or challenge important questions of law; involving serious matters of public policy or general public concern; and/or concerning systematic default or abuse by a public body”); {38.2.1} (liberal approach to standing); {38.2.13} (standing and the public interest). 2.1.28 Private interest/merits grievance can legitimately drive judicial review. R v Monopolies & Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763, 774B (Sir John Donaldson MR, commenting that the claimant’s “interest may not represent a pure and burning passion to see that public law is rightly administered, but that could be said of most [claimants] for judicial review”); R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166 at §46 (Auld LJ: “judicial review applications by would-be developers or objectors to development in planning cases are by their very nature driven primarily by commercial or private motive rather than a high-minded concern for the public weal”); R v Ogwr Borough Council, ex p Carter Commercial Developments Ltd [1989] 2 PLR 54 58H (“The fact that the real motive for seeking [judicial review] is to advance the [claimant]’s cause is really neither here nor there”); R v Lord Chancellor, ex p Child Poverty Action Group [1999] 1 WLR 347, 353H (“many, indeed most judicial review challenges …, even if they do raise issues of general importance … are cases in which the [claimant] is seeking to protect some private interest of his or her own”); Mass Energy Ltd v Birmingham City Council [1994] Env LR 298, 306 (claim “really a commercial dispute between a successful and an unsuccessful tenderer”); Ridge v Baldwin [1964] AC 40, 68 (claimant’s “real interest in this appeal is to try to save his pension rights”); R (Quintavalle) v Secretary of State for Health [2001] EWHC Admin 918 [2001] 4 All ER 1013 at §§39-40 (even if claimant’s motive were “to force these issues back on to the Parliamentary agenda”, the court “should exercise jurisdiction” where claimant having standing and legitimate concern raised as to a question of statutory interpretation); R v Birmingham City Council, ex p O [1983] 1 AC 578, 592B-C (although dispute “basically one between social workers … and the council”, not detracting from “the importance of the issue”). 2.1.29 Inappropriate uses/handling of judicial review. R (Fudge) v South West Strategic Health Authority [2007] EWCA Civ 803 at §68 (“these proceedings were wholly disproportionate to the limited utility of the result achieved”), §67 (“Public law falls into disrepute if it causes an unnecessary diversion of work and resources”); R v Licensing Authority established under Medicines Act 1968, ex p Smith Kline & French Laboratories Ltd (No 1) [1990] 1 AC 64, 107C-F (judicial review part of a “campaign” intended “to harass and obstruct the licensing authority”); R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 267F-H (“Judicial review is not just a move in an interminable chess tournament”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §53 (Lord Hoffmann’s 23

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distaste of judicial review as “protest by other means”); R v Hammersmith and Fulham LBC, ex p Burkett [2001] Env LR 684 (CA) at §17 (describing “the discovery by commercial lawyers in recent years that wherever central or local government happens to have become involved, judicial review can become a way of conducting a trade war by other means”); R (Noble Organisation) v Thanet District Council [2005] EWCA Civ 782 [2006] Env LR 185 at §68 (expressing “dissatisfaction at the way the availability of the remedy of judicial review can be exploited – some might say abused – as a commercial weapon by rival potential developers”); R (B) v Lambeth LBC [2006] EWHC 639 (Admin) (2006) 9 CCLR 239 at §35 (inappropriate to use judicial review “as a means of monitoring and regulating the performance by a public authority of its public duties and responsibilities”); R v Independent Television Commission, ex p TSW Broadcasting Ltd [1994] 2 LRC 414, 425h-i (“it is not permissible to probe the advice received by the decision maker or to require particulars or administer interrogatories or … cross-examine, in order to discover the existence of a mistake by the decision maker or the advisers of the decision makers”); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 535F (“Lonrho sought … improperly to bully the DTI by threats of judicial review, to intimidate the DTI by insinuations of a political ‘cover up’ and to obtain and exploit observations which, distorted and taken out of context, might lend some support to an application for judicial review. Judicial review is a protection and not a weapon”); R v Secretary of State for Health, ex p London Borough of Hackney 25 April 1994 unreported (“deprecating” claim which was delayed then pursued urgently without notice); R (Assisted Reproduction and Gynaecology Centre) v Human Fertilisation and Embryology Authority [2002] EWCA Civ 20 [2003] 1 FCR 266 at §54 (concern “at the tone of some of the correspondence, which appeared designed to put pressure on the [defendant] to capitulate rather than to reconsider”); R v Greater London Council, ex p Royal Borough of Kensington and Chelsea The Times 7 April 1982 (improper to come to court to seek to make political capital); R (Quintavalle) v Secretary of State for Health [2001] EWHC Admin 918 [2001] 4 All ER 1013 at §§39-40 (even if claimant’s motive “to force these issues back on to the Parliamentary agenda”, court “should exercise jurisdiction” where claimant having standing and legitimate concern raised as to a question of statutory interpretation). 2.1.30 ‘Friendly actions’. R v Legal Aid Board, ex p Bruce [1992] 1 WLR 694, 697H (“Litigation has throughout been conducted on what [counsel] described as a friendly basis, both parties co-operating with one another to obtain a decision as to what is the true position in law”); In re Ashton [1994] 1 AC 9, 19G (central issue non-contentious); Ainsbury v Millington [1987] 1 WLR 379, 381C (“what are called ‘friendly actions’”), considered in R v Holderness Borough Council, ex p James Robert Developments Ltd [1993] 1 PLR 108, 118D; Chertsey Urban District Council v Mixnam’s Properties Ltd [1965] AC 735, 747D (a “friendly action”); Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, 830C-D (RCN “neutral” but simply seeking “clarification and guidance from the court”); Bugg v DPP [1993] QB 473, 490C-D (“friendly actions”); National Assembly for Wales v Cardiff City and County Council [2005] EWHC 974 (QB) [2006] LGR 540 (public authorities’ friendly claim form action obtaining declarations as to vires of agreements transferring assets). 2.1.31 Neutral/non-appearing defendant. London Borough of Islington v Camp (1999) [2004] LGR 58, 66b (Richards J: “in public law cases one of the parties … will sometimes choose not to adopt an adversarial role before the court: for example, [defendant] magistrates may file evidence for the assistance of the court but are rarely represented at a hearing. In those circumstances the court has to rely on an interested party such as the prosecutor or on an amicus to present one side of the case; or it has to do its best in the absence of competing submissions”); R (McAuley) v Coventry Crown Court [2012] EWHC 680 (Admin) [2012] 1 WLR 2766 at §§40-41 (in “the ordinary case”, function of defendant court or tribunal “is not … to contest the proceedings, but to place as much useful evidence as it can before this court in order to enable this court to perform its judicial function”; but here, where claim was about allocation of resources, it is “plainly incumbent upon Her Majesty’s Courts and Tribunals Service in conjunction with the Resident Judge to provide proper evidence”); R (Roberts) v Leicester Crown Court [2020] EWHC 1783 (Admin) (defendant court represented by 24

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counsel at substantive hearing); R (Secretary of State for Defence) v Pensions Appeal Tribunal [2005] EWHC 1775 (Admin) (adjournment to allow PAT’s arguments on important point to be advanced by Counsel or an amicus); R (Oldham Metropolitan Borough Council) v Manchester Crown Court [2005] EWHC 930 (Admin) at §§21-22 (importance of judge’s note of proceedings, supported by an affidavit); R (Latif) v Social Security Commissioners [2002] EWHC 2355 (Admin) at §12 (“save in exceptional circumstances, it is unlikely that the [social security] commissioner will wish to participate actively in the application for judicial review of his decision”); R (Percy) v Corby Magistrates Court [2008] EWHC 607 (Admin) (wrong of magistrates not to respond to letter before claim or claim form); {18.1.14}-{18.1.19} (costs orders against defendant courts and tribunals); {10.4.3} (defendant’s duty of candour: nonappearing defendant). 2.1.32 ‘Self-challenges’/‘own-initiative’ claims. R (Lord Chancellor) v Chief Land Registrar [2005] EWHC 1706 (Admin) [2006] QB 795 at §14 (Lord Chancellor seeking declarations by judicial review, where legality of his scheme had been doubted by the Chief Land Registrar); General Dental Council v Savery [2011] EWHC 3011 (Admin) at §§5, 32 (GDC issuing claim for a declaration of entitlement to disclose records for disciplinary purposes, without naming a defendant but naming the affected dentist and patients as interested parties); R (Carroll) v South Somerset District Council [2008] EWHC 104 (Admin) (council’s leader obtaining judicial review of council’s grant of planning permission which did not match decisionmaking resolution); Oxfordshire County Council v Oxford City Council [2006] UKHL 25 [2006] 2 AC 674 (CPR Part 8 application by registration authority for guidance on issues arising from town green registration inquiry); R v London Transport Executive, ex p Greater London Council [1983] QB 484 (GLC obtaining by judicial review a declaration of legality of the direction it had issued to the LTE); R v Bromley LBC, ex p Lambeth LBC The Times 16 June 1984 (declaration as to legality of own subscriptions); In re Rapier, decd [1988] QB 26 (coroner obtaining judicial review and statutory review to quash own inquest verdict, given new evidence); R (Meredith) v Merthyr Tydfil County Borough Council [2002] EWHC 634 (Admin) at §8 (“the council is in substance, although not in form, both the claimant and the defendant in this action”); Agricultural, Horticultural & Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 WLR 190 (Board seeking declarations as to lawfulness of orders setting it up); Ealing LBC v Race Relations Board [1972] AC 342 (declaration that own housing policy not racially discriminatory); National Trust for Places of Historic Interest or Natural Beauty v Ashbrook [1997] 4 All ER 76 (claim for declarations as to scope of own statutory powers); London Borough of Islington v Camp (1999) [2004] LGR 58 (council seeking declaration as to what it should do); cf R (Chief Constable of Thames Valley Police) v Police Misconduct Panel [2017] EWHC 923 (Admin) [2017] ACD 83 at §§29-31 (Chief Constable sufficiently separate from the panel, to whom he had delegated powers, to have capacity to challenge its decision); R (South Staffordshire and Shropshire Healthcare NHS Foundation Trust) v Managers of St George’s Hospital [2016] EWHC 1196 (Admin) [2017] 1 WLR 1528 (Trust having capacity to challenge decision review panel to whom it had delegated power, which decision it could have taken itself); R (Chief Executive of the Independent Police Complaints Commission) v Independent Police Complaints Commission [2016] EWHC 2993 (Admin) [2017] ACD 7 at §8 (claimant the chief executive of the defendant, each wishing the investigation to be quashed). 2.1.33 In public law, substance matters rather than form: Lord Steyn’s observation. R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §31 (Lord Steyn: “In public law the emphasis should be on substance rather than form”); R v SSHD, ex p Pierson [1998] AC 539, 585D (Lord Steyn: “In public law the emphasis should be on substance rather than form”); SSHD v Khalif Mohamed Abdi [1994] Imm AR 402 (CA), 423 (Steyn LJ: “in administrative law it is not the form that matters but the substance”); R (Jewish Rights Watch Ltd) v Leicester City Council [2018] EWCA Civ 1551 [2019] PTSR 488 at §42 (asking whether compliance with public sector equality duty “as a matter of substance”); R (Joshi) v SSHD [2018] EWCA Civ 1108 at §18 (in approaching decision letter, “the Court looks at the substance and not the form of the communication”); R (Adath Yisroel Burial Society) v HM Senior Coroner for Inner North London [2018] EWHC 25

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1286 (Admin) [2018] 4 Costs LR 749 (ordering costs against coroner taking a non-neutral stance) at §28 (“neutrality is a matter of substance and not form”). R v Monopolies & Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763, 774E (“Good public administration is concerned with substance rather than form”); R v Chief Constable of the Thames Valley Police, ex p Cotton [1990] IRLR 344, 350-351 (“natural justice is not concerned with the observance of technicalities, but with matters of substance”), 351 (“the court is concerned with matters of substance and not mere form”). 2.1.34 Whether a special approach to issue estoppel/res judicata/abuse of process.3 R (DN (Rwanda) v SSHD [2020] UKSC 7 [2020] AC 698 at §§45-57, 60-62, 64 (Lord Carnwath, discussing the authorities and suggesting that issue estoppel and res judicata can operate in public law), §§27-28 (Lord Kerr, for the majority, preferring to express no view); R (PML Accounting Ltd) v HMRC [2018] EWCA Civ 2231 [2019] 1 WLR 2428 at §§61-74 (whether issue estoppel precluding Revenue, in defending judicial review proceedings, from denying tribunal’s jurisdiction); R (Fire Brigade Union) v South Yorkshire Fire and Rescue Authority [2018] EWHC 1229 (Admin) [2018] 3 CMLR 27 at §§86-87 (treating abuse of process, but not issue estoppel or res judicata, as available); Dunlop v Woollahra Municipal Council [1982] AC 158, 165D-H (declarations that planning resolutions invalid enabled tort action in which council ‘issue estopped’ from denying invalidity); Secretary of State for Defence v Percy [1999] 1 All ER 732, 742b-d (MoD bound to have regard to decision of competent court holding that its bylaws invalid, even though not a party to those proceedings); R v Secretary of State for Trade and Industry, ex p Greenpeace [2000] Env LR 221, 259 (claimant entitled to bring same challenge to subsequent round of decisions, albeit previous challenge to previous decisions dismissed for delay); R v Life Assurance and Unit Trust Regulatory Organisation Ltd, ex p Tee (1995) 7 Admin LR 289, 309D-310G, 314G (refusing to characterise as ‘an abuse of process’ claimant’s pursuit of a point not relied upon in earlier proceedings (ex p Ross [1993] QB 17) by related company); R v Secretary of State for Transport, ex p Richmond Upon Thames LBC [1995] Env LR 390, 395-396 (principle “that there should be an end to litigation … has to be approached with caution in the public law field”); {54.1.21} (estoppel and public authorities: available in principle); {54.1.22} (estoppel and public authorities: a cautious approach).

2.2 Upper Tribunal judicial review (UTJR). Since 2007 the Upper Tribunal has taken on, in a regulated way, prescribed aspects of the judicial review jurisdiction previously exercised by the High Court. 2.2.1 UTJR: overview. Administrative Court: Judicial Review Guide (2020 edition) at §5.5, Annex 1 (contact details); Annex 7 (judicial review in the Upper Tribunal); R (Ashraf) v SSHD [2013] EWHC 4028 (Admin) at §34 (Cranston J: “The underlying purpose of the changes is to reduce pressure on the Administrative Court so that it can properly consider the most serious cases, and to ensure that the more routine immigration cases, including challenges to removal directions, are determined by the specialist judges in the Upper Tribunal”); Hutton v Criminal Injuries Compensation Authority [2016] EWCA Civ 1305 [2017] ACD 20 at §§58(ii), 59 (importance of UT adhering in UTJR to supervisory, not substitutionary, jurisdiction). The applicable rules are the Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended), especially Part 4 (rules 27-33A). 2.2.2 UTJR: Pre-Action Procedure. Judicial Review Pre-Action Protocol §8 (“The Upper Tribunal Immigration and Asylum Chamber (UTIAC) has jurisdiction in respect of judicial review proceedings in relation to most immigration decisions. The President of UTIAC has issued a Practice Statement to the effect that, in judicial review proceedings in UTIAC,

3The

equivalent paragraph in a previous edition was relied on in Human Fertilisation and Embryology Authority v Amicus Healthcare Ltd [2005] EWHC 1092 (QB) at §31 (Walker J); Guardians of Paku Bay Association Inc v Waikato Regional Council [2011] NZHC 1013 [2012] 1 NZLR 271 (High Court of New Zealand) at §61 (Wylie J); and LO (Jordan) v SSHD [2011] EWCA Civ 164 at §16 (Maurice Kay LJ).

26

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the parties will be expected to follow this protocol, where appropriate, as they would for proceedings in the High Court”). 2.2.3 UTJR: 2007 Act s.15. Tribunals, Courts and Enforcement Act 2007 s.15 (“Upper Tribunal’s ‘judicial review’ jurisdiction. (1) The Upper Tribunal has power, in cases arising under the law of England and Wales …, to grant the following kinds of relief – (a) a mandatory order; (b) a prohibiting order; (c) a quashing order; (d) a declaration; (e) an injunction. (2) The power under subsection (1) may be exercised by the Upper Tribunal if – (a) certain conditions are met (see section 18), or (b) the tribunal is authorised to proceed even though not all of those conditions are met (see section 19(3) and (4)). (3) Relief under subsection (1) granted by the Upper Tribunal – (a) has the same effect as the corresponding relief granted by the High Court on an application for judicial review, and (b) is enforceable as if it were relief granted by the High Court on an application for judicial review. (4) In deciding whether to grant relief under subsection (1)(a), (b) or (c), the Upper Tribunal must apply the principles that the High Court would apply in deciding whether to grant that relief on an application for judicial review. (5) In deciding whether to grant relief under subsection (1)(d) or (e), the Upper Tribunal must – (a) in cases arising under the law of England and Wales apply the principles that the High Court would apply in deciding whether to grant that relief under section 31(2) of the [Senior Courts] Act 1981 on an application for judicial review …”). 2.2.4 UTJR: monetary remedies. Tribunals, Courts and Enforcement Act 2007 s.16(6) (“The tribunal may award to the applicant damages, restitution or the recovery of a sum due if – (a) the application includes a claim for such an award arising from any matter to which the application relates, and (b) the tribunal is satisfied that such an award would have been made by the High Court if the claim had been made in an action begun in the High Court by the applicant at the time of making the application”), s.16(7) (“An award under subsection (6) may be enforced as if it were an award of the High Court”). 2.2.5 UTJR: quashing and remittal. Tribunals, Courts and Enforcement Act 2007 s.17 (“(1) If the Upper Tribunal makes a quashing order under section 15(1)(c) in respect of a decision, it may in addition – (a) remit the matter concerned to the court, tribunal or authority that made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the Upper Tribunal …”). 2.2.6 UTJR: substitutionary remedy. Tribunals, Courts and Enforcement Act 2007 s.17 (“(1) If the Upper Tribunal makes a quashing order under section 15(1)(c) in respect of a decision, it may in addition – … (b) substitute its own decision for the decision in question. (2) The power conferred by subsection (1)(b) is exercisable only if – (a) the decision in question was made by a court or tribunal, (b) the decision is quashed on the ground that there has been an error of law, and (c) without the error, there would have been only one decision that the court or tribunal could have reached. (3) Unless the Upper Tribunal otherwise directs, a decision substituted by it under subsection (1)(b) has effect as if it were a decision of the relevant court or tribunal”); Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1175 at §20 (UT finding a material error of law by FTT can substitute a different outcome if it is “the only one open to the FTT”); {24.4.2} (substitutionary remedy: Court’s power of retaking the decision). 2.2.7 UTJR: permission for judicial review. Tribunals, Courts and Enforcement Act 2007 s.16 (“(1) This section applies in relation to an application to the Upper Tribunal for relief under section 15(1). (2) The application may be made only if permission (or, in a case arising under the law of Northern Ireland, leave) to make it has been obtained from the tribunal. (3) The tribunal may not grant permission (or leave) to make the application unless it considers that the applicant has a sufficient interest in the matter to which the application relates”); R (Kigen) v SSHD [2015] EWCA Civ 1286 [2016] 1 WLR 723 (approach to late request for reconsideration of permission refused on the papers). 2.2.8 UTJR: permission/case-management powers. R (Singh) v SSHD [2019] EWCA Civ 1014 [2019] Imm AR 1275 at §17, §19 (“the Upper Tribunal has the same powers in dealing 27

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with [permission for judicial review] as would the High Court”); R (Spahiu) v SSHD [2018] EWCA Civ 2604 [2019] 1 WLR 1297 at §35 (amendment of judicial review grounds, postservice, needing permission), §56 (UT having power to review case-management decisions in judicial review, including a paper refusal to give permission to amend grounds). 2.2.9 UTJR: CA powers on permission appeal. Tribunals, Courts and Enforcement Act 2007 s.16(8) (“Where – (a) the tribunal refuses to grant permission … to apply for relief under section 15(1), (b) the applicant appeals against that refusal, and (c) the Court of Appeal grants the permission …, the Court of Appeal may go on to decide the application for relief under section 15(1)”): {23.1.17} (CA reserving substantive hearing to itself). 2.2.10 UTJR: delay. Tribunals, Courts and Enforcement Act 2007 s.16 (“(4) Subsection (5) applies where the tribunal considers – (a) that there has been undue delay in making the application, and (b) that granting the relief sought on the application would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. (5) The tribunal may – (a) refuse to grant permission (or leave) for the making of the application; (b) refuse to grant any relief sought on the application … (9) Subsections (4) and (5) do not prevent Tribunal Procedure Rules from limiting the time within which applications may be made”). 2.2.11 HL:NSD test in UTJR. Tribunals, Courts and Enforcement Act 2007 s.15 (“(5A) In cases arising under the law of England and Wales, subsections (2A) and (2B) of section 31 of the Senior Courts Act 1981 apply to the Upper Tribunal when deciding whether to grant relief under subsection (1) as they apply to the High Court when deciding whether to grant relief on an application for judicial review. (5B) If the tribunal grants relief in reliance on section 31(2B) of the Senior Courts Act 1981 as applied by subsection (5A), the tribunal must certify that the condition in section 31(2B) as so applied is satisfied”), s.16 (“(3C) In cases arising under the law of England and Wales, when considering whether to grant permission to make the application, the tribunal – (a) may of its own initiative consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the respondent asks it to do so. (3D) In subsection (3C) ‘the conduct complained of’ means the conduct (or alleged conduct) of the respondent that the applicant claims justifies the tribunal in granting relief. (3E) If, on considering the question mentioned in subsection (3C)(a) and (b), it appears to the tribunal to be highly likely that the outcome for the applicant would not have been substantially different, the tribunal must refuse to grant permission. (3F) The tribunal may disregard the requirement in subsection (3E) if it considers that it is appropriate to do so for reasons of exceptional public interest. (3G) If the tribunal grants permission in reliance on subsection (3F), the tribunal must certify that the condition in subsection (3F) is satisfied. … (6A) In cases arising under the law of England and Wales, subsections (2A) and (2B of section 31 of the Senior Courts Act 1981 apply to the Upper Tribunal as regards the making of an award under subsection (6) as they apply to the High Court as regards the making of an award under section 31(4) of the Senior Courts Act 1981. (6B) If the tribunal makes an award in reliance on section 31(2B) of the Senior Courts Act 1981 as applied by subsection (6A), the tribunal must certify that the condition in section 31(2B) as so applied is satisfied”); {4.1} (highly likely: not substantially different (HL:NSD)). 2.2.12 UTJR extent of jurisdiction: s.18. Tribunals, Courts and Enforcement Act 2007 s.18(1)-(6) (“Limits of jurisdiction under section 15(1). (1) This section applies where an application made to the Upper Tribunal seeks (whether or not alone) – (a) relief under section 15(1), or (b) permission … to apply for relief under section 15(1). (2) If Conditions 1 to 4 are met, the tribunal has the function of deciding the application. (3) If the tribunal does not have the function of deciding the application, it must by order transfer the application to the High Court. (4) Condition 1 is that the application does not seek anything other than – (a) relief under section 15(1); (b) permission … to apply for relief under section 15(1); (c) an award under section 16(6); (d) interest; (e) costs. (5) Condition 2 is that the application does not call into question anything done by the Crown Court. (6) Condition 3 is that the 28

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application falls within a class specified for the purposes of this subsection in a direction given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005…”). 2.2.13 Transfer from High Court to UT. Senior Courts Act 1981 s.31A (“Transfer of judicial review applications to Upper Tribunal. (1) This section applies where an application is made to the High Court – (a) for judicial review, or (b) for permission to apply for judicial review. (2) If Conditions 1, 2 and 3 are met, the High Court must by order transfer the application to the Upper Tribunal. (3) If Conditions 1 and 2 are met, but Condition 3 is not, the High Court may by order transfer the application to the Upper Tribunal if it appears to the High Court to be just and convenient to do so. (4) Condition 1 is that the application does not seek anything other than – (a) relief under section 31(1)(a) and (b); (b) permission to apply for relief under section 31(1)(a) and (b); (c) an award under section 31(4); (d) interest; (e) costs. (5) Condition 2 is that the application does not call into question anything done by the Crown Court. (6) Condition 3 is that the application falls within a class specified under section 18(6) of the Tribunals, Courts and Enforcement Act 2007”); Tribunals, Courts and Enforcement Act 2007 s.19(3)-(4) (“(3) Where an application is transferred to the Upper Tribunal under section 31A of the [Senior Courts] Act 1981 … (transfer from the High Court of judicial review applications) – (a) the application is to be treated for all purposes as if it – (i) had been made to the tribunal, and (ii) sought things corresponding to those sought from the High Court, (b) the tribunal has the function of deciding the application, even if it does not fall within a class specified under section 18(6), and (c) any steps taken, permission given, leave given or orders made by the High Court in relation to the application are to be treated as taken, given or made by the tribunal. (4) Where – (a) an application for permission is transferred to the Upper Tribunal under section 31A of the [Senior Courts] Act 1981 and the tribunal grants permission …, the tribunal has the function of deciding any subsequent application brought under the permission …, even if the subsequent application does not fall within a class specified under section 18(6)”). 2.2.14 UTJR: immigration/asylum matters. Administrative Court: Judicial Review Guide (2020 edition) at §5.5.2 (“The Lord Chief Justice’s Direction requires that any application for permission to apply for judicial review and any substantive application for judicial review that calls into question the following be started in UTIAC (or if started in the Administrative Court be transferred to UTIAC). [1] A decision made under the Immigration Acts or any instrument having effect, whether wholly or partly, under an enactment within the Immigration Acts, or otherwise relating to leave to enter or remain in the UK …; or [2] A decision of the Immigration and Asylum Chamber of the First-tier Tribunal, from which no appeal lies to the Upper Tribunal”), §5.5.3 (“All other immigration and asylum matters remain within the jurisdiction of the Administrative Court. Further, even where an application comes within the classes of claim outlined at paragraph 5.5.2 above, an application which comprises or includes any of the following classes must be brought in the Administrative Court: [1] A challenge to the validity of primary or subordinate legislation (or of immigration rules); [2] A challenge to the lawfulness of detention; [3] A challenge to a decision concerning inclusion on the register of licensed Sponsors maintained by the UKBA; [4] A challenge to a decision which determines British citizenship; [5] A challenge to a decision relating to asylum support or accommodation; [6] A challenge to the decision of the Upper Tribunal; [7] A challenge to a decision of the Special Immigration Appeals Commission; [8] An application for a declaration of incompatibility under the s.4 of the Human Rights Act 1998; and [9] A challenge to a decision which is certified (or otherwise stated in writing) to have been taken by the Secretary of State wholly or partly in reliance on information which it is considered should not be made public in the interests of national security”), §5.5.4 (“Challenges to decisions made under the National Referral Mechanism for identifying victims of human trafficking or modern slavery are not immigration decisions. They fall within the jurisdiction of the Administrative Court”), Annex 7. 2.2.15 UTJR: judicial review of FTT decisions. Administrative Court: Judicial Review Guide (2020 edition) at §5.6.2 (“The Lord Chief Justice’s Direction requires filing in, or mandatory transfer to, the UT(AAC) of any application for permission to apply for judicial review and 29

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any substantive application for judicial review that calls into question the following: Any decision of the First-tier Tribunal on an appeal made in the exercise of a right conferred by the Criminal Injuries Compensation Scheme in compliance with s.5(1) of the Criminal Injuries Compensation Act 1995 (appeals against decisions on reviews); and Decisions of the First-tier Tribunal where there is no right of appeal to the Upper Tribunal and that decision is not an excluded decision within paragraph (b), (c), or (f) of s.11(5) of the 2007 Act (appeals against national security certificates)”), §5.6.3 (“The direction does not have effect where an application seeks a declaration of incompatibility. In that case the Administrative Court retains the jurisdiction to hear the claim”); R (Jones) v First-tier Tribunal [2013] UKSC 19 [2013] 2 AC 48 at §§5, 30-31 (claim for judicial review of FTT’s decision in a CICS appeal). 2.2.16 Transfer to the UT: illustrations. R (FZ) v Croydon LBC [2011] EWCA Civ 59 [2011] PTSR 748 at §32 (transfer to UT of age assessment judicial review claim involving disputed precedent fact); R (AS) v Croydon LBC [2011] EWHC 2091 (Admin) at §25 (age assessments generally transferred to the UT); R (J) v Croydon LBC [2011] EWHC 3970 (interpretation of the statutory condition requiring the claim does not call into question any decision under the Immigration Acts); R (Independent Schools Council) v Charity Commission [2011] UKUT 421 (TCC) [2012] Ch 214 at §2; JH (Palestinian Territories) v Upper Tribunal [2020] EWCA Civ 919 (on successful Cart claim, High Court not having jurisdiction to direct that costs of the judicial review be treated as ‘costs in the appeal before the UT’), §32 (but “this jurisdictional issue can be addressed by the transfer of the JR proceedings to the UT in relation to the application for costs. … The UT judge may then consider the costs of the CPR54.7A proceedings separately from those in relation to the substantive appeal”). 2.2.17 UTJR of the FTT is an original jurisdiction. R (Nwankwo) v SSHD [2018] EWCA Civ 5 [2018] 1 WLR 2641 at §§30, 42 (on judicial review of the FTT, the UT is exercising an original jurisdiction not an appellate jurisdiction, so CA does not apply ‘second appeal’ test when considering permission to appeal). 2.2.18 Abuse of process to file in High Court to avoid UTJR. R (Ashraf) v SSHD [2013] EWHC 4028 (Admin) at §31 (Cranston J: “it could well be an abuse of process to file a judicial review in the Administrative Court, on the ground that it falls within the detention exception … when there is no obvious distinct merit to that aspect of the claim”), §35 (“to  lodge a challenge to removal in the Administrative Court, including a ground going to the lawfulness of detention, when there is no obvious distinct merit in that aspect, could well constitute an abuse of process by the lawyers engaged in the case. The case can be transferred to the Upper Tribunal under section 31A(3) of the Senior Courts Act 1981 and, when possible within the time constraints, this will generally be done. The abuse of process itself can be addressed within the framework established in R (Hamid) v SSHD [2012] EWHC 3070 (Admin) and the cases following it. Cost penalties are another possibility: eg. CPR 44.3(4)(a)”); Administrative Court: Judicial Review Guide (2020 edition) at §5.5.6.

2.3 Cart claims. A special streamlined procedure applies to judicial review claims which impugn the Upper Tribunal’s decision refusing permission to appeal against a decision of the First-tier Tribunal, a situation involving modified review in accordance with the decision of the Supreme Court in Cart. 2.3.1 Cart claim. R (Faqiri) v Upper Tribunal [2019] EWCA Civ 151 [2019] 1 WLR 4497 at §1 (Hickinbottom LJ, explaining that “a Cart claim” is a claim for “judicial review of a refusal by the Upper Tribunal of permission to appeal a determination of the First-tier Tribunal”, after R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663); R (Mahmood) v Upper Tribunal [2020] EWCA Civ 717 at §21 (example of a Cart claim considered in the CA); R (PA (Iran)) v Upper Tribunal [2018] EWCA Civ 2495 (example of Cart claim refused permission for judicial review in the High Court but which succeeded substantively in the CA); {32.3.19} (Cart claims: judicial review of UT’s refusal of permission to appeal). 2.3.2 Cart claim: modified procedure. Administrative Court: Judicial Review Guide (2020 edition) at §8.7 (procedure where the UT is the defendant); CPR 54.7A (“(1) This rule 30

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applies where an application is made, following refusal by the Upper Tribunal of permission to appeal against a decision of the First Tier Tribunal, for judicial review – (a) of the decision of the Upper Tribunal refusing permission to appeal; or (b) which relates to the decision of the First Tier Tribunal which was the subject of the application for permission to appeal”); JH (Palestinian Territories) v Upper Tribunal [2020] EWCA Civ 919 at §12 (“a modified procedure”). 2.3.3 Cart claim: 16-day rule. CPR 54.7A(3) (“The claim form and the supporting documents required by paragraph (4) must be filed no later than 16 days after the date on which notice of the Upper Tribunal’s decision was sent to the applicant”); Administrative Court: Judicial Review Guide (2020 edition) at §5.4.3.5. 2.3.4 Cart claim: prescribed contents of the claim. CPR 54.7A(2) (“(2) Where this rule applies – (a) the application may not include any other claim, whether against the Upper Tribunal or not; and (b) any such other claim must be the subject of a separate application”); CPR PD54A §19.1 (“A person who makes an application for permission to apply for judicial review of the decision of the Upper Tribunal refusing permission to appeal must file a claim form which must – (a) state on its face that the application is made under Rule 54.7A; (b) set out succinctly the grounds on which it is argued that the criteria in Rule 54.7A(7) are met; and (c) be accompanied by the supporting documents required under Rule 54.7A(4)”). 2.3.5 Cart claim: prescribed claim documents. CPR 54.7A(3)-(4) (“(3) The claim form and the supporting documents required by paragraph (4) must be filed no later than 16 days after the date on which notice of the Upper Tribunal’s decision was sent to the applicant. (4) The supporting documents are – (a) the decision of the Upper Tribunal to which the application relates, and any document giving reasons for the decision; (b) the grounds of appeal to the Upper Tribunal and any documents which were sent with them; (c) the decision of the First Tier Tribunal, the application to that Tribunal for permission to appeal and its reasons for refusing permission; and (d) any other documents essential to the claim”). CPR PD54A §19.1 (“A person who makes an application for permission to apply for judicial review of the decision of the Upper Tribunal refusing permission to appeal must file a claim form which must – (a) state on its face that the application is made under Rule 54.7A; (b) set out succinctly the grounds on which it is argued that the criteria in Rule 54.7A(7) are met; and (c) be accompanied by the supporting documents required under Rule 54.7A(4)”). 2.3.6 Cart claim: service of the claim. CPR 54.7A(5) (“The claim form and supporting documents must be served on the Upper Tribunal and any other interested party no later than 7 days after the date of issue”). 2.3.7 Cart claim: AOS. CPR 54.7A(6) (“The Upper Tribunal and any person served with the claim form who wishes to take part in the proceedings for judicial review must, no later than 21 days after service of the claim form, file and serve on the applicant and any other party an acknowledgment of service in the relevant practice form”). 2.3.8 Cart claim: permission for judicial review (PJR) test. CPR 54.7A(7) (“The court will give permission to proceed only if it considers (a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and (b) that either – (i) the claim raises an important point of principle or practice; or (ii) there is some other compelling reason to hear it”). 2.3.9 Cart claim: no right of oral renewal of permission. CPR 54.7A(8) (“If the application for permission is refused on paper without an oral hearing, rule 54.12(3) (request for reconsideration at a hearing) does not apply”). 2.3.10 Cart claim: defendant/interested party letter of response to PJR (14 days). CPR 54.7A(9) (“If permission to apply for judicial review is granted – (a) if the Upper Tribunal or any interested party wishes there to be a hearing of the substantive application, it must make its request for such a hearing no later than 14 days after service of the order 31

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granting permission”); CPR PD54A §19.2 (“If the Upper Tribunal or any interested party wishes there to be a hearing of the substantive application under Rule 54.7A(9), it must make its request in writing (by letter copied to the claimant) for such a hearing no later than 14 days after service of the order granting permission”). 2.3.11 Cart claim: disposal on the papers. CPR 54.7A(9)(b), (10) (“If permission to apply for judicial review is granted – (a) if the Upper Tribunal or any interested party wishes there to be a hearing of the substantive application, it must make its request for such a hearing no later than 14 days after service of the order granting permission; and (b) if no request for a hearing is made within that period, the court will make a final order quashing the refusal of permission without a further hearing. (10) The power to make a final order under paragraph (9)(b) may be exercised by the Master of the Crown Office or a Master of the Administrative Court”).

2.4 Planning Court claims. Judicial review and statutory review claims which involve planning (and other prescribed) matters engage the supervisory jurisdiction of the Administrative Court but are the subject of special procedural rules and are dealt with by judges sitting in the Planning Court. 2.4.1 Planning Court claims: CPR 54.21-54.23. CPR 54.21 (“(1) This Section applies to Planning Court claims. (2) In this Section, ‘Planning Court claim’ means a judicial review or statutory challenge which – (a) involves any of the following matters – (i) planning permission, other development consents, the enforcement of planning control and the enforcement of other statutory schemes; (ii) applications under the Transport and Works Act 1992; (iii) wayleaves; (iv) highways and other rights of way; (v) compulsory purchase orders; (vi) village greens; (vii) European Union environmental legislation and domestic transpositions, including assessments for development consents, habitats, waste and pollution control; (viii) national, regional or other planning policy documents, statutory or otherwise; or (ix) any other matter the judge appointed under rule 54.22(2) considers appropriate; and (b) has been issued or transferred to the Planning Court. (Part 30 (Transfer) applies to transfers to and from the Planning Court.)”), CPR 54.22 (“(1) The Planning Court claims form a specialist list. (2) A judge nominated by the President of the Queen’s Bench Division will be in charge of the Planning Court specialist list and will be known as the Planning Liaison Judge. (3) The President of the Queen’s Bench Division will be responsible for the nomination of specialist planning judges to deal with Planning Court claims which are significant within the meaning of Practice Direction 54E, and of other judges to deal with other Planning Court claims”), CPR 54.23 (“These Rules and their practice directions will apply to Planning Court claims unless this section or a practice direction provides otherwise”). See eg. R (Clientearth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin) at §98 (“judicial review” under Planning Act 2008 s.118: legal challenge relating to development consent). 2.4.2 Judicial review principles applicable in planning statutory review cases. Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54 [2019] PTSR 1406 at §44 (“principles of public law” applicable in planning statutory review cases); Sykes v Secretary of State for Housing, Communities and Local Government [2020] EWHC 112 (Admin) at §14 (“general principles of judicial review are applicable”). 2.4.3 Planning judicial review: 6-week time limit. {26.1.2} 2.4.4 Planning Court claims: CPR PD54E. See CPR 54.24 (“Practice Direction 54E makes further provision about Planning Court claims, in particular about the timescales for determining such claims”); CPR PD54E. 2.4.5 Planning Court claims: PD8C. See CPR PD8C §1 (“General provisions applicable to planning statutory review”), §§2-4 (claim documents), §§5-6 (acknowledgment of service), §§7-10 (permission stage), §§12-18 (substantive stage).

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2.5 Other similar supervisory jurisdictions. There are many other areas where courts and tribunals have a similar supervisory jurisdiction. These may mirror or borrow from the (dynamic) principles and case law of judicial review, often by reason of a statutory provision explicitly requiring the application of judicial review principles. 2.5.1 Judicial review principles in statutory review/statutory appeal. QX v SSHD [2020] EWHC 1221 (Admin) [2020] ACD 83 at §26 (judicial review principles applicable to statutory review of temporary exclusion order); Anand v Royal Borough of Kensington and Chelsea [2019] EWHC 2964 (Admin) at §45 (regulations providing for “statutory review, on judicial review grounds”); Summers v Richmond upon Thames LBC [2018] EWHC 782 (Admin) [2018] 1 WLR 4729 at §32 (statutory review on statutory grounds that “the local authority did not have power to make the order”, or that a “requirement under this Chapter was not complied with”, apt to “embrace challenges to … legality or rationality” and “procedural impropriety”); Viasat UK Ltd v Office of Communications [2020] EWCA Civ 624 at §16 (statutory appeal requiring application of judicial review principles “but taking account of the ‘merits’”); AL v SSHD [2018] EWCA Civ 278 at §11 (Prevention of Terrorism Act 2005 s.3(11) providing that High Court to apply judicial review principles in control order cases); Charities Act 2011 s.322 (application to Upper Tribunal for review), s.321(4) (“In determining such an application the Tribunal must apply the principles which would be applied by the High Court on an application for judicial review”). 2.5.2 ‘Point of law’/‘error of law’ jurisdiction includes all judicial review grounds. James v Hertsmere Borough Council [2020] EWCA Civ 489 at §31 (statutory appeal in homelessness cases to the county court on a “point of law” extend to “the full range of issues that would otherwise be the subject of an application to the High Court for judicial review”, not restricted to errors “intrinsic to the making of the decision”); Adesotu v Lewisham LBC [2019] EWCA Civ 1405 [2019] 1 WLR 5637 at §15 (ditto, applying Begum v Tower Hamlets LBC [2003] UKHL 5 [2003] 2 AC 430 at §7 also §§17, 98), §16 (but s.204 appeal not a “claim for judicial review” for the purposes of the Equality Act 2010 s.113(3)(a)); Canterbury City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin) at §86 (“error of law” statutory review jurisdiction includes public law unreasonableness); Mohamoud v Birmingham City Council [2014] EWCA Civ 227 [2015] PTSR 17 at §23; RB (Algeria) v SSHD [2009] UKHL 10 [2010] 2 AC 110 at §§62, 73; E v SSHD [2004] EWCA Civ 49 [2004] QB 1044 (immigration appeal on basis of “error of law” reflecting all judicial review grounds), §42 (“it has become a generally safe working rule that the substantive grounds for intervention are identical”); {45.4.2} (all grounds as ultra vires/ unlawfulness/error of law). 2.5.3 Procurement claims in the TCC. Administrative Court: Judicial Review Guide (2020 edition) at §5.7 (parallel procurement judicial review: transfer to the TCC); Public Contract Regulations 2015; {26.1.3} (procurement judicial review: special time limit); Amey Highways Ltd v West Sussex County Council [2018] EWHC 1976 (TCC) [2019] PTSR 455. 2.5.4 County Court judicial review. Housing Act 1996 s.204A(4) (homelessness appeal against a local authority’s review decision, in which the county court “shall apply the principles applied by the High Court on an application for judicial review”); Poshteh v Kensington and Chelsea Royal LBC [2017] UKSC 36 [2017] AC 624 at §42 (county court not subject to “the highly restrictive approach” to review of factual matters, as had been developed previously in homelessness judicial review cases). 2.5.5 Competition Appeal Tribunal judicial review. See eg Enterprise Act 2002 s.120(4) (merger decisions) and s.179 (market investigation decisions), s.120(4) and s.179(4) (CAT required to “apply the same principles as would be applied by a court on an application for judicial review”). 2.5.6 Judicial review in other tribunals. Regulation of Investigatory Powers Act 2000 s.67(2) (Investigatory Powers Tribunal hearing proceedings as to Human Rights Act 33

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compatibility of actions of intelligence services: “they shall apply the same principles for making their determination as would be applied by a court on an application for judicial review”); Equality Act 2006 Sch 2 para 14(3)(d) (Commission for Equality and Human Rights to determine proceedings under para 14 “in accordance with the principles that would be applied by a court on an application for judicial review”). 2.5.7 Public law principles outside CPR 54. {27.2}

2.6 Impact of judicial review. A successful judicial review claim does not necessarily guarantee a favourable ultimate outcome. Typically, it means the matter returns to the public authority decision-maker for reconsideration in a manner and on a basis complying with public law standards. This may or may not produce a different outcome and claimants need to understand this from the start. Sometimes the outcome and the Court’s judgment mean that a particular course of action is precluded (as when it has been held to be unlawful or unreasonable) or required (as where it alone has been held to be lawful or reasonable). A successful judicial review can be a step towards a monetary claim. Whatever the result, a party may find reassurance or vindication in comments made to or by the Court. 2.6.1 Quash and remit: the rules. Senior Courts Act 1981 s.31(5)(a) (“If, on an application for judicial review, the High Court quashes the decision to which the application relates, it may in addition (a) remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court”); CPR 54.19(2)(a) (“The court may (a)(i) remit the matter to the decisionmaker and (ii) direct it to reconsider the matter and reach a decision in accordance with the judgment of the court …”); R (Tesfay) v SSHD [2016] EWCA Civ 415 [2016] 1 WLR 4853 at §57 (Lloyd-Jones LJ: “Proceedings for judicial review are brought by persons dissatisfied with decisions of public bodies. However, the courts are not the decision-makers and often in public law the most that can be achieved is an order that the decision-maker reconsider on a correct legal basis. That may not lead to ultimate victory for the claimant because the new decision may be a lawful decision against the interests of the claimant. Nevertheless, to achieve an order for reconsideration will often be a substantial achievement”). 2.6.2 Remittal means consideration afresh. R (FNM) v DPP [2020] EWHC 870 (Admin) [2020] 2 Cr App R 17 at §51 (decision quashed and remitted for “fresh decision” considering complainant’s representations); R (Davison) v Elmbridge Borough Council [2019] EWHC 1409 (Admin) at §48 (after a quashing order, “the decision maker must start the decision making afresh, with a clean sheet”); R (WEN) v SSHD [2019] EWHC 2104 (Admin) at §74 (“the claimant is entitled to know that her specific circumstance has been critically and properly analysed”); Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 2183 (Admin) at §24 (remittal so that the “process [is] taken back to the stage where the error of law occurred”). 2.6.3 Remittal means appropriate body decides. R (Talpada) v SSHD [2018] EWCA Civ 841 at §64 (Singh LJ, describing the “role of the courts” as “limited”, which is “why the remedy which will usually be granted when an application for judicial review succeeds is a quashing order or some other remedy which has the result that the matter is remitted to the public authority concerned”); R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394 at §65 (remittal to Crown Court for reconsideration); R (Forge Care Home Ltd) v Cardiff and Vale University Health Board [2017] UKSC 56 [2017] PTSR 1140 at §46 (decisions quashed and to be retaken in light of the Court’s guidance); R (C) v Chief Constable of Greater Manchester [2011] EWCA Civ 175 [2011] 2 FLR 383 at §16 (quashing and remitting “for two reasons. First, the primary decision-maker under the scheme is the [defendant]. Secondly, any fresh decision would be on the material then available to him, which might not be the same as the material at the time when the original flawed decision was made”); General Medical Council v Spackman [1943] AC 627, 647 (Lord Wright: “The council ought to take up the inquiry again. I do not seek in any way to 34

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suggest or forecast how they will hold it. The discretion and responsibility for the procedure are theirs”). 2.6.4 Remittal: whether to a differently constituted decision-maker. HCA International Ltd v Competition and Markets Authority [2015] EWCA Civ 492 [2015] 1 WLR 4341 at §1 (Vos LJ, addressing “the circumstances in which a court or tribunal quashing a decision by an administrative body should remit that decision to be remade by a freshly constituted decision-making body”), §68 (“The principle … must be that remission will be made to the same decision-maker unless that would cause reasonably perceived unfairness to the affected parties or would damage public confidence in the decision-making process. The basis on which the court will approach these two interlocking concepts … may depend heavily on the circumstances”); R (Chief Constable of West Midlands Police) v Panel Chair, Police Misconduct Panel [2020] EWHC 1400 (Admin) [2020] ACD 88 at §67 (Eady J: “Where … findings of irrationality have been made … real difficulties inevitably arise in ensuring confidence in the process if this is not remitted to a freshly-constituted Panel”); R (FNM) v DPP [2020] EWHC 870 (Admin) [2020] 2 Cr App R 17 at §52 (remittal for “a fresh decision … to be taken by a member of the [Appeals and Review Unit] not previously involved with the case”); R (Ngole) v University of Sheffield [2019] EWCA Civ 1127 [2019] ELR 443 at §146 (remitted for new hearing before differently constituted committee); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §164 (remittal to a differently constituted parole board); Trail Riders Fellowship v Secretary of State for the Environment, Food and Rural Affairs [2017] EWHC 1866 (Admin) [2018] PTSR 15 at §34 (“if this matter is further considered by the same or another inspector, she or he must clearly have regard to the contents of this judgment”); Southall v General Medical Council [2010] EWCA Civ 484 at §8 (“fresh minds should be brought to the issues in the case”); R (Pounder) v HM Coroner for North and South Districts of Durham and Darlington [2010] EWHC 328 (Admin) at §4 (inquest verdict had previously been quashed on judicial review, without a direction for a different coroner), §32 (nevertheless, in the circumstances the previous coroner should have agreed to recuse himself from hearing fresh inquest). 2.6.5 Recognising a potential repeat outcome. Trail Riders Fellowship v Wiltshire County Council [2018] EWHC 3600 (Admin) at §46 (“Subject to compliance with the requirements of the [legislation], it will be open to the Council to remake an order to the [same] effect”); R (SB) v NHS England [2017] EWHC 2000 (Admin) [2018] PTSR 576 at §105 (“The fact that this claim for judicial review has succeeded does not mean that there will necessarily be a favourable outcome”); R (JS) (Sri Lanka) v SSHD [2010] UKSC 15 [2011] 1 AC 184 at §27 (quashing and remitting, since the reasoning adopted in the decision letter was insupportable, although realistically SSHD might not properly have made any different decision); AttorneyGeneral of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 639F (quashing order “entirely without prejudice to the making of a fresh removal order … after a fair inquiry has been held at which the [claimant] has been given an opportunity to make such representations as he may see fit as to why he should not be removed”); R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037, 1046H (Sir Thomas Bingham MR: “I leave open, but express no view on, the possibility that the same decision could have been reached on proper grounds”). 2.6.6 Remittal: scope/guidance/directions as to reconsideration. Senior Courts Act 1981 s.31(5)(a) (court’s power to remit “with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court”); R (Grinham) v Parole Board [2020] EWHC 2140 (Admin) at §77 (remittal with direction for a fresh oral hearing by a specified date); JJ Gallagher v Cherwell District Council [2016] EWCA Civ 1007 [2016] 1  WLR 5126 at §34 (considering, in the context of planning statutory review jurisdiction and powers, permissible directions on remittal); R (Essex County Council) v Secretary of State for Education [2012] EWHC 1460 (Admin) at §85 (quashing decision and ordering that it be retaken to give effect to due regard duty found to have been breached; order expressly stating that Secretary of State “need not reopen or reconsider any other issue”); R (Balakoohi) v SSHD [2012] EWHC 1439 (Admin) at §121 (remittal with declarations as to five matters on which the Secretary of State “may not rely in any future consideration of 35

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[the claimant’s] application”); R (Festiva Ltd) v Highbury Corner Magistrates’ Court [2011] EWHC 3043 (Admin) at §§13-14 (quashing magistrates’ licensing decision and remitting with direction that Court was satisfied by modified licensing terms agreed between the other parties); R (Hill) v Parole Board [2012] EWHC 809 (Admin) (ordering remitted hearing to take place by specified date; in the absence of good reason, and with liberty to apply); R (A) v Lord Saville of Newdigate [2001] EWCA Civ 2048 [2002] 1 WLR 1249 at §57 (matter remitted to Tribunal “with a direction that … evidence should not be taken in Londonderry”); R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309, 350G-351A (on remittal “it will be their duty to follow the guidance as to the law now given by your Lordships’ House”); R v Tower Hamlets LBC, ex p Chetnik Developments Ltd [1988] AC 858, 879A (mandatory order requiring “a fresh decision” with the House of Lords’ giving guidance as to which reasons were permissible and which were not); R v DPP, ex p C (1995) 7 Admin LR 385, 393D-E (reconsideration “in the light of the judgment of this court, and … of all that has happened since the original decision was made”); R v Immigration Appeal Tribunal, ex p Singh [1987] 1 WLR 1394, 1399E (remittal for determination “in the light of the views on the law expressed by this court”); West Glamorgan County Council v Rafferty [1987] 1 WLR 457, 478D-H (declaration inapt because council “must be left free, to deal with the situation as they think best having regard to their duty and powers”), 478F-H (wrong to pre-judge reasonableness of future decisions); R v Dairy Produce Quota Tribunal, ex p PA Cooper & Sons (1994) 6 Admin LR 540, 552A (“It is not for this court to pre-empt the jurisdiction of the Tribunal by making the declarations sought”); R v Uxbridge Justices, ex p HewardMills [1983] 1 WLR 56, 64D (“Nothing that I have said today must fetter the justices when the position is reconsidered in the light of the principles to which I have drawn attention”); {24.4.25} (avoiding remedy that would fetter the defendant); cf R (Perrett) v Secretary of State for Communities & Local Government [2009] EWCA Civ 1365 [2010] PTSR 1280 at §17 (following remittal on successful planning appeal, no inflexible duty to rehear all issues de novo), §29 (describing the “obvious importance” that the court “define with clarity the error … and thereby make clear what must be done in order to produce a determination in accordance with the opinion of the court”). 2.6.7 Reconsideration: effect of procedural fairness intervention. R (C) v Chief Constable of Greater Manchester [2011] EWCA Civ 175 [2011] 2 FLR 383 at §16 (“Normally, when the Administrative Court forms the judgment that a decision of a public body is flawed for procedural irregularity, the order will be quashed and that will put matters back to square one”); R v Lord Chancellor, ex p Law Society (1994) 6 Admin LR 833 (DC), 866D (describing cases where “procedural irregularities will make it appropriate for a court to quash an existing decision and to declare that a further decision should only be reached after proper consultation has taken place”); R v SSHD, ex p Benwell [1985] QB 554, 574C-E (remitting the matter for a decision, to be reached ignoring previous tainted proceedings); Cocks v Thanet District Council [1983] 2 AC 286, 295D-F (court’s decision does not “determine the issue” where the “decision is successfully impugned on … [grounds] that the [claimant] was not fairly heard”). 2.6.8 Reconsideration: effect of unlawfulness intervention. R v Ealing District Health Authority, ex p Fox [1993] 1 WLR 373, 387H-388A (declaration identifying error of law for reconsideration accordingly); R v Criminal Injuries Compensation Board, ex p Ince [1973] 1 WLR 1334, 1342H (decision quashed for error of law and remitted for reconsideration); R v Chief Metropolitan Stipendiary Magistrate, ex p SSHD [1988] 1 WLR 1204, 1219C (matter remitted with direction to commit if satisfied that conduct amounting to extradition crimes); R v South East Hampshire Family Proceedings Court, ex p D [1994] 1 WLR 611, 614A (matter remitted “for a decision to be made on the correct principle”); Rajkumar v Lalla 29 November 2001 unreported (PC) at §23 (“there may be cases in which the result of a successful judicial review is that the legal considerations provide a unique admissible decision which the statutory authority could lawfully give in the circumstances”). 2.6.9 Reconsideration: effect of unreasonableness intervention. R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394 at §57 (errors of fact, consideration of irrelevancies and failure to consider relevancies), §65 (remittal 36

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for reconsideration); R (Bramall) v Law Society [2005] EWHC 1570 (Admin) at §§70-71 (finding was unreasonable and could not be repeated on reconsideration); Cocks v Thanet District Council [1983] 2 AC 286, 295D-F (describing “cases where the court’s decision will effectively determine the issue, as for instance where on undisputed primary facts the court holds that no reasonable housing authority, correctly directing itself in law, could be satisfied”); Stovin v Wise [1996] AC 923, 953D-E (irrational failure to exercise statutory power amounting to public law duty to act); West Glamorgan County Council v Rafferty [1987] 1 WLR 457, 478C-479A (defendant free to deal as it thinks best, unless Court able to decide that a particular course perverse); R v Cornwall County Council, ex p Cornwall & Isles of Scilly Guardians ad Litem & Reporting Officers Panel [1992] 1 WLR 427, 436H-437C (although unreasonable decision matter nevertheless “referred back to the county council to reconsider”); R v Secretary of State for Trade, ex p Vardy [1993] ICR 720, 761D-E (decision irrational, court granting declaration as to the course required to be adopted); R v Warwickshire County Council, ex p Powergen Plc [1997] 3 PLR 62, 70B-D (court making clear that only one reasonable course open). 2.6.10 Reconsideration: effect of other intervention. R (Patel) v General Medical Council [2013] EWCA Civ 327 [2013] 1 WLR 327 at §81 (failure to address impact on those with a legitimate expectation vitiating the decision), §82 (not sufficient to dispose of the case, because of dispute as to whether departure from legitimate expectation could be justified), §85 (not open to defendant to change its policy here); R (Ngole) v University of Sheffield [2019] EWCA Civ 1127 [2019] ELR 443 at §§129, 134 (disciplinary approach was disproportionate), §146 (remittal for new hearing because “new findings of fact” needed); {58.4.6} (not justified yet). 2.6.11 No remittal where only one proper course. R (Holloway) v Harrow Crown Court [2019] EWHC 1731 (Admin) at §§54, 66-67 (although “judge’s reasoning cannot stand”, remittal “to consider the matter afresh” inappropriate, because the order made was “the only proper exercise of discretion”); Jones v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1267 [2019] 1 WLR 1391 at §§32, 35 (inappropriate to remit to the first-tier tribunal where “only one possible outcome”); R (C) v Chief Constable of Greater Manchester [2011] EWCA Civ 175 [2011] 2 FLR 383 at §§16-18 (whether right to say remittal unnecessary because decision plainly and obviously wrong); R v Preston Crown Court, ex p Lancashire County Council [1995] COD 388 (compensation orders quashed with no remittal); R v Nottingham Crown Court, ex p Toms [1995] COD 389 (driving disqualification and fine quashed with no remittal); R v Chief Constable of the Merseyside Police, ex p Merrill [1989] 1 WLR 1077, 1088B-F (quash disciplinary proceedings, declining to remit, since prejudicial delay would “inevitably lead him to discontinue the inquiry”); T v SSHD [1995] 1 WLR 545 (CA), 559F-G (no need to remit immigration appeal to IAT where Court can decide it, given IAT’s clear findings of fact); {4.2} (materiality/absence of prejudice at common law); {4.3} futility; {24.4.2} (substitutionary remedy: Court’s power of retaking the decision). 2.6.12 Partial quashing. {43.1.7} 2.6.13 Impact of victory: no gain? R v Secretary of State for Trade, ex p Vardy [1993] ICR 720 (successful procedural challenge to pit closure decisions, but Government went on to close the pits anyway: see R v British Coal Corporation, ex p Price (No 2) [1993] COD 323 and 482); R v Secretary of State for the Environment, ex p Brent LBC [1982] QB 593 (successful challenge but Minister duly reconsidered but reached substantially the same decision, which was upheld: see R v Secretary of State for the Environment, ex p Hackney LBC [1984] 1 WLR 592); Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997 (mandatory order secured requiring the Minister to reconsider, but in the event the Minister declined to follow the committee’s advice); R v London Borough of Lambeth, ex p Miah (1995) 27 HLR 21, 28-29 (court concluding that the council purported to exercise a power which it did not have, but identifying two legal avenues which would be open to it); R v Secretary of State for Foreign & Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386 (DC finding unlawful the use of development aid for controversial dam project, to which the Government responded by using different funds: see Sedley [2012] JR 95 at §10). 37

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2.6.14 Outcome reversed by legislation. See eg R (M) v Slough Borough Council [2008] UKHL 52 [2008] 1 WLR 1808 at §19 (explaining that Asylum and Immigration Act 1996 was enacted to reverse the effect of the previous JCWI and Kihara cases); South West Water Authority v Rumble’s [1985] AC 609 (Daymond v Plymouth City Council [1976] AC 609 subsequently reversed by the Water Charges Act 1976). 2.6.15 Counterproductive victory: position worse than before? R (Sandhar) v Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1614 [2012] ELR 160 at §2 (Longmore LJ, suggesting that if claimant successful in impugning independence of OIA, his principal means of redress would be removed and any future substitute procedure would be too late to benefit him); R (KM) v Cambridgeshire County Council [2012] UKSC 23 [2012] PTSR 1189 at §38 (pointless to quash for claimant’s entitlement to be “considered again, perhaps even to his disadvantage”); R v Richmond upon Thames LBC, ex p McCarthy & Stone (Developments) Ltd [1992] 2 AC 48 (HL explaining that local authority not entitled to make nominal charge for pre-planning advice, but entitled to withhold the advice altogether); R v Hereford & Worcester Local Education Authority, ex p Jones [1981] 1 WLR 768 (claimant establishing unlawfulness of “modest” charges towards daughters’ violin and clarinet tuition, but CA pointing out that education authority perfectly entitled to discontinue the tuition altogether); Bouchard in Taggart (ed), Judicial Review of Administrative Action in the 1980s (1986) 184 (describing the consequences of O’Brien v National Parole Board (1984) 12 Admin LR 249, a judicial review establishing that parole hearings were unlawful unless involving the whole decision-making panel, as a result of which all hearings were scrapped); R v Parole Board, ex p Watson [1996] 1 WLR 906 (CA dismissing a challenge which “could only work to the disadvantage of discretionary life prisoners recalled”). 2.6.16 Judicial review as a springboard: tort claims. Gulf Insurance Ltd v Central Bank of Trinidad and Tobago [2005] UKPC 10 (having declared on judicial review that bank assets unlawfully transferred at an undervalue, PC ruling that bank entitled to damages for conversion); Slough Estates Plc v Welwyn Hatfield District Council [1996] 2 PLR 50 (developer awarded £48.5m damages in deceit, following successful judicial review proceedings); In re McC (A Minor) [1985] AC 528 (judicial review claim having resulted in detention order being quashed, leading to a successful tort claim against the magistrates for false imprisonment); Rowling v Takaro Properties Ltd [1988] AC 473 (claimant having obtained judicial review of decision by the New Zealand Minister of Finance refusing consent to a proposed share transfer, but PC overturning subsequent damages award in negligence); Calveley v Chief Constable of Merseyside [1989] AC 1228 (failed tort claims, for breach of statutory duty, negligence and misfeasance, founded on the successful judicial review proceedings in R v Chief Constable of the Merseyside Police, ex p Calveley [1986] QB 424); R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19 (false imprisonment damages, judicial review claim having established correct prisoner release date); {P25} (monetary remedies). 2.6.17 Judicial review as a springboard: restitution claims. Vodafone Ltd v Ofcom [2020] EWCA Civ 183 [2020] 2 WLR 1108 (restitution claim in respect of licence fees, following quashing of regulations on judicial review: EE Ltd v Ofcom [2017] EWCA 1873 [2018] 1 WLR 1868); Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 (restitution to allow recovery of money paid pursuant to an unlawful tax demand, following successful application for judicial review to quash the regulation on which the demand had been based: R v Inland Revenue Commissioners, ex p Woolwich Equitable Building Society [1990] 1 WLR 1400); R v East Sussex County Council, ex p Ward (2000) 3 CCLR 132 at §40 (restitution issues requiring separate proceedings, the unlawfulness of the agreement for payment having been established on judicial review); {25.1.9} (claim for restitution in judicial review). 2.6.18 Other monetary consequences of successful judicial review. R (Risk Management Partners Ltd) v Brent LBC [2011] UKSC 7 [2011] 2 AC 34 at §§6-7 (damages under Public Contract Regulations 2006, following successful judicial review claim for a declaration; overturned on the legal merits on appeal); McLaughlin v Governor of the Cayman Islands 38

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[2007] UKPC 50 [2007] 1 WLR 2839 (salary and pension entitlements following from judicial review of procedurally invalid dismissal of public office-holder). 2.6.19 Judicial review linked to damages claim not an abuse of process. State of Mauritius v CT Power Ltd [2019] UKPC 27 at §39 (“nothing abusive in taking advantage of the judicial review procedure” to “obtain determination of … issues” which were “properly arguable claims” for judicial review, “even if it they might have been thought to be issues relevant to a possible claim for damages”). 2.6.20 Judicial review provoking assurances/action/comment. R v West London Stipendiary Magistrate, ex p Simeon [1983] 1 AC 234, 239D-E, 243F (confirmation given that no prosecutions would take place); R v Oldham Metropolitan Borough Council, ex p Garlick [1993] AC 509, 520H (council undertaking to reconsider); R v SSHD, ex p Doody [1994] 1 AC 531, 563B-C (Home Secretary giving undertaking that life prisoners were entitled to make representations as to their ‘tariff’ periods); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 548D-E (assurance that no claimant would be adversely affected by the changed scheme); R v Northavon District Council, ex p Smith [1994] 2 AC 402, 413C-E (“under the threat of judicial review, the housing authority did, in fact, call off the eviction, and allowed the Smith family to remain in temporary accommodation”). 2.6.21 Court providing legal analysis, notwithstanding the outcome. Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 (although claim dismissed on grounds of lack of standing, SC taking the opportunity to analyse and identify statutory incompatibility with human rights); R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [2003] UKHRR 76 at §§64, 66 (without directly ruling on legality of detention by US authorities at Guantanamo Bay, Court of Appeal commenting that detention arbitrary and in breach of human rights, as involving a “legal black hole”); R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 [2005] 1 WLR 2219 at §23 (Home Office required to formulate a “written flexibility policy”), §25 (“a material part of the RLC’s concern needs to be addressed”); R v Secretary of State for Transport, ex p National Insurance Guarantee Corporation Plc [1996] COD 425 (judicial review failing but providing the comfort that legislative provision not having the feared meaning). 2.6.22 Court making observations, notwithstanding the outcome. Dill v Secretary of State for Communities and Local Government [2020] UKSC 20 [2020] 1 WLR 2206 at §60 (hinting that respondents might decide not to pursue the matter); R (R) v Chief Constable of Manchester [2018] UKSC 47 [2018] 1 WLR 4079 at §§72, 76 (expressing “general concerns” as to police disclosure of data, to which “careful thought” needing to be given); R (Khajuria) v SSHD [2019] EWHC 1226 (Admin) at §30 (expressing hope of sympathetic consideration); Christian Institute v Lord Advocate [2016] UKSC 51 [2016] SLT 805 at §§95-101, 106-108 (commenting as to problems of proportionality and safeguards needed); Hotak v Southwark LBC [2015] UKSC 30 [2016] AC 811 at §88 (expressing hope that housing decision would be reconsidered); R (Black) v Secretary of State for Justice [2009] UKHL 1 [2009] AC 949 at §81 (parole position HRA-compliant but “indefensibly anomalous”); Rushbridger v HM AttorneyGeneral [2003] UKHL 38 [2004] 1 AC 357 (prosecution for anti-royal articles inconceivable); R (Howard League for Penal Reform) v SSHD [2002] EWHC 2497 (Admin) [2003] 1 FLR 484 at §175 (claimant having “performed a most useful service in bringing to public attention matters which, on the face of it, ought to shock the conscience of every citizen”); R v SSHD, ex p Stafford [1998] 1 WLR 503, 518F (urging reconsideration); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1166B-C (comments “to make clear” that claimant “emerges from this litigation with his reputation wholly untarnished”); R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1155, 1197A-B (explaining what the council’s “proper course must surely be”); R v Commission for Racial Equality, ex p Hillingdon LBC [1982] AC 779, 793F (hinting that it was “difficult to believe that the commission will persist in trying afresh to embark upon a formal investigation”); R v SSHD, ex p Read [1989] AC 1014, 1055D (exercise of powers “may be a matter which the Secretary of State will wish to consider”); R v SSHD, ex p Oladehinde [1991] 1 AC 254, 301G-302B 39

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(identifying a “much more satisfactory” procedure); R v Northavon District Council, ex p Smith [1994] 2 AC 402, 413E (hoping that parties “will explore the possibility of obtaining council accommodation informally and in a spirit of mutual cooperation”). 2.6.23 Wide impact of a test case. R (Limbuela) v SSHD [2004] EWCA Civ 540 [2004] QB 1440 at §2 (666 judicial review cases awaiting disposal in the light of the CA’s judgment) (HL is at [2005] UKHL 66 [2006] 1 AC 396); In re Wilson [1985] AC 750, 755F (Lord Roskill, recognising that “magistrates courts … must be faced with this situation in many thousands of cases each year”); R v Stockport Justices, ex p Conlon [1997] 2 All ER 204, 205D (100 or so like cases in the Administrative Court List); R v Criminal Injuries Compensation Board, ex p Webb [1987] QB 74, 77F-G (250 similar cases waiting in the wings); {22.1.31} (stay of judicial review claim pending determination of a test case).

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P3 Procedural rigour & flexibility. The Court requires high standards of procedural rigour, but exercises appropriate procedural flexibility, to secure justice. 3.1 Procedural rigour 3.2 Procedural flexibility

3.1 Procedural rigour.4 The Courts expect judicial proceedings to be conducted with a high level of procedural rigour. Where appropriate, they apply procedural strictness and firm case-management. 3.1.1 Procedural rigour in judicial review: Talpada. R (Talpada) v SSHD [2018] EWCA Civ 841 at §67 (Singh LJ, referring to the need for “procedural rigour in public law litigation”, observing that: “public law litigation must be conducted with an appropriate degree of procedural rigour. I recognise that public law litigation cannot necessarily be regarded in the same way as ordinary civil litigation between private parties. … In particular procedure must not become the master of substance. … However, both fairness and the orderly management of litigation require that there must be an appropriate degree of formality and predictability in the conduct of public law litigation”). 3.1.2 Procedural rigour in judicial review: other observations. R (Spahiu) v SSHD [2018] EWCA Civ 2604 [2019] 1 WLR 1297 at §2 (Coulson LJ, describing “the need for appropriate procedural rigour in judicial review cases”; “even in proceedings where unnecessary formality is to be avoided, some formality (and the certainty which it brings) is required”); R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339 at §105 (Black LJ: “Procedural formalities are one of the safeguards of fairness in litigation. They can play an important part in ensuring that proceedings have a clear focus, that the material relied upon by each side is clearly identified in a timely fashion, and that the arguments address the issues that fall for determination”) Regalbourne Ltd v East Lindsey District Council (1994) 6 Admin LR 102, 111H-112A (describing the “public law context”, where “the reasonable requirements of public administration have a significance which is absent in ordinary inter partes litigation”); R v Institute of Chartered Accountants in England and Wales, ex p Anreas Chry Andreou (1996) 8 Admin LR 557, 562H-563B (“Public law litigation cannot be conducted at the leisurely pace too often accepted in private law disputes”). 3.1.3 Procedural rigour: importance of adhering to the rules. R (AB) v Chief Constable of Hampshire Constabulary [2019] EWHC 3461 (Admin) at §108 (Dame Victoria Sharp P: “There are rules of procedure contained in civil procedure rules, in particular CPR Part 54 and Practice Direction 54A on Judicial Review. The rules and the relevant case law are summarised in the current Administrative Court Guide to which regard should be had by all those engaged in proceedings in the Administrative Court. … The rules are there to ensure fairness as between the parties, that is, the claimant, the defendant and any interested party and that the relevant issues are properly identified and the relevant evidence is produced. This enables a court to determine whether a claim is established. The timetable laid down in the rules, and in any directions made by the court, enables the issues between the parties to be identified and the relevant evidence to be produced in a coherent sequence. The conduct of litigation in accordance with the rules is integral to the overriding objective set out in the first part of the CPR and to the wider public interest in the fair and efficient disposal of claims. Public law cases do not fall into an exceptional category in any of these respects. If the rules

4The

equivalent paragraph in a previous edition was relied on in R (Barron) v Surrey County Council [2002] EWCA Civ 713 at §22 (Dyson LJ).

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are not adhered to there are real consequences for the administration of justice”); R (B) v Chief Constable of Derbyshire [2011] EWHC 2362 (Admin) at §100 (professional duty of familiarity with procedural rules, of both “those who practise regularly in the Administrative Court” and “those who may find themselves in the Administrative Court less frequently or as birds of passage” given “the professional obligation of practitioners making a visit to some unfamiliar court or tribunal”). 3.1.4 Procedural rigour: adherence and proactivity. Administrative Court: Judicial Review Guide (2020 edition) at §12.2.3 (“The parties must comply with the procedural provisions in the CPR, the relevant Practice Directions and orders of the Court (including orders by ACO lawyers). If a party knows they will not be able to comply with Directions or orders they should inform the ACO and the other parties as soon as possible. If it is necessary to make an application to extend time for any particular step in the proceedings to be taken, that application should be made as soon as it becomes apparent that an extension of time is required. The application should be made in accordance with the interim applications procedure in paragraph 12.7 of this Guide”). 3.1.5 Procedural rigour and early identification of the claim’s real substance. R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [1998] Env LR 415, 424-425 (Laws J: “the judicial review court, being primarily concerned with the maintenance of the rule of law by the imposition of objective legal standards upon the conduct of public bodies, has to adapt a flexible but principled approach to its own jurisdiction. … [T]he court … will impose a strict discipline in proceedings before it. It is marked by an insistence that [claimants] identify the real substance of their complaint and then act promptly, so as to ensure that the proper business of government and the reasonable interests of third parties are not overborne or unjustly prejudiced”). 3.1.6 Procedural rigour: unpleaded grounds. R (Talpada) v SSHD [2018] EWCA Civ 841 at §68 (Singh LJ, speaking of “procedural rigour in public law proceedings”, in the context of grounds of appeal: “grounds of challenge have a ‘habit’ of evolving during the course of proceedings … many months after the formal close of pleadings and after evidence has been filed”), §69 (“Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest”); Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at §112 (refusing permission to amend); Keep Bourne End Green v Buckinghamshire Council [2020] EWHC 1984 (Admin) at §37 (Holgate J: “the Court of Appeal has emphasised the need for procedural rigour in public law proceedings just as in other areas of civil justice. That requirement extends to the proper pleading of cases so as to identify formally, clearly, concisely and precisely the points being raised”). 3.1.7 Procedural rigour: case-management and the scope of the issues. R (EG) v Parole Board [2020] EWHC 1457 (Admin) at §§47, 62-63 (May J giving a “preliminary case management ruling” at the start of the substantive hearing, as to the scope of the issues as pleaded). 3.1.8 Procedural rigour: proper pleading of damages claim. R (Fayad) v SSHD [2018] EWCA Civ 54 at §§48, 54 (claim for damages in judicial review “should be properly pleaded and particularised”), §56 (not “thrown in at the end of a claim form … as an afterthought”); R (Thapar) v SSHD [2017] EWCA Civ 2080 at §19 (“When there is a claim for damages … in a claim for judicial review, the court expects that to be fully and properly pleaded”); {19.2.11} (procedural rigour: HRA damages claims); {25.1.7} (procedural rigour: properly pleading money claims). 3.1.9 Procedural rigour: urgent immigration cases. {19.2.15} (challenging immigration removals: additional prescribed requirements); {3.1.20} (procedural rigour (immigration cases): the Hamid jurisdiction (referral to the SRA)). 42

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3.1.10 Procedural rigour: golden rules in urgent cases. R (Detention Action) v SSHD [2020] EWHC 732 (Admin) [2020] ACD 70 at §32 (Dame Victoria Sharp P and Swift J: “The Courts will always stand ready to determine urgent cases. … But the golden rules are that representatives who bring claims must prepare those claims cogently and conduct the litigation sensibly and proportionately, and most of all, they must cooperate with each other when preparing cases and bringing them to the Court”); R (SB (Afghanistan)) v SSHD [2018] EWCA Civ 215 [2018] 1 WLR 4457 (discussing urgent immigration removal cases) at §56 (“The basic principles are clear: (i) steps to challenge removal should be taken as early as possible, and should be taken promptly after receipt of notice of a removal window … and (ii) applications to the court for interim relief should be made with as much notice to the Secretary of State as is practicably feasible”), §57 (“The duty of candour is directed … to ensuring that matters unfavourable to the applicant are drawn to the attention of the judge” and “there is a strong imperative for those instructed late in the day to make no representations or factual assertions which do not have a proper foundation in the materials available to them”), §61 (importance of giving notice to SSHD, including in an out-of-hours application case). 3.1.11 Procedural rigour applicable to public authorities too. R (National Council for Civil Liberties) v SSHD (Procedural Matters) [2018] EWHC 976 (Admin) at §18(5) (Singh LJ: “The Government, like all litigants, must comply with orders made by the court, both to ensure fairness and to facilitate the orderly and efficient conduct of litigation”); R (Khan) v SSHD [2016] EWCA Civ 416 at §55 (“The Secretary of State … should set an example in complying with the rules”); R (Green) v Commissioner of Police of the Metropolis [2018] EWHC 3657 (Admin) at §§18-19 (where defendant failed to serve detailed grounds or a skeleton, prepared to hear from counsel only as to “substantive points” regarding “the factual position”); R (Viridor Waste Management) v HMRC [2016] EWHC 2502 (Admin) [2016] 4 WLR 165 (part costs order where defendant failed on a distinct issue which it had raised), §8 (appropriate to “discourage a ‘kitchen sink’ approach to litigation”). 3.1.12 Procedural rigour and defendant’s pleaded grounds of resistance. R (Leighton) v Lord Chancellor [2020] EWHC 336 (Admin) [2020] ACD 50 at §72 (Cavanagh J: “the obligation of rigour in pleading must also apply to defendants (although the public interest considerations may not be exactly the same”). 3.1.13 Procedural rigour: debarring orders and public authorities. BPP Holdings Ltd v HMRC [2017] UKSC 55 [2017] 1 WLR 2945 at §30 (Lord Neuberger, rejecting an approach in which it was “taken into account … that [a] debarring order … prevents HMRC from discharging its public duty and could lead to the public interest being harmed”, as one which “would set a dangerous precedent … as it would discourage public bodies from living up to the standards expected of individuals and private bodies in the conduct of litigation”; “there is at least as strong an argument for saying that the courts should expect higher standards from public bodies”); R (Green) v Commissioner of Police of the Metropolis [2018] EWHC 3657 (Admin) at §§18-19 (where defendant failed to serve detailed grounds or a skeleton, prepared to hear from counsel only as to “substantive points” regarding “the factual position”). 3.1.14 Relief from sanctions (Mitchell/Denton) in judicial review. Administrative Court: Judicial Review Guide (2020 edition) at §12.9 |(relief from sanctions), §12.3.1 (late documents); CPR 3.9 (“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders. (2) An application for relief must be supported by evidence”); R (QR (Pakistan)) v SSHD [2018] EWCA Civ 1413 at §45 (Hickinbottom LJ, summarising in the context of judicial review the relief against sanctions approach from the leading cases of Mitchell [2013] EWCA Civ 1537 [2014] 1 WLR 795 and Denton [2014] EWCA Civ 906 [2014] 1 WLR 3926: “The proper approach … in respect of relief from sanctions … involves three stages. i) The court must first identify and assess 43

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the seriousness and significance of the relevant failure to comply with any rule, practice direction or court order, taking into account the materiality of the breach including its effect on the conduct of the litigation and of litigation generally. If the breach is neither serious nor significant, then the court will likely grant relief. ii) If it is serious and/or significant, then the court will consider why the default occurred. If good reason for the breach is shown, then again relief will usually be granted. iii) Finally, the court will evaluate all the circumstances of the case, so as to enable it to deal justly with the application, giving particular (although not paramount) importance to the factors in CPR rule 3.9(1), i.e. the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders”); R (Hysaj) v SSHD [2014] EWCA Civ 1633 [2015] 1 WLR 2472; BPP Holdings Ltd v HMRC [2017] UKSC 55 [2017] 1 WLR 2945 at §30 (relief from sanctions and barring orders); Thevarajah v Riordan [2015] UKSC 78 [2016] 1 WLR 76 at §13; R (Jetly) v SSHD [2019] EWHC 204 (Admin) at §160 (refusing relief against sanctions for serious and persistent breaches of the rules and court orders); R (National Council for Civil Liberties) v SSHD (Procedural Matters) [2018] EWHC 976 (Admin) at §3 (defendant’s late skeleton); R (Plant) v Somerset County Council [2016] EWHC 1245 (Admin) [2016] ACD 76 at §§13, 33 (relief from sanctions to set aside mandatory order refused); Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624 [2014] 1 WLR 4313; {22.1.6} (procedural rigour/flexibility: late defendant’s grounds/relief from sanctions). 3.1.15 Procedural rigour: evidence and advocacy. Packham v Secretary of State for Transport [2020] EWHC 829 (Admin) at §34 (criticising claimant’s inclusion of “wholly irrelevant” evidence, seemingly “for prejudicial purposes”); R (Good Law Project) v Electoral Commission [2018] EWHC 602 (Admin) at §52 (“The court will not be assisted by rhetorical points which have no relevance to the legal issues and expects counsel to eschew such points in accordance with their duty owed to the court to act with independence”); R (A) v South Kent Coastal CCG [2020] EWHC 372 (Admin) at §79 (Court’s supervisory jurisdiction “should not be undermined by invitations to the court to cherry-pick evidence or to interpret … decisionmaking documents and … consultation documents like a statute”); R v Independent Television Commission, ex p Virgin Television Limited [1996] EMLR 318 (criticising the “‘pick out a plum’ school of advocacy [which] is particularly dangerous (as well as being futile) in judicial review”, involving “plum-picking” where “an unpleaded case is raised, effectively too late for any evidential reply”); R (Bateman) v Legal Services Commission [2001] EWHC Admin 797 at §18 (“the ‘leave no stone unturned’ approach is no longer to be encouraged”). 3.1.16 Procedural discipline: giving an explanation for non-compliance. R (Khan) v SSHD [2016] EWCA Civ 416 at §55 (where non-compliance with the rules, defaulting party “should give an explanation to the court”). 3.1.17 Procedural rigour: keeping the Court informed. Administrative Court: Judicial Review Guide (2020 edition) at §22.6.1 (“The parties have an obligation to inform the Court if they believe that a case is likely to settle as soon as they become aware of the possibility of settlement. Such information allows judges and staff to allocate preparation time and hearing time accordingly. Failure to do so may result in the Court making an adverse costs order against the parties”); Westminster City Council v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1472 (Admin) [2020] ACD 66 at §41 (Holgate J: “[The] cooperation by the parties should include the timely discontinuance or settlement of claims and notification of the court that a hearing will not need to take place. First, this assists the parties directly involved by saving costs and reducing delay for them. Second, it helps the court and its users in general by avoiding the need for resources to be allocated to cases which can be resolved by agreement”); R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339 at §98 (where “further consideration [leads] to a change of position by one of the parties …, it is the responsibility of that party to inform the court and the other party within a reasonable time”); R (Elmes) v Essex County Council [2018] EWHC 2055 (Admin) [2019] 1 WLR 1686 at §193 (Walker J: “in public law cases … where a remedy is discretionary the court needs to be informed of matters which may affect the exercise of its discretion”), §194 (“it was important that the court be informed of anything which might have a bearing 44

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on the court’s decision whether to grant a public law discretionary remedy”); R (National Council for Civil Liberties) v SSHD (Procedural Matters) [2018] EWHC 976 (Admin) at §31 (Singh LJ: “there is a continuing obligation on public authorities … to keep the Court up to date with relevant evidence”). 3.1.18 Procedural rigour: interveners. R (Newby Foods Ltd) v Food Standards Agency [2019] UKSC 18 [2019] 3 CMLR 19 at §50 (interveners in judicial review proceedings in the Supreme Court should have filed proposed new evidence when applying to intervene); R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852 [2019] 1 WLR 1862 at §53 (Leggatt LJ: “When a person or organisation … is granted permission to intervene, it is in the expectation that the intervener will act responsibly to endeavour to assist the court in the public interest”), §52 (inappropriate attempts to introduce evidence as submissions). 3.1.19 Procedural rigour in the Court of Appeal. R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860 [2018] 1 WLR 5161 at §§36-37 (importance of grounds of appeal in judicial review cases being crisp, clear and straightforward); R (Talpada) v SSHD [2018] EWCA Civ 841 at §68 (Singh LJ, describing it as “important that only those grounds of appeal for which permission has been granted … are then pursued”); Hickey v Secretary of State for Work and Pensions [2018] EWCA Civ 851 [2018] 4 WLR 71 at §68 (“the need for procedural rigour”), §74 (“the grounds of appeal must address, clearly and concisely, the relevant part of the decision and the way in which it is said to be wrong or unjust. The reasons why it is said the decision is wrong or unjust must not be included in the grounds, and must be confined to the skeleton argument”; “an appellant who has obtained permission to appeal and wishes to add to or otherwise amend his grounds must make a formal application to do so under CPR r.52.17, as soon as he reasonably can. Grounds of appeal cannot be covertly amended, for example … in the skeleton argument”). 3.1.20 Procedural rigour (immigration cases): the Hamid jurisdiction (referral to the SRA). Administrative Court: Judicial Review Guide (2020 edition) at §§16, 21.4 (abuse of judicial review procedures in immigration cases); R (Al Mahfuz) v Upper Tribunal [2019] EWHC 2318 (Admin) at §1 (applying “the court’s inherent jurisdiction to govern its own procedures under what is known as the Hamid jurisdiction … and to refer appropriate cases to the Solicitors Regulation Authority”), based on R (Hamid) v SSHD [2012] EWHC 3070 (Admin); R (Jetly) v SSHD [2019] EWHC 204 (Admin) at §161 (judgment and papers sent to the SRA), §162 (judgment sent to the DPP); R (Sathivel) v SSHD [2018] EWHC 913 (Admin) [2018] 4 WLR 89 at §2 (Green J, describing the Hamid jurisdiction: “The Court has an inherent jurisdiction to govern its own procedure and this includes ensuring that lawyers conduct themselves according to proper standards of behaviour. … When a Judge concludes that a lawyer has acted improperly that may be recorded in a court order. The papers are then referred to the High Court Judge having responsibility for this jurisdiction. A ‘Show Cause’ letter may then be sent to the lawyers concerned who are invited to respond addressing the matters of concern raised in the Show Cause letter. If the Judge in charge considers the response to be inadequate the case may be referred to the Divisional Court. In the event that the Court finds that the conduct in question falls below proper standards the Court can admonish a practitioner. Alternatively, the Court can refer the file to the relevant regulatory authority, usually the Solicitors Regulation Authority, for further investigation and if appropriate the imposition of sanctions”), §97 (“(i) When a Show Cause letter is sent the addressee(s) must respond in way which includes a witness statement drafted by a person who is responsible for the case in question, and the statement of truth must be signed. That person must know that to lie or deliberately mislead in such a statement may be a contempt of court. (ii) Whilst the response might include anything which the lawyer considers proper a full, candid and frank response to the questions posed in the Show Cause letter and to the issues set out in the Court Order referring the case under the Hamid jurisdiction must be given. If there has been a recent change of lawyers, the witness statement must include full particulars of the circumstances giving rise to the change. Relevant documents must be annexed. A full account of efforts made by the solicitor to obtain all relevant documents from the old solicitors must be set out. In future if the Court concludes that the change of instruction is a device or strategy it will 45

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consider including in any complaint to the SRA the position of the old solicitor. (iii) In future the Court will not necessarily refer the matter to a Divisional Court before deciding to pass the file to the SRA as a complaint. A complaint might be made to the SRA upon receipt of the response to the Show Cause letter, if that is considered to be an appropriate course to adopt. (iv) The Court will in future consider referring a case to the SRA on the first occasion that the lawyer falls below the relevant standards”). 3.1.21 Abuse of the judicial review process. Administrative Court: Judicial Review Guide (2020 edition) at §12.10 (abuse of the Court’s process), §12.11 (communications which are abusive or without proper purpose). 3.1.22 Procedural rigour: specific topics. {4.5.4} (matter becoming academic) {5.4.1} (new decisions) {5.4.7} (rolling judicial review) {10.1.9} (professional responsibilities and hopeless claims/defences) {10.1.10} (preparation of the case) {10.1.11} (providing documents and materials) {10.1.12} (cooperation and candour in drafting witness statements) {10.1.14} (high standards and ‘self-policing’) {10.1.22} (candour as to contact with Court/documents lodged at Court) {10.3.2} (claimant candour and urgent interim relief) {10.3.3} (claimant candour and urgent immigration cases) {11.1.16} (selectivity and discipline in citing authority) {11.1.17} (duty to cite adverse authority) {11.1.18} (need to identify the (distinct) proposition of law) {11.1.19} (need reason for citing factual application of decided law) {11.1.23} (procedural rigour/cooperation: bundles of authorities) {17.1.4} (last-minute evidence) {17.1.5} (argumentative, overburdensome and repetitive documents) {17.1.6} (evidence containing inappropriate comment) {17.1.7} (appropriate extent of defendant’s evidence) {17.1.8} (the need to exhibit primary/best evidence) {17.6.4} (seeking to rely on expert evidence in judicial review) {18.1.8} (costs as a sanction for non-compliance) {18.1.9} (costs implications of non-compliance with PAP) {18.1.10} (impact of default on costs order) {18.4.14} (ordering costs lie outside the JRCCO costs cap) {18.5.11} (costs, early disposal: defendant breached pre-action protocol) {18.5.12} (costs, early disposal: claimant’s late withdrawal) {19.2.11} (HRA damages claims) {19.2.17} (application to rely on expert evidence when filing claim) {19.2.20} (need for precision and particularity in the judicial review grounds) {19.2.21} (need for focus and realism in the judicial review grounds) {19.3.10} (the AOS/SGR) {20.1.8} (interim relief: proactivity and notice) {20.1.9} (interim relief: ensuring defendant/interested party is heard) {20.1.10} (interim relief: claimant’s duty of candour) {21.1.16} (basis for renewal of permission) {21.1.20} (time estimate for oral renewal of permission) {21.3.7} (TWM should not be routinely pleaded) {22.1.4} (defendant’s ongoing duty of re-evaluation) {22.1.6} (late defendant’s grounds) {22.1.7} (claimant duty of re-evaluation in light of defendant’s materials) {22.1.8} (claimant’s duty of re-evaluation if circumstances change) {22.1.17} (late evidence) 46

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{22.1.24} {22.1.25} {22.1.40} {22.4.20} {23.2.6} {23.2.8} {25.1.7} {25.1.14}

(amendment of claimant’s judicial review grounds) (‘rolling judicial review’ and amendment of judicial review grounds) (timetable for skeleton arguments) (focusing the oral argument/dropping weak points) (appeal to the CA) (amendment of judicial review grounds in appellate court) (properly pleading money claims) (transfer out of damages)

3.2 Procedural flexibility.5 The Court’s insistence on procedural rigour is accompanied by the availability, in an appropriate case and set of circumstances, of procedural flexibility to promote and protect the interests of justice. Judicial flexibility extends to impressive examples of, often innovative, approaches which aim to cut through procedural tangles and secure practical and effective justice. 3.2.1 Procedural flexibility: substance and procedure. R (Talpada) v SSHD [2018] EWCA Civ 841 at §67 (Singh LJ: “I recognise that public law litigation cannot necessarily be regarded in the same way as ordinary civil litigation between private parties. … In particular procedure must not become the master of substance”); {2.1.33} (in public law, substance matters more than form: Lord Steyn’s observation); R (Shah) v Central Criminal Court [2013] EWHC 1747 (Admin) [2013] ACD 105 (Moses LJ and Burnett J granting judicial review, where clear that appeal against conviction should have been allowed by the Crown Court, even though claimant should have proceeded by way of appeal by case stated). 3.2.2 Procedural flexibility: permission for claimant/amendment of grounds of claim. Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54 [2019] PTSR 1406 at §10 (appropriateness of “flexibility” in allowing amendment of grounds on statutory review in planning cases); R (Dolan) v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin) at §66 (Lewis J: “it is often undesirable to amend claim forms to include new challenges. … However, there is a need for an appropriate degree of procedural flexibility. In the present case, the issue … is a limited, defined and discrete issue arising out of an amendment to the Regulations under challenge”); R (Duggan) v Assistant Deputy Coroner for the Northern District of Greater London [2017] EWCA Civ 142 [2017] 1 WLR 2199 at §§65-66 (CA giving permission to raise a ground for judicial review, not raised in the DC, because of “the wider public interest”). 3.2.3 Procedural flexibility: permission for defendant/amendment of grounds of defence. R (Watson) v Independent Office for Police Conduct [2020] EWHC 509 (Admin) (declining to strike out defences of defendant and interested party, filed on time but served late); R (Leighton) v Lord Chancellor [2020] EWHC 336 (Admin) [2020] ACD 50 at §74 (“it is in the interests of justice to permit the defendant to advance the entirety of his case, as set out in his skeleton argument, and as developed orally”), §75 (“It is in the interests of justice to permit the defendant to rely upon the full scope of his defence as it was argued before me”); R (TD) v Secretary of State for Work and Pensions [2020] EWCA Civ 618 at §§48-49 (CA allowing Secretary of State to advance argument which should have required a Respondent’s Notice, giving permission to file one out of time, this being “in the interests of justice”, in circumstances of “no prejudice”, where the “substance of the arguments on the issue … was canvassed both in writing and at the hearing”); R (Khan) v SSHD [2016] EWCA Civ 416 at §53 (disproportionate to debar Secretary of State from participating at hearing because skeleton was late in breach of the rules, where breach can be reflected in costs order). 3.2.4 Procedural flexibility: court-formulated issue/ground. BF (Eritrea) v SSHD [2019] EWCA Civ 872 [2020] 4 WLR 38 (policy unlawful) at §51 (claimant’s grounds of appeal

5The

equivalent paragraph in a previous edition was relied on in Gafoor v Attorney General [2012] TTHC 81 (High Court of Trinidad and Tobago) at §29 (Kokaram J).

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were “not … the best framework for addressing the challenge to the Secretary of State’s policy”), §76 (basis for allowing claimant’s appeal “does not neatly correspond to any of the three pleaded grounds of appeal”, but “no unfairness” where “the issue … was fully explored in the oral submissions”). 3.2.5 Procedural flexibility: court-formulated remedy. R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737 [2019] PTSR 1794 at §47 (Sir Terence Etherton MR, Lindblom and Irwin LJJ: judicial review judge may “select one or more of those … forms of relief” which the claimant has pleaded, “or … craft a different remedy of his own”). 3.2.6 Procedural flexibility: rolling judicial review. {5.4} (‘rolling judicial review’). 3.2.7 Procedural flexibility: extension of time. South Derbyshire District Council v Secretary of State for Housing [2020] EWHC 872 (Admin) [2020] PTSR 1120 at §§31-32 (extension of time for service of planning review outside prescribed six weeks where reasonable steps and no prejudice); {26.3} (extension of time). 3.2.8 Claim vindicated on originally unpleaded ground. R (Johnson) v Secretary of State for Work and Pensions [2019] EWHC 3631 (Admin) (claimants succeeded on an originally unpleaded ground but, having validated their rights, overall justice required that they recover their costs in full); {10.4.9} (defendant’s candour: beyond the pleaded case). 3.2.9 Procedural flexibility: expert evidence. R (Holownia) v SSHD [2019] EWHC 696 (Admin) at §3 (although claimant had filed expert report without prior compliance with CPR 35, unfair to the claimant to prevent reliance on the report). 3.2.10 Anti-technicality: the delay rules. Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5 [2019] 1 WLR 983 at §29 (the delay “provisions should not be applied in a technical manner”). 3.2.11 Procedural flexibility: Court’s power to reconstitute itself. R (Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin) [2020] QB 478 at §86 (court satisfied that “right to dispense with all procedural requirements, to treat the claim as including a claim for judicial review of the decisions of the Crown Court and to quash those decisions”); Fun World Co Ltd v Municipal Council of Quatre Bornes [2009] UKPC 8 at §29 (Court “undoubtedly had power, if necessary, to treat [the matter] as an application for judicial review”); Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions The Times 20 December 2000 (treating s.289 planning appeal as s.288 appeal); R v Clerkenwell Metropolitan Stipendiary Magistrate, ex p DPP [1984] QB 821, 836C-D (treating judicial review as case stated, out of time); R (Arthurworry) v Haringey LBC [2001] EWHC Admin 698 (disciplinary proceedings not reviewable, but court granting a remedy by reference to the implied duty of trust and confidence between employer and employee). 3.2.12 High Court reconstituting case stated appeal as judicial review. Winder v DPP [2020] EWHC 1611 (Admin) at §§14-16 (no jurisdiction to entertain appeal by case stated, because challenging an interlocutory decision, but appropriate to convert to judicial review because this would resolve the proceedings one way or the other); Highbury Poultry Farm Produce Ltd v CPS [2018] EWHC 3122 (Admin) [2019] PTSR 633 at §55 (where case stated inappropriate because ruling on preliminary issue, court proceeding by way of judicial review); In re National Crime Agency [2020] EWHC 268 (Admin) [2020] 1 WLR 3224 at §41 (absent a case stated power, court would have treated as judicial review and dispensed with all formalities); Platinum Crown Investments Ltd v North East Essex Magistrates’ Court [2017] EWHC 2761 (Admin) [2018] 4 WLR 11 at §18 (Treacy LJ: “notwithstanding the general rule that this court has no jurisdiction to deal with an interlocutory appeal from the magistrates’ court in a criminal matter by way of cases stated, a degree of flexibility in dealing with the matter is available to this court in exceptional circumstances”), §21 (treat case stated as a claim for judicial review, “dispense with the necessary formalities and deal with the matter on the basis of the materials before the court”); Westminster City Council v 48

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Owadally [2017] EWHC 1092 (Admin) [2017] 1 WLR 4350 at §22 (treating case stated as judicial review of magistrates’ court and Crown Court); R (Gillan) v Winchester Crown Court [2007] EWHC 380 (Admin) [2007] 1 WLR 2214 at §15 (case stated excluded by statute, so permitting claim to proceed as judicial review); Farley v Child Support Agency [2005] EWCA Civ 869 [2005] 3 FCR 343 (CA reconstituting case as judicial review, where had purported to allow an appeal by case stated, but where no jurisdiction); Aboutboul v Barnet LBC [2020] EWHC 285 (Admin) [2020] ACD 38 at §27 (declining to treat out-of-time case stated as judicial review). 3.2.13 High Court reconstituting extradition appeal as judicial review. Celczynski v Polish Judicial Authority [2019] EWHC 3450 (Admin) [2020] 4 WLR 21 at §§14, 25 (where grounds not available in extradition appeal, court converting the proceedings into judicial review and allowing the claim); R (Lazarov) v Bulgaria [2018] EWHC 3050 (Admin) at §§15-19 (extradition appeal court reconstituting as judicial review court, so as to remit for reconsideration afresh, a remedy not available on the appeal); Chen v Government of Romania [2007] EWHC 520 (Admin) [2008] 1 All ER 851 at §66 (by agreement, treating extradition appeal as judicial review and waiving all requirements). 3.2.14 High Court reconstituting itself as CACD. R (Gopee) v Southwark Crown Court [2019] EWHC 568 (Admin) at §12 (DC reconstituting itself as CACD (Court of Appeal Criminal Division) to quash an unlawfully imposed victim surcharge); Lenehen v SSHD [2002] EWHC 1599 (Admin) (DC reconstituting itself as CACD, so as to reduce a sentence, having dismissed a claim for judicial review regarding the release date calculation). R v Crown Court at Manchester, ex p H [2000] 1 WLR 760 (DC allowing judicial review of Crown Court judge’s decision to discharge restriction order), 769H-770B (instead of remitting, “it is pragmatic in the present case to take a different course”, namely reconstitution as CACD, to make substitutionary order). 3.2.15 Judicial review of refusal to state a case: deciding the substantive issue (Sunworld). Sunworld Ltd v Hammersmith & Fulham LBC [2000] 1 WLR 2102 at 2106F-H (Simon Brown LJ: “Where a court … refuses to state a case, then the party aggrieved should without delay apply for permission to bring judicial review, either (a) to mandamus it to state a case and/or (b) to quash the order sought to be appealed. (2) If the court below has already (a) given a reasoned judgment containing all the necessary findings of fact and/or (b) explained its refusal to state a case in terms which clearly raise the true point of law in issue, then the correct course would be for the single judge, assuming he thinks the point properly arguable, to grant permission for judicial review which directly challenges the order complained of, thereby avoiding the need for a case to be stated at all. (3) If the court below has stated a case but in respect of some questions only … the better course may be to apply for the case stated to be amended unless again, as here, there already exists sufficient material to enable the Divisional Court to deal with all the properly arguable issues in the case. (4) This court for its part will adopt whatever course involves the fewest additional steps and the least expense, delay and duplication of proceedings. Whether … it will be possible to proceed at once to a substantive determination of the issues must inevitably depend in part upon whether all interested parties are represented and prepared, and in part upon the availability of court time”); R (Roberts) v Leicester Crown Court [2020] EWHC 1783 (Admin) at §§26-27 (applying Sunworld, adopting the “pragmatic solution” of deciding the arguable substantive issue arising out of the underlying decision of the defendant court, it having wrongly refused to state a case; rather than the “absurdly inconvenient” procedure of ordering a case to be stated for determination as an appeal at a subsequent hearing; where no facts requiring determination and defendant court’s reasons available); R (Carter) v Chelmsford Crown Court [2019] EWHC 1484 (Admin) at §10 (where wrong to refuse to state a case, judicial review court can proceed to deal with the appeal by case stated); R (DPP) v Stratford Magistrates’ Court [2017] EWHC 1794 (Admin) [2018] 4 WLR 47 at §31; cf R (Friedman) v Snaresbrook Crown Court [2019] EWHC 2209 (Admin) [2019] ACD 103 at §13 (granting judicial review and directing the Crown Court to state a case, setting out findings and evidence on which they were based); R (Pegram) v Bristol Crown Court [2019] EWHC 965 (Admin) (granting judicial review and ordering statement 49

THE NATURE OF JUDICIAL REVIEW

of a case); R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin) [2015] PTSR 1045 at §32); {21.5.13} (judicial review of refusal to state a case: direction for substantive challenge). 3.2.16 Procedural flexibility: CA reconstituting itself. R (Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWCA 594 at §3 (CA hearing appeal from refusal of interim relief, also constituting itself as DC pursuant to ss.9 and 66 of the Senior Courts Act 1981, to deal with permission for judicial review); R v Aziz [2019] EWCA Crim 1568 at §57 (CA reconstituting itself as DC to dismiss judicial review and discharge anonymity order); R v Bangar [2019] EWCA Crim 1533 at §6 (where CA had no power to quash conviction after defective committal, reconstituting as DC to allow judicial review, then presiding judge of CA reconstituting as a district judge to impose an absolute discharge); R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394 at §30 (CA reconstituting itself as DC to hear judicial review, where no appellate jurisdiction); R v Robinson [2017] EWCA Crim 936 [2018] QB 941 at §23 (CACD reconstituting as DC to quash adjudication imposing additional days to extend sentence); R v Boggild [2011] EWCA Crim 1928 [2012] 1 WLR 1298 at §5 (CACD reconstituting itself as CA Civil Division); R v Abouderbala [2012] EWCA Crim 1458 at §12 (where appellant’s committal to the Crown Court for sentence was made without jurisdiction, CACD reconstituting as DC: “We grant permission to apply for judicial review, dispense with the issue and service of the claim form, abridge all necessary time limits and quash the committal”), §13 (member of the CA sitting as district judge and imposing sentence); Chief Adjudication Officer v Foster [1993] AC 754, 761C-D (CA judge acting as first-instance judge to grant permission but refuse the substantive application, to enable the claimant “to invoke the original jurisdiction of the Court of Appeal to entertain an application for judicial review”), applied in Johnson v Valks [2000] 1 WLR 1502, 1508A; R v Miall [1992] QB 836 and R v Lee [1993] 1 WLR 103, 109B-C (CA reconstituting itself as DC); Bowman v Fels [2005] EWCA Civ 226 [2005] 1 WLR 3083 at §16 (CA simply proceeding, noting that it could have used the device of a judicial review claim, with all the formalities, “in less than ten minutes”); SSHD v Dahir [1995] Imm AR 570, 574-576 (CA simply treating appeal from IAT as application for judicial review, without any need for procedural devices). 3.2.17 Court acting to preserve appeal rights. R (Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWCA 594 at §3 (CA hearing appeal from refusal of interim relief, also constituting itself as DC to deal with permission for judicial review, so as not to deny claimant the right of appeal if permission refused, referring to R (MD (Afghanistan) v SSHD [2012] EWCA Civ 194 [2012] 1 WLR 2422 at §20); Interfact Ltd v Liverpool City Council [2010] EWHC 1604 (Admin) [2010] EWCA Crim 1486 [2011] QB 744 at §§89-90 (granting permission but dismissing substantively: “we are satisfied that the issue of law raised by the applicants is of general interest, and that it would therefore be inappropriate to refuse the applications and so deprive the applicants of the opportunity to interest the Supreme Court in the issue”); R (McAtee) v Secretary of State for Justice [2018] EWCA Civ 2851 [2019] 1 WLR 3766 at §55 (declining to grant permission to appeal and dismiss substantively, where CA having no jurisdiction and claimant could commence fresh judicial review); R v DPP, ex p Camelot Group Plc (1998) 10 Admin LR 93, 105E-F (although CA regarding judicial review as clearly inapt, granting permission and dismissing the substantive application, so that the arguments might go further); R v Parliamentary Commissioner for Standards, ex p Al Fayed [1998] 1 WLR 669 (given importance of issue, CA treating as substantive application, to leave open possible appeal to HL); R v Oxfordshire County Council, ex p Sunningwell Parish Council [2000] 1 AC 335, 349B-C (CA granting permission, but in light of CA authority which may have been wrongly decided, refusing substantive application and granting permission to appeal to HL); Taylor v Lawrence [2002] EWCA Civ 90 [2003] QB 528 at §76 (permission to appeal to CA granted to preserve right of appeal to the HL); Westminster City Council v O’Reilly [2003] EWCA Civ 1007 [2004] 1 WLR 195 at §§20-21 (leaving open possibility of judicial review where High Court case stated decision final and unappealable); cf Gibson v United States of America [2007] UKPC 50

P3 PROCEDURAL RIGOUR & FLEXIBILITY

52 [2007] 1 WLR 2367 (wrong to recharacterise habeas corpus decision as judicial review so as to permit jurisdiction on appeal, overruling Cartwright v Superintendent of Her Majesty’s Prison [2004] UKPC 10 [2004] 1 WLR 902). 3.2.18 Dual listing: Court sitting as DC and CA. R v Serumaga [2005] EWCA Crim 370 [2005] 1 WLR 3366 at §5 (three-judge court sitting as DC (judicial review) and CACD (criminal appeal), where uncertainty as to correct mode); R v SSHD, ex p Probyn [1998] 1  WLR 809 (sitting as DC on judicial review and CACD as to appeal); Interfact Ltd v Liverpool City Council [2010] EWHC 1604 (Admin) [2010] EWCA Crim 1486 [2011] QB 744 (sitting as CACD and DC); R (SSHD) v Immigration Appeal Tribunal [2001] EWHC Admin 1067 [2002] INLR 116 at §8 (CA sitting as a DC to hear linked judicial review with immigration appeal). 3.2.19 Dual listing: Court sitting as DC and Visitors. R v Council of Legal Education, ex p Eddis (1995) 7 Admin LR 357 (judges sitting both as DC on judicial review and Visitors to the Inns of Court). 3.2.20 Dual listing: Court hearing judicial review and non-judicial review claim. Re Rail Franchising Litigation [2019] EWHC 2047 (TCC) at §5 (appropriateness of linked judicial review and Part 7 private law claims dealt with at single hearing on the Part 7 claims) (CA is [2019] EWCA Civ 2259 [2020] 3 All ER 948); Channel Tunnel Group v Secretary of State for Transport [2019] EWHC 419 (TCC) at §1 (procurement challenges by judicial review and Part 7 listed together); Administrative Court: Judicial Review Guide (2020 edition) at §5.7 (procedure where procurement judicial review linked to claim in TCC); State of Mauritius v CT Power Ltd [2019] UKPC 27 at §39 (hearing judicial review and damages claim together described a “case management option which could be explored in an appropriate case if it were clearly in the interests of justice”); Edenred (UK Group) Ltd v HM Treasury [2015] UKSC 45 [2015] PTSR 1088 at §25 (judicial review and Part 7 claim in a procurement context “consolidated”); British Airways Board v Laker Airways Ltd [1984] QB 142, 184F-185A (hearing claim for injunction and cross-claim for judicial review); R v Football Association Ltd, ex p Football League Ltd [1993] 2 All ER 833 (hearing judicial review and cross-claim by originating summons); West Glamorgan County Council v Rafferty [1987] 1 WLR 457 (hearing judicial review and possession claim); R (Carvill) v Commissioners of Inland Revenue [2002] EWHC 1488 (Ch) [2002] STC 1167 (hearing judicial review and restitution claim together). 3.2.21 Dual listing: judicial review and Family Div/Court of Protection proceedings. Re R (Adult: Medical Treatment) [1996] 2 FLR 99, 104D-E (judicial review and originating summons listed together by Family Division judge); Re T [1994] Imm AR 368 (hearing Family Division residence proceedings and judicial review); C v A Local Authority [2011] EWHC 1539 (Admin) (2011) 14 CCLR 471 at §10 (judicial review and Court of Protection proceedings heard together). 3.2.22 Dual listing: judicial review and Chancery Div proceedings. Soden v Burns [1996] 3 All ER 967 (judge sitting simultaneously in Chancery Division (Companies Court proceedings) and Queen’s Bench (judicial review)); Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705 (originating summons and Chancery writ action heard with judicial review); R (Thompson) v Fletcher (HM Inspector of Taxes) [2002] EWHC 1447 (Ch) [2002] EWHC 1448 (Admin) [2002] STC 1149 (hearing Revenue’s case stated appeal and taxpayer’s cross-claim for judicial review). 3.2.23 Dual listing: Court hearing judicial review and habeas corpus. Cosar v Governor of HMP Wandsworth [2020] EWHC 1142 (Admin) [2020] ACD 80 at §24 (court hearing habeas corpus with rolled-up judicial review hearing, “to enable the court to deal with the cases and make a final disposal”); Jane v Westminster Magistrates’ Court [2019] EWHC 394 (Admin) [2019] 4 WLR 95 at §§45, 68 (habeas corpus treated as claim for judicial review in accordance with CPR 87.5(d)); R v Barking Havering and Brentwood Community Healthcare NHS Trust

51

THE NATURE OF JUDICIAL REVIEW

[1999] 1 FLR 106, 117B (although habeas corpus not a remedy available in judicial review, where both pursued, they should be heard together using the same documents); AttorneyGeneral of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; R v Governor of Brixton Prison, ex p Walsh [1985] AC 154; In re Schmidt [1995] 1 AC 339. 3.2.24 Dual listing: Court hearing judicial review and appeal. R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin) at §1 (appeal and judicial review heard together); Begum v Special Immigration Appeals Commission [2020] EWCA Civ 918 (appeal from decisions sitting as Admin Court and SIAC); R (Mahmood) v Upper Tribunal [2020] EWCA Civ 717 at §33 (CA hearing immigration appeals and Cart judicial review claim together); R (X) v General Medical Council [2019] EWHC 493 (Admin) at §5 (hearing together GMC’s appeal against sanction and X’s judicial review of refusal of anonymisation); R (TN (Vietnam)) v SSHD [2018] EWCA Civ 2838 [2019] 1 WLR 2647 at §1 (case-management hearing directing that CA should sit simultaneously to hear linked judicial review (as a DC) and appeal); R (Tapecrown Ltd) v Crown Court at Oxford [2018] EWHC 1450 (Admin) [2019] 1 WLR 3394 at 3397E (appeal and judicial review listed to be heard together; CA holding no appellate jurisdiction; reconstituting and dealing with judicial review as DC); R (MM (Lebanon)) v SSHD [2017] UKSC 10 [2017] 1 WLR 771 (judicial review claims and entry clearance appeal heard together); R (Emu) v Westminster Magistrates’ Court [2016] EWHC 2561 (Admin) [2016] ACD 122 (judicial review and case stated appeal, raising similar issues, heard together); R (Griffin) v City of Westminster Magistrates’ Court [2011] EWHC 943 (Admin) [2012] 1 WLR 270 (judicial review and extradition appeal); Re G (A Child) [2008] EWCA Civ 86 at §13 (judicial review of pathway plan and appeal against interim care order). 3.2.25 Dual listing: Court hearing claim, and cross-claim, for judicial review. R (Commissioner of Police of the Metropolis) v Independent Police Complaints Commission [2015] EWCA Civ 1248 [2016] PTSR 891 at §§13-14 (MPC seeking judicial review to restrain IPCC from reopening an investigation; complainant also seeking judicial review to quash IPCC’s previous final report, to ensure reinvestigation; claims heard together); R (BBC) v Information Tribunal [2007] EWHC 905 (Admin) [2007] 1 WLR 2583 (court hearing judicial review and cross-judicial review, and also an appeal, together). 3.2.26 Dual listing: judicial review and statutory review. R (Ikram) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1869 (Admin) at §7 (judicial review and statutory review linked for hearing together, because of “jurisdictional issues”); R (NPower Direct Ltd) v Gas and Electricity Markets Authority [2018] EWHC 3576 (Admin) [2019] ACD 35 at §§1, 70 (judicial review and statutory review). R (Sutovic) v HM Coroner for Northern District of Greater London [2006] EWHC 1095 (Admin) (judicial review and statutory application for new inquest). 3.2.27 Dual listing: other. Rees v Crane [1994] 2 AC 173 (PC hearing judicial review and constitutional motion); R v Comptroller of Patents, Designs and Trade Marks, ex p Lenzing AG [1997] EuLR 237 (judicial review and application to Patent Court); R v Liverpool Magistrates’ Court, ex p Ansen [1998] 1 All ER 692 (judicial review and application relating to confiscation order). 3.2.28 Procedural flexibility: specific topics. {5.4.1} (new decisions) {5.4.3} (amended grounds where replacement decision at the permission stage) {5.4.8} (rolling judicial review) {9.1.16} (HRA and issues of temporality) {10.3.9} (breach of claimant duty of candour) {17.2.18} (fresh evidence after draft judgment circulated) {18.1.11} (costs) {19.3.7} (failure to file an AOS) {21.2.26} (turning permission hearing into substantive hearing) {22.1.6} (late defendant’s grounds) 52

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{22.1.18} {22.1.26} {23.2.8} {23.2.9} {25.1.15} {27.3.11} {38.2.11}

(permission for late evidence) (permission to amend judicial review grounds) (amendment of judicial review grounds in appellate court) (new ground/point advanced on appeal hearing) (allowing damages claim to continue) (procedural exclusivity: avoiding barren procedural dispute) (standing and claimant identity/substitution)

53

P4 Materiality.6 A claim may fail if lacking substance: a statutory HL:NSD test accompanies established principles including as to futility, utility and prematurity. 4.1 Highly likely: not substantially different (HL:NSD) 4.2 Materiality/absence of prejudice at common law 4.3 Futility 4.4 Cautious approach to materiality, prejudice and futility 4.5 Utility: hypothetical/academic issues 4.6 Prematurity

4.1 Highly likely: not substantially different (HL:NSD). A statutory materiality test enacted by Parliament in 2015 operates to replace the pre-existing common law materiality test (‘inevitability’), except where disapplied on certified exceptional public interest grounds. Under the statutory test, the Court will refuse permission or a remedy (relief) if persuaded that it is highly likely that the outcome for the claimant would not have been substantially different had the conduct complained of not occurred. The test is applied cautiously. That circumspection reflects the Court’s constitutional function, and the cardinal need to secure the scope of judicial review required by the rule of law. It also reflects the golden rule about avoiding the ‘forbidden substitutionary approach’. The threshold remains high. The law, and the rule of law, place a high value on the primary decision-making function remaining with the defendant public authority with an open mind and adopting a legally proper approach. 4.1.1 HL:NSD test part of the 2015 reforms. Criminal Justice and Courts Act 2015 s.84 (introduction of test of “likelihood of substantially different outcome for [claimant]”), s.84(1)-(3) (making the amendments to s.31 of the Senior Courts Act 1981, in relation to the High Court’s judicial review jurisdiction: brought into force from 13 April 2015), s.84(4)-(6) (making equivalent amendments to s.15 of the Tribunals, Courts and Enforcement Act 2007, in relation to the Upper Tribunal’s judicial review jurisdiction: brought into force from 8 August 2016); {2.2.11} (HL:NSD test and UTJR); {4.2.3} (materiality at common law: inevitability test (Simplex)); {P15} (the forbidden method). 4.1.2 HL:NSD test at the permission stage. Senior Courts Act 1981 s.31(3C) (“When considering whether to grant [permission] to make an application for judicial review, the High Court – (a) may of its own motion consider whether the outcome for the [claimant] would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the defendant asks it to do so”), (3D) (“If, on considering that question, it appears to the High Court to be highly likely that the outcome for the [claimant] would not have been substantially different, the court must refuse to grant [permission]”). 4.1.3 HL:NSD test: refusal of a remedy. Senior Courts Act 1981 s.31(2A) (“The High Court (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”) (s.31(4) empowers the Court on judicial review to award damages, restitution or recovery of a sum due); R (H) v Secretary of State for Justice [2015] EWHC 4093 (Admin) [2016] ACD 56 (where HL:NSD test applicable and satisfied, s.31(2A) preventing the grant of a declaration of unlawfulness). 6The

equivalent part in a previous edition was relied on in Epoch Properties [2004] JCA 156 (Jersey Court of Appeal) (Beloff JA); R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §134 (Underhill, Hickinbottom, Singh LJJ).

P4 MATERIALITY

4.1.4 HL:NSD test – meaning of ‘the conduct complained of’. Senior Courts Act 1981 s.31(8) (“In this section ‘the conduct complained of’, in relation to an application for judicial review, means the conduct (or alleged conduct) of the defendant that the applicant claims justifies the High Court in granting relief”). 4.1.5 Disapplication of the HL:NSD test: certified exceptional public interest. Senior Courts Act 1981 s.31(2B) (“The court may disregard the requirements of subsection (2A) (a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest”); (2C) (“If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied”); (3E) (“The court may disregard the requirement in subsection (3D) if it considers that it is appropriate to do so for reasons of exceptional public interest”); (3F) (“If the court grants leave in reliance on subsection (3E), the court must certify that the condition in subsection (3E) is satisfied”); R (VIP Communications Ltd) v SSHD [2019] EWHC 994 (Admin) [2019] ACD 69 at §88 (appropriate here to disregard the HL:NSD test given “the exceptional public interest in ensuring that subordinate legislation made by the Executive which is ultra vires the power conferred upon it by Parliament is identified and declared to be such”); R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §277 (CA would have certified exceptional public interest: “this is one of those cases in which it would be right for this court to grant a remedy on grounds of ‘exceptional public interest’. … The legal issues are of the highest importance. The infrastructure project under consideration is one of the largest”); R (Driver) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin) at §166 (would have certified here). 4.1.6 Scope and reach of HL:NSD test. R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860 [2018] 1 WLR 5161 at §47 (HL:NSD test applicable to substantive, not just procedural or technical, conduct); R (NN) v SSHD [2019] EWHC 1003 (Admin) [2019] ACD 71 (s.31(2A) not a basis for declining to extend the claimants’ interim relief so as to benefit the affected class) at §19 (“Section 31(2A) is aimed at academic claims where the conduct complained of would have made no difference to the final outcome of the case. It is not concerned with the granting of interim injunctive relief”). 4.1.7 HL:NSD test replacing common law inevitability test. {4.2.3} (materiality at common law: inevitability test (Simplex))); R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §272 (Lindblom, Singh and Haddon-Cave LJJ:“The new statutory test modifies the Simplex test in three ways. First, the matter is not simply one of discretion, but rather becomes one of duty provided the statutory criteria are satisfied. This is subject to a discretion vested in the court nevertheless to grant a remedy on grounds of ‘exceptional public interest’. Secondly, the outcome does not inevitably have to be the same; it will suffice if it is merely ‘highly likely’. And thirdly, it does not have to be shown that the outcome would have been exactly the same; it will suffice that it is highly likely that the outcome would not have been ‘substantially different’ for the claimant”); R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §137 (NSD test described as “evidently intended to modify, at least to some extent and at least in some circumstances, the common law test of materiality, and specifically the threshold of ‘inevitability’”); Asiweh v SSHD [2019] EWCA Civ 13 at §24 (“Inevitability is the test at common law. It is a demanding test. It is the test to be applied in this case because the claim was brought before [the] … new statutory test was introduced”); R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860 [2018] 1 WLR 5161 at §53 (common law test was “whether there was any realistic possibility of the … decision being different but for the error of law”); R (L) v Director of Public Prosecutions [2020] EWHC 1815 (Admin) at §38 (“a significant change from the previous position at common law”); Mayor of London v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1176 (Admin) at §105(ii) (inevitability test applicable on statutory review). 4.1.8 HL:NSD test warrants a flexible/contextual application. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §273 (“Much will depend on the particular facts of the case before the court”); R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 55

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1 WLR 4647 at §141 (“there might be thought to be room for a flexible approach depending on the nature of the unlawfulness alleged”). 4.1.9 HL:NSD test: nature of the task. R (Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin) [2018] ICR 269 at §89 (Sales LJ: the test calls for “an evaluation of the counter-factual world in which the identified unlawful conduct by the public authority is assumed not to have occurred”); R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860 [2018] 1 WLR 5161 at §55 (court “must necessarily undertake its own objective assessment”); R (Adamson) v Kirklees Metropolitan Borough Council [2019] EWHC 1129 (Admin) at §142 (Kerr  J: “The ‘highly likely’ test is not always easy to apply. It expresses a standard somewhere between the civil standard (the balance of probabilities) and the criminal standard (beyond reasonable doubt); with the complication that the standard must be applied to a hypothetical or ‘counterfactual’ situation that did not occur”), §143 (“The court has the unenviable task of (i) assessing objectively the decision and the process leading to it, (ii) identifying and then stripping out the ‘conduct complained of’, (iii) deciding what on that footing the outcome for the applicant is ‘highly likely’ to have been and/or (iv) deciding whether, for the applicant, the ‘highly likely’ outcome is ‘substantially different’ from the actual outcome”) (CA is [2020] EWCA Civ 154). 4.1.10 HL:NSD test: the constitutional dimension. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §273 (“Parliament has not altered the fundamental relationship between the courts and the executive. … Courts should … not lose sight of their fundamental function, which is to maintain the rule of law”); {1.3.5} (cardinal principle: Courts secure the scope of judicial review required by the rule of law). 4.1.11 Cautious approach to HL:NSD test: general observations. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §273 (Lindblom, Singh and HaddonCave LJJ: without giving “exhaustive guidance on how these provisions should be applied. Much will depend on the particular facts of the case before the court”, observing: “the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is ‘highly likely’ that the outcome would not have been ‘substantially different if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law. Furthermore, although there is undoubtedly a difference between the old Simplex test and the new statutory test, ‘the threshold remains a high one’ (see the judgment of Sales LJ, as he then was, in R (Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin) [2018] ICR 269 at §89”), applied in R (L) v Director of Public Prosecutions [2020] EWHC 1815 (Admin) at §39; {4.4} (cautious approach to materiality, prejudice and futility). 4.1.12 Cautious approach to HL:NSD test: a ‘high threshold’. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §273 (“the threshold remains a high one”) and R (L) v Director of Public Prosecutions [2020] EWHC 1815 (Admin) at §38 (“the threshold remains a high one”), each citing R (Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin) [2018] ICR 269 at §89 (Sales LJ); R (Glencore Energy UK Ltd) v HMRC [2017] EWHC 1476 (Admin) at §120 (Green J: “the Court must bear in mind the high standard of proof set by the Act” involving “a high degree of confidence that the relief … would not alter the outcome”) (CA is [2017] EWCA Civ 1716 [2017] 4 WLR 213). 4.1.13 Cautious approach to HL:NSD test: onus on the defendant. R (Bokrosova) v Lambeth LBC [2015] EWHC 3386 (Admin) [2016] PTSR 355 at §88 (Laing J: “in accordance with general principle, that he who asserts must prove … if the [defendant] asserts that 56

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section 31(2A) applies, it must satisfy me that [it] does”); R (Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin) [2018] ICR 269 at §90 (defendant having “failed to persuade me”); R (Kerswell) v Lewisham LBC [2019] EWHC 754 (Admin) at §47 (“quite impossible … for the council to be able to discharge the burden that it is highly likely that the same decision would have resulted”). 4.1.14 Cautious approach to HL:NSD test: importance of lawful approach/fair procedure. R (Grinham) v Parole Board [2020] EWHC 2140 (Admin) at §72 (Spencer J: “this is a classic case of the need for justice not only to be done but to be seen to be done”); R (Williams) v Powys County Council [2017] EWCA Civ 427 [2018] 1 WLR 439 at §72 (Lindblom LJ: “in this case the interests of a lawfully taken decision must prevail, as normally they should”); R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §141 (describing “a flexible approach depending on the nature of the unlawfulness alleged, so that the factors identified by Bingham LJ in Cotton remain relevant to the assessment”), a reference to R v Chief Constable of the Thames Valley Police, ex p Cotton [1990] IRLR 344, 352 (Bingham LJ) {4.4.3}; R (Williams) v Caerphilly County Borough Council [2019] EWHC 1618 (Admin) at §37 (“no … secure basis” for finding HL:SND test met here, where breach of “duty … directed to the decision-making process [whose] premise … is that process is important because it is capable of affecting substantive outcomes”) (not challenged on appeal [2020] EWCA Civ 296 [2020] PTSR 1130 at §5). 4.1.15 Cautious approach to HL:NSD test: questions of judgment for the public authority. R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin) [2018] PTSR 26 at §76 (“the issues which will have to be considered by the defendant are quintessentially ones of … judgment, which fall within its province rather than the court’s”); R (Williams) v Powys County Council [2017] EWCA Civ 427 [2018] 1 WLR 439 at §72 (“the court should be very careful to avoid trespassing into the domain of the decision-maker”); R (Watermead Parish Council) v Aylesbury Vale District Council [2017] EWCA Civ 152 [2018] PTSR 43 at §51 (“these are matters of fact and planning judgment for the … local planning authority, directing itself as it should on the relevant planning policies – not for the court in the exercise of its discretion as to the granting of relief”); R (Thurloe Lodge Ltd) v Royal Borough of Kensington & Chelsea [2020] EWHC 2381 (Admin) at §27 (David Elvin QC: “Whilst there may be aspects of the case which I can consider under the provisions of s.31(2A)-(2C) I will only do so if I can fairly determine the issues without entering [the] ‘forbidden territory’ and bearing in mind that the threshold remains a high one”); {P15} (the forbidden method); {15.1} (‘soft’ review: the forbidden substitutionary approach); {15.5} (‘Court does not substitute its own judgment’). 4.1.16 Cautious approach to HL:NSD test: speculation. R (Davison) v Elmbridge Borough Council [2019] EWHC 1409 (Admin) at §71 (“it is not for the court to speculate” as to a “judgment that Parliament has entrusted to the Committee, and not to the Court”); R (VIP Communications Ltd) v SSHD [2019] EWHC 994 (Admin) [2019] ACD 69 at §87 (“it is not possible to know or predict to a degree of high likelihood what the Secretary of State would have done”); R (Guerry) v Hammersmith and Fulham LBC [2018] EWHC 2899 (Admin) at §55 (“It is a matter of speculation”). 4.1.17 Cautious approach to HL:NSD test: positing open-minded consideration by defendant. R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 (position where flawed consultation) at §141 (“the Lord Chancellor would have had to consider the responses to the consultation with an open mind … the product of consultation must be conscientiously taken into account when the ultimate decision is taken. It would be wrong in principle for the court in a case where the hypothetical decision would have been made on the basis of materially different information and advice from the actual decision to make a judgment expressed as a high likelihood about what the Lord Chancellor would have decided. To do so would involve trespassing into the domain of the decision-maker”); R (S) v Camden LBC [2018] EWHC 3354 (Admin) at §82 (apply NSD test “assuming a local authority prepared to listen and apply the principles behind the … Act”); R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin) [2018] PTSR  26 at §76 57

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(fairness would mean “defendant will listen with an open mind”); R (Peters) v Haringey LBC [2018] EWHC 192 (Admin) [2018] PTSR 1359 at §187 (NSD submission “quite a difficult contention in the context of a duty to consult with an open mind”). 4.1.18 Cautious approach to HL:NSD test: evidence/absence of evidence. R (Harvey) v Mendip District Council [2017] EWCA Civ 1784 at §47 (Sales LJ: “a court will be appropriately careful in reviewing evidence produced by a decision-maker long after the decision to say how they would have proceeded … and will evaluate it carefully in light of the contemporaneous materials in the case”; “it is nonetheless telling that none of the decision-makers in this case have felt able to put before the court any witness statements to support the contention”); R (Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin) [2018] ICR 269 at §91 (witness statement “an exercise in speculation”, albeit “informed by a background understanding”: “selfinterested speculations … by an official of the public authority which has been found to have acted unlawfully should be approached with a degree of scepticism … especially … where the public authority has not provided a full evidential picture of all matters … to enable the court to make a critical evaluation of the assertions made … about the counter-factual position”); cf A v Kirklees Metropolitan Borough Council [2001] EWCA Civ 582 [2001] ELR 657 at §17 (“not appropriate” to express a view on whether omitted evidence would (at common law) have made a difference, the issue turning “not on what the decision-maker may with hindsight say he would have made of the evidence but on the objective question whether the evidence was capable of having made a difference”), §20 (“not a topic for ex post facto evidence”). 4.1.19 HL:NSD test satisfied: illustrations. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §119 (“an error of no real consequence”); R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 at §177 (CA “satisfied” that NSD test applicable); Foley v Cardiff City Council [2020] EWHC 2182 (Admin) at §56 (test satisfied even if PSED {55.2.6} breach); R (Advearse) v Dorset Council [2020] EWHC 807 (Admin) at §31 (“only one realistic outcome”); R (Shropshire and Wrekin Fire Authority) v SSHD [2019] EWHC 1967 (Admin) [2019] PTSR 2052 at §86 (“inevitable” that defendant would have come to same conclusion had she applied the right test); R (Wingfield) v Canterbury City Council [2019] EWHC 1974 (Admin) at §80 (“the decision would inevitably have been the same”); R (Day) v Shropshire Council [2019] EWHC 3539 (Admin) at §120 (highly likely that same outcome if a sufficient inquiry had been undertaken); R (Hudson) v Royal Borough of Windsor and Maidenhead [2019] EWHC 3505 (Admin) at §91 (highly likely that decision not substantially different if habitats assessment had been carried out); Pagham Parish Council v Arun District Council [2019] EWHC 1721 (Admin) at §75 (court’s “assessment of the highly likely outcome based firmly on the evidence”); R (Mpaini) v Highbury Corner Magistrates’ Court [2019] EWHC 874 (Admin) at §13 (no “realistic prospect of a materially different outcome” if, as statutorily required, two magistrates had heard bail application rather than one); WM Morrisons Supermarket Plc v Hounslow LBC [2018] EWHC 3426 (Admin) at §74 (“very modest non-compliance with … legitimate expectation” where “no unfairness in practice” and “highly likely … that the outcome … would not have been different”); R (Howell) v Waveney District Council [2018] EWHC 3388 (Admin) at §65 (claimant not having identified any significant effects which might arise); R (Cairns) v Hertfordshire County Council [2018] EWHC 1050 (Admin) [2019] Env LR 6 at §85 (“Planning permission would still have been granted”); R (McCarthy and Stone Retirement Lifestyles Ltd) v Mayor of London [2018] EWHC 1202 (Admin) [2018] PTSR 1996 at §70 (“the outcome would not have been one whit different”); R (Peters) v Haringey LBC [2018] EWHC 192 (Admin) [2018] PTSR 1359 at §201 (“wholly satisfied that compliance would not have made the slightest difference to the decisions”); R (Wyatt) v Thames Valley Police [2018] EWHC 2489 (Admin) at §200 (“no doubt whatsoever”); R (Harris) v Broads Authority [2016] EWHC 799 (Admin) [2017] 1 WLR 567 at §98 (“certain” what “the authority would still have decided”), §112. 4.1.20 HL:NSD test not satisfied: illustrations. R (Driver) v Rhondda Cynon Taf County Borough Council [2020] EWHC 2071 (Admin) at §165 (“simply not possible” to say); R (L) v Director of Public Prosecutions [2020] EWHC 1815 (Admin) at §40 (“quite impossible 58

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to say”); R (AW) v St George’s, University of London [2020] EWHC 1647 (Admin) at §111 (“not persuaded”); R (Samuel) v Parole Board [2020] EWHC 42 (Admin) at §33 (“I cannot adjudge what the panel would have thought … had [matters] been considered and evaluated in accordance with the correct lawful test”); R (Institute for Chartered Accountants in England and Wales) v Lord Chancellor [2019] EWHC 461 (Admin) at §121 (“unable to conclude” that highly likely “that the outcome would have been the same”); R (RD (A Child) v Worcestershire County Council [2019] EWHC 449 (Admin) at §101 (“quite impossible for me to decide that, had the Defendant devised and implemented a transitional plan, the result for the Claimants would be no different”); R (Gare) v Babergh District Council [2019] EWHC 2041 (Admin) [2019] ACD 112 at §55 (“impossible to conclude that it is highly likely it would have resolved to grant planning permission if it had properly directed itself”); R (Chief Constable of British Transport Police) v Police Appeals Tribunal [2019] EWHC 73 (Admin) at §64 (“I am wholly unable to say that it is highly likely that the outcome … would not have been substantially different if the error … had not occurred”); R (Tate) v Northumberland County Council [2018] EWCA Civ 1519 at §46 (to “withhold an order to quash the planning permission [the court] would have to speculate on a lawful consideration of the proposal”); R (Chief Constable of Northumbria Police) v Police Misconduct Panel [2018] EWHC 3533 (Admin) at §76 (“shortcomings … go to the heart of the decision they had to make and the process by which they were to reach such decision”); Cemex (UK) Operations Ltd v Richmondshire District Council [2018] EWHC 3526 (Admin) at §67 (“I cannot possibly conclude that the outcome for the applicant would not have been substantially different. … These are … not matters upon which I could or should make any judgment”); R (Matthews) v City of York Council [2018] EWHC 2102 (Admin) at §79 (“would necessarily involve me deciding [the] planning issues”); R (Buckley) v Bath and East Somerset Council [2018] EWHC 1551 (Admin) [2019] PTSR 335 at §43 (“I cannot say that it is highly likely that the outcome for the claimant would not have been substantially different if the public sector equality duty had been complied with”). 4.1.21 Whether HL:NSD test is to be assimilated into the common law. Luton Community Housing Ltd v Durdana [2020] EWCA Civ 445 at §29 (court deciding whether to dismiss a public authority claim for possession on grounds of a PSED-breach, court applies the HL:NSD test as found in s.31(2A)), applying Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334 [2020] 1 WLR 584 at §25); TM v Metropolitan Housing Trust Ltd [2020] EWHC 311 (QB) at §§38, 71 (applying Forward); Guiste v Lambeth LBC [2019] EWCA Civ 1758 [2020] HLR 12 at §§72-73 (leaving open whether the HL:NSD test should be applied to County Court homelessness appeals “by analogy”).

4.2 Materiality7/absence of prejudice at common law. Judicial review courts have always asked whether there is ‘substance’ in the claim. A central aspect to this was a common law test of ‘materiality’, and the closely related question of absence of ‘prejudice’ (or ‘injustice’). A ‘public law wrong’ needs to be ‘material’ to have a vitiating consequence for the impugned public authority action. Put a different way, the Court will refuse a remedy if a ground for judicial review was ‘immaterial’. The common law materiality test was inevitability: would the decision inevitably have been the same had the ‘public law wrong’ not occurred? This is ground now largely occupied by the statutory materiality (HL:NSD) test. 4.2.1 Asking whether the judicial review challenge has ‘substance’. R (Raphael) v Highbury Corner Magistrates Court [2011] EWCA Civ 462 [2012] PTSR 427 at §57 (appropriate to exercise discretion to refuse to quash a decision where complaint one of “arid technicality”); R v SSHD, ex p Chugtai [1995] Imm AR 559, 567 (“This court has ample power in the exercise of its discretion to avoid giving [a remedy] in cases which do not appear to have 7The

equivalent paragraph in a previous edition was relied on in Re E [2006] NICA 37 (Northern Ireland Court of Appeal) at §108 (Campbell LJ); Mooreland [2014] NIQB 130 (Northern Ireland High Court) at §7 (Horner J); BM [2016] EWHC 3338 at §77(i) (Leigh-Ann Mulcahy QC).

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any merit”); Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334 [2020] 1 WLR 584 (no remedy where PSED breach not material), §25 (the court does not “act as some sort of mentor or nanny to decision-makers”; “The court’s approach should not ordinarily be that of a disciplinarian, punishing for the sake of it”); Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §72 (in deciding whether there is unlawful abdication, asking whether “the power was in reality exercised independently by the person to whom it was entrusted under the legislation”); R (Cornwall Waste Forum St Dennis Branch) v Secretary of State for Communities and Local Government [2012] EWCA Civ 379 at §41 (no “valid grounds” to justify quashing planning permission, where no basis put forward for impugning the substantive criterion applied, merely a dispute as to who should have conducted the assessment). 4.2.2 Asking whether ‘substantial compliance’. R (Elgizouli) v SSHD [2020] UKSC 10 [2020] 2 WLR 857 at §6 (“‘substantial compliance’ … not enough, where Data Protection Act required conscious consideration of statutory criteria”); R (Clientearth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin) at §218 (“in substance the requirements and objectives of [the] regulation … have been met”); R (Champion) v North Norfolk District Council [2015] UKSC 52 [2015] 1 WLR 3710 at §54 (“even where a breach of the EIA Regulations is established, the court retains a discretion to refuse relief if the applicant has been able in practice to enjoy the rights conferred by European legislation, and there has been no substantial prejudice”); {61.4.3} (whether intended vitiating consequence: Soneji); R (Akin) v Stratford Magistrates’ Court [2014] EWHC 4633 (Admin) [2015] 1 WLR 4829. 4.2.3 Materiality at common law: inevitability test (Simplex).8 R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §267 (“The Simplex test [[2017] PTSR 1041, 1060] … requires that, before a court may exercise its discretion to refuse relief, it must be satisfied that the outcome would inevitably have been the same even if the public law error identified by the court had not occurred”); R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §134 (“it is a long-established common law principle that a legally flawed decision will not be quashed where the errors are ‘immaterial’ because the result would ‘inevitably’ have been the same”); Mayor of London v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1176 (Admin) at §123 (inevitability test applied); Canterbury City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin) at §79 (on planning statutory review, “stringent test” of whether court “persuaded that the decision necessarily would have been the same”), §84 (“It is for the decision-taker … to demonstrate that the decision reached would inevitably have been the same”); R (Michael) v Governor of HMP Whitemoor [2020] EWCA Civ 29 [2020] 1 WLR 2524 at §51 (asking whether “it would be futile to quash the decision and remit it for reconsideration in the light of the now prevailing circumstances, because it is inevitable that the same decision will be taken”), §53 (“we are unpersuaded that the outcome of a fresh decision would necessarily be the same”); ZT (Kosovo) v SSHD [2009] UKHL 6 [2009] 1 WLR 348 at §18 (Lord Phillips, asking: “Might [the SSHD] have come to a different result …?”). 4.2.4 Materiality and mixed reasons/separable reasons. Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1175 at §§30, 33 (third reason “unscathed” and “alone was sufficient to uphold the … decision”); R v Broadcasting Complaints Commission, ex p Owen [1985] QB 1153, 1177A-B (“Where the reasons given by a statutory body for taking or not taking a particular course of action are not mixed and can clearly be disentangled, but where the court is quite satisfied that even though one reason may be bad in law, nevertheless the statutory body would have reached precisely the same decision on the other valid reasons, then this court will not interfere by

8The

equivalent paragraph in a previous edition was relied on in Gladman Developments Ltd v Secretary of State for Communities and Local Government [2017] EWHC 2448 (Admin) [2018] JPL 345 at §47 (Jay J).

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way of judicial review”); Suisse Security Bank and Trust Ltd v Governor of the Central Bank of The Bahamas [2006] UKPC 11 [2006] 1 WLR 1660 at §44 (applying Owen); R (UNISON) v First Secretary of State [2006] EWHC 2373 (Admin) [2007] LGR 188 at §17 (one reason given for pension changes wrong in law, but court satisfied that same conclusion would have been reached in any event as a matter of policy); R (Eliot) v Crown Court at Reading [2001] EWHC Admin 464 [2001] 4 All ER 625 at §7 (asking whether “two separate reasons were being given”); R v Housing Benefit Review Board for Allerdale District Council, ex p Doughty [2000] COD 462 (asking whether lawful strand of reasoning untainted by being interwoven with unlawful strand); {52.2.6} (mixed purposes/mixed motives: true and dominant purpose). 4.2.5 Materiality and procedural unfairness/flaw. R (Clientearth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin) at §§234-235, 240 (no procedural unfairness when letter was received by officials, without giving other parties an opportunity to comment, but Secretary of State was not aware of the letter or its contents in making the decision); Mayor of London v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1176 (Admin) at §76 (asking whether “procedural unfairness which materially prejudiced the [claimant]”); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2018] UKSC 3 [2018] 1 WLR 973 at §62 (“there is … no reason to believe that the ultimate decision would or could have been any different, if the consultation had specifically drawn attention to the possible existence of fishing rights”); R (Plant) v Lambeth LBC [2016] EWHC 3324 (Admin) [2017] PTSR 453 at §86 (whether breach of natural justice involving “something of substance” or “substantial prejudice”); R (Uplands Junior School Governors) v Leicester City Council [2013] EWHC 4128 (Admin) [2014] ELR 143 at §35 (“It is inconceivable that any attempt to engage with the governing body … would have led to a different outcome”); R (Abbey Mine Ltd) v Coal Authority [2008] EWCA Civ 353 at §44 (matters were not put but no material effect on outcome); R (O’Connell) v Parole Board [2007] EWHC 2591 (Admin) [2008] 1 WLR 979 at §24 (decision could not be affected by anything said at oral hearing); BX v SSHD [2010] EWCA Civ 481 [2010] 1 WLR 2463 at §59 (“Had an oral hearing taken place it would inevitably have led to the same result”); R (National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154 at §22 (defective consultation non-material since missing option could not rationally have been adopted); R (Smith) v North East Derbyshire Primary Care Trust [2006] EWCA Civ 1291 [2006] 1 WLR 3315 at §10 (defendant “would have to show that the decision would inevitably have been the same”); R (Lichfield Securities Ltd) v Lichfield District Council [2001] EWCA Civ 304 [2001] 3 PLR 33 at §23 (materiality goes to finding of unfairness, not to discretion as to remedy); Nwabueze v General Medical Council [2000] 1 WLR 1760, 1775-1776D (no unfairness because no “points of substance” to raise). 4.2.6 Materiality and misconstitution/flaw as to participation. R v Monopolies & Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763 (properly constituted group of members of the MMC would reach the same conclusion); R v Governors of Small Heath School, ex p Birmingham City Council (1990) 2 Admin LR 154, 166G-168D (although four governors ought to have disqualified themselves, DC entitled to refuse remedy where “the fact that they voted did not have any direct effect on the result of the ballot”); R v Surrey Coroner, ex p Wright [1997] QB 786, 797H (assessor ought not to have given evidence in coroner’s inquest but court “not persuaded that [it] will have made any material difference to the outcome”); cf R (B) v Head Teacher of Alperton Community School [2001] EWHC Admin 229 at §23 (where panel was “without jurisdiction” because not “duly constituted in accordance with the statute”, “no question of discretion arises. The claimant is entitled to [a remedy] as of right”). 4.2.7 Materiality: other grounds for judicial review. R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 at §§96-97, 129 (CA upholding DC’s conclusion that “even if there had been a continuing legitimate expectation …, that expectation was not breached or frustrated”, because the topic in question “was in fact immaterial to the Secretary of State’s decision”); R (BACI Bedfordshire Ltd) v Environment Agency [2019] EWCA Civ 1962 [2020] Env LR 16 at §53 (error in application for permit not having effect on decision or decision-making process), §60 (error did not influence the decision); Canterbury 61

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City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin) at §84 (materiality principles described as being “of equal application in a case involving a breach of European law obligations”); Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334 [2020] 1 WLR 584 (immateriality of breach a proper basis to reject PSED defence to possession proceedings); Jamaicans for Justice v Police Service Commission [2019] UKPC 12 at §28 (material failure of sufficient inquiry where “there was a reasonable prospect that a properly informed PSC might have made a different decision”); R (Legard) v Kensington and Chelsea RLBC [2018] EWHC 32 (Admin) [2018] PTSR 1415 at §133 (“Once an allegation of apparent bias has been made out, it is not obviated by the fact the apparent bias has had no operative effect upon the decision under challenge”); R (Mills) v Sussex Police [2014] EWHC 2523 (Admin) [2015] 1 WLR 2199 at §50 (Elias LJ: “the proposition that [a] warrant can only be set aside where the court is satisfied that the decision would have been different is wrong in principle”), §55 (question is “whether the information that it is alleged should have been given to the magistrate might reasonably have led him to refuse to issue the warrant”); {48.1.16} (materiality: need for material error of law/material misdirection); {56.1.7} (materiality and relevancy); {56.1.8} (materiality and irrelevancy); {49.3} (material error of fact); {49.3.1} (judicial review for material error of fact: recent illustrations); {49.3.5} (judicial review for ‘material error of fact’: other cases); {63.3.8} (materiality and apparent bias: operative bias). 4.2.8 Whether prejudice/injustice from flawed approach. R (AB) v SSHD [2018] EWCA Civ 383 [2018] Imm AR 1015 at §40 (Leggatt LJ: “although the Immigration Rules required the Secretary of State to refuse AB’s application for asylum rather than declare herself unable to decide it, there is no point in quashing her decision as the difference caused no prejudice to AB”); R (Ghadami) v Harlow District Council [2004] EWHC 1883 (Admin) [2005] LGR 24 at §73 (defective advertisement but “neither the claimant nor the public at large suffered any prejudice”); {50.3.8} (improper delegation and lack of prejudice); Jobling v Richmondupon-Thames LBC [2019] EWHC 190 (Admin) at §67 (test for statutory review whether “substantially prejudiced” by failure to comply with procedural requirement); R (Shutt) v Secretary of State for Justice [2012] EWHC 851 (Admin) at §37 (no injustice to claimants from unlawful over-rigid policy); R v Oxfordshire County Council, ex p P [1996] ELR 153, 157B-D (Laws J: “In a public law case … [a claimant] may have an important point to bring to the court’s attention, whose resolution might be required in the public interest, even if the [claimant] himself has suffered no perceptible prejudice as a result of the decision in question”); R v Aston University Senate, ex p Roffey [1969] 2 QB 538, 551B (judicial review “a discretionary remedy designed to remedy real and substantial injustice”); R v Joint Higher Committee on Surgical Training, ex p Milner (1995) 7 Admin LR 454, 463D (no injustice from considering oral rather than written references); R v Panel on Take-overs and Mergers, ex p Guinness Plc [1990] 1 QB 146, 192B (“[the claimant] has failed in the end to satisfy me that there has been any real injustice, or even any real risk of injustice, in this case”); R v Liverpool Magistrates’ Court, ex p Ansen [1998] 1 All ER 692, 699d (“no substantial injustice”); R (Garg) v Criminal Injuries Compensation Authority [2007] EWCA Civ 797 at §44 (error of law not having “produced any real injustice”). 4.2.9 Reasons and prejudice. Starbones Ltd v Secretary of State for Housing, Communities and Local Government [2020] EWHC 526 (Admin) at §74 (applying South Bucks District Council v Porter (No 2) [2004] UKHL 33 [2004] 1 WLR 1953 at §36: “A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision”); Uprichard v Scottish Ministers [2013] UKSC 21 [2013] SLT 1218 at §52 (Lord Reed: “even if the reasons might have addressed the appellant’s objection more clearly, there is no question of their possibly concealing a flaw in the ministers’ reasoning by which she might have been prejudiced”); R (C) v Financial Services Authority [2012] EWHC 1417 (Admin) at §67 (“the claimant will only succeed with a reasons challenge … if … he has been ‘substantially prejudiced’ by [the] failure to provide reasons”), §74; R v Immigration Appeal Tribunal, ex p Dhaliwal [1994] Imm AR 387, 392 (“To provide a remedy based on the absence of proper reasoning, there should be some element of prejudice”); Grant v Teacher’s Appeal Tribunal [2006] UKPC 59 62

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at §35 (“no prejudice was caused … by any deficiency in the Tribunal’s reasons”); Laing v The Queen [2013] UKPC 14 [2013] 1 WLR 2670 at §§12-13 (breach of CA’s duty to give reasons not a basis for quashing the underlying, soundly based conviction). Cf R (Adams) v Commissioner for Local Administration [2011] EWHC 2972 (Admin) at §33 (substantial prejudice not required for a declaration that breach of statutory duty to issue a statement of reasons); R (Wall) v Brighton and Hove City Council [2004] EWHC 2582 (Admin) [2004] 4 PLR 115 at §62 (no requirement to show prejudice by failure to include reasons in decision notice); Brabazon-Drenning v United Kingdom Central Council for Nursing Midwifery and Health Visiting [2001] HRLR 91 (as to lack of reasons: “The fact that the appellant may not have been prejudiced … is irrelevant”). 4.2.10 Procedural unfairness/procedural flaw and prejudice. Holborn Studios Ltd v Hackney LBC [2020] EWHC 1509 (Admin) at §84 (Dove J: “it is necessary for a claimant to establish material prejudice before relief could be granted in respect of an allegation of procedural unfairness”); Barlow v Secretary of State for Housing, Communities and Local Government [2019] EWHC 146 (QB) at §§86-87 (failure to identify any point which could have made relevant to whether any material prejudice from refusal to adjourn); R (Broomfield) v HMRC [2018] EWHC 1966 (Admin) [2019] 1 WLR 1353 at §96 (even if misdescription of prescribed response period had invalidated tax notice, court would have refused relief as a matter of discretion, there being no suggestion in the evidence of “any injustice, or any prejudice”); R (Kerr) v Cambridge City Council [2011] EWHC 1623 (Admin) at §§29-33 (prejudice from unfair refusal to allow objector to address planning committee); R v Chief Constable of the Thames Valley Police, ex p Cotton [1990] IRLR 344 (court asking whether any breach of natural justice in substance); R v East Dereham Justices, ex p Clarke [1996] COD 196 (failure to allow opportunity for representations but no detriment); R v South Northamptonshire District Council, ex p Crest Homes Plc (1995) 93 LGR 205, 210 (remedy refused because “nothing to suggest that there has been any prejudice to any objecting party caused by the irregular … consultation”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p Everett [1989] 1 QB 811, 819B (although Secretary of State should have given reasons and an opportunity to persuade, claimant now knowing the reasons and no real prejudice); R v North & East Devon Health Authority, ex p Pow (1998) 1 CCLR 280, 293E-F (remedy granted where failure to consult because, even though the grounds for opposition to the decision were well known, proper consultation ought to produce positive suggestions of alternative proposals); Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (where no environmental impact assessment, as required by EU law, Court should not refuse remedy on the basis that the result would have been the same); {61.1.8} (material irregularity); {61.1.22} (procedural fairness: whether need for prejudice); {61.4.4} (whether procedural ultra vires needs prejudice). 4.2.11 Flaw having been subsequently corrected. {36.4} (whether action/avenue curative of public law wrong); {19.1.9} (letter of response); {5.4.2} (replacement decision accompanying pre-action letter of response).

4.3 Futility.9 A distinct way in which the Court focuses on practical substance is to ask whether granting a remedy by way of judicial review would be ‘futile’. The statutory materiality test (HL:NSD), and common law materiality (or absence of prejudice/ injustice), look to the past: asking whether the decision would have been the same absent what went wrong. Futility is different: it looks to the present and future. If a decision would be being retaken, this involves considering the now prevailing circumstances. The common law applies its ‘inevitability’ test: would the decision inevitably be the same if

9The

equivalent paragraph in a previous edition was relied on in Lawrence v AG [2007] UKPC 18 [2007] 1 WLR 1474 at §65 (Lord Mance); Lam Yuet Mei [2004] HKCFI 372 at §9 (Hon Chu J); Virgin Media [2008] CAT 32 at §34; R (Michael) v Governor of HMP Whitemoor [2020] EWCA Civ 29 [2020] 1 WLR 2524 [2020] 1 WLR 2524 at §51 (Lord Burnett CJ, Holroyde and Nicola Davies LJJ).

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now required to be taken afresh? The Court may also look to other reasons why a remedy would be pointless. 4.3.1 HL:NSD test looks at the past. {4.1} (highly likely: not substantially different (HL:NSD)) (“whether the outcome for the [claimant] would have been substantially different if the conduct complained of had not occurred”); R (Adamson) v Kirklees Metropolitan Borough Council [2019] EWHC 1129 (Admin) at §143 (HL:NSD test involves: “(i) assessing objectively the decision and the process leading to it, (ii) identifying and then stripping out the ‘conduct complained of’, (iii) deciding what on that footing the outcome for the applicant is ‘highly likely’ to have been and/or (iv) deciding whether, for the applicant, the ‘highly likely’ outcome is ‘substantially different’ from the actual outcome”) (CA is [2020] EWCA Civ 154). 4.3.2 Futility at common law: inevitability test. R (Michael) v Governor of HMP Whitemoor [2020] EWCA Civ 29 [2020] 1 WLR 2524 at §51 (asking whether “it would be futile to quash the decision and remit it for reconsideration in the light of the now prevailing circumstances, because it is inevitable that the same decision will be taken”), §53 (“we are unpersuaded that the outcome of a fresh decision would necessarily be the same”); R (S) v Northampton Crown Court [2010] EWHC 723 (Admin) [2012] 1 WLR 1 at §29 (sufficient that “reasonable possibility” that the decision might not be the same); R (AK (Sri Lanka)) v SSHD [2009] EWCA Civ 447 [2010] 1 WLR 855 at §35 (“a reasonable Secretary of State might conclude” that submissions constituted a fresh claim); R (Majed) v Camden LBC [2009] EWCA Civ 1029 at §31 (Sullivan LJ: “if there has been an error of law in a decision letter, then the court has to be satisfied, if it is not to quash the decision, that the same decision would, not might, be reached by the decision taker notwithstanding the error”); R (Patmore) v Brentwood Borough Council [2012] EWHC 1244 (Admin) at §52 (“they would be bound to come to the same conclusion”); R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139, 155e (coroner would not be “bound to refuse a resumption”); A v Kirklees Metropolitan Borough Council [2001] EWCA Civ 582 [2001] ELR 657 at §25 (if remitted “[t]he outcome would inevitably be the same”); R v Mansfield Justices, ex p Sharkey [1985] QB 613, 629H-630B (re-hearing “could not fail to impose the same or a similar condition”); R v London Borough of Newham, ex p Campbell (1994) 26 HLR 183, 190 (misdirection, but “on the evidence before this court, the only conclusion which a local authority could come to would be [the same]”); R v Canterbury City Council, ex p Springimage Ltd [1993] 3 PLR 58, 74H (material misdirection, but no “real possibility of the decision on this application being different, were the matter now to go back to the committee”); {4.2.3} (materiality at common law: inevitability test (Simplex)). 4.3.3 Futility: whether remedy pointless. TDT v SSHD [2018] EWCA Civ 1395 [2018] 1 WLR 4922 (challenge to release of potential trafficking victim, without appropriate arrangements to protect against re-trafficking, heard and upheld), §5 (claimant’s solicitors had lost contact with him), §86 (declaration of breach the appropriate remedy); R (KM) v Cambridgeshire County Council [2012] UKSC 23 [2012] PTSR 1189 at §38 (Lord Wilson: “it would be a pointless exercise of discretion to order that [the determination] should be quashed so that the [claimant’s] entitlement might be considered again, perhaps even to his disadvantage”); R (Edwards) v Environment Agency [2008] UKHL 22 [2009] 1 All ER 57 at §65 (pointless to quash where overtaken by events); R (Lunn) v HMRC [2011] EWHC 240 (Admin) [2011] STC 1028 at §59 (“through these proceedings [the claimant] now has a full explanation why the decision was taken. No useful purpose would, therefore, be served by quashing the decision on the ground alone that adequate reasons were not given for the decision”); R v Director of Passenger Rail Franchising, ex p Save Our Railways [1996] CLC 589, 607C (“It is not … apparent that the grant of [a remedy] will serve no useful purpose because the Secretary of State may simply amend his instructions. … [W]hether he does so is a matter for him”); R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657 at §49 (appropriate to quash regulations for absence of race equality impact assessment, where assessment done subsequently, but served to validate the decision and refusing relief would send the wrong message to public authorities); Meyrick Estate Management Ltd v Secretary of State for Environment, Food and Rural Affairs [2007] EWCA Civ 53 [2007] Env LR 558 at §57 (new legislation meaning quashing order may serve no useful purpose); 64

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R (Middleton) v West Somerset Coroner [2004] UKHL 10 [2004] 2 AC 182 at §48 (“No purpose is served by a declaration”); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 576H-577A, 566C-D (sending the matter back to the Secretary of State to consider afresh would be a pointless exercise); R v Comptroller-General of Patents Designs & Trade Marks, ex p Gist-Brocades [1986] 1 WLR 51, 66G-H (“the passage of time has by now made any … remedy of no practical use”); R v North West Thames Regional Health Authority, ex p Daniels (Rhys William) [1994] COD 44 (order would not benefit the claimant nor do any good); R v Cumbria County Council ex p P [1995] ELR 337, 345E (“A declaration in the terms asked would clarify nothing”); R v Secretary of State for Employment, ex p Seymour-Smith [1997] 1 WLR 473 (declaration would serve no useful purpose). 4.3.4 Matter becoming academic. {4.5} (utility: hypothetical/academic issues). 4.3.5 Whether in principle a remedy should be granted if there was unlawfulness. {24.3.2} (declaration generally appropriate where unlawfulness shown); {24.3.14} (quashing order as a normal consequence of unlawfulness).

4.4 Cautious approach to materiality, prejudice and futility.10 Courts have always applied a principled vigilance when faced with the contention that a public law error was not ‘material’ (or caused no ‘prejudice’ or ‘injustice’), or that a remedy would be ‘futile’. In the same way, they apply a cautious approach to the statutory materiality test (HL:NSD). Public law standards matter. The Court does not decide the case based on its own view of the ‘merits’ of the issues which are for the primary decision-maker’s judgment. That principle cuts both ways: the claimant does not win by asking the Court to take an unfavourable, nor the defendant by asking it to take a favourable, view of the ‘merits’ of the impugned action. 4.4.1 Materiality/prejudice/futility: onus on the defendant.11 R (Lichfield Securities Ltd) v Lichfield District Council [2001] EWCA Civ 304 [2001] 3 PLR 33 at §26 (“it is for a public authority … to establish that no harm has in practice resulted from its failure to act fairly”); R v Governors of the Sheffield Hallam University, ex p R [1995] ELR 267, 284D-E (“if a party in breach of proper procedure is to escape the ordinary consequence by asserting that nothing has been lost by the breach, it is for that party to demonstrate it”); R v Birmingham City Council, ex p Dredger (1994) 6 Admin LR 553, 577 (court “not persuaded” by defendant that remedy “would achieve little advantage”); R v Leicester City Justices, ex p Barrow [1991] 2 QB 260, 290D-E (decision quashed where position unclear as to whether unfairness caused prejudice); R v London Borough of Camden, ex p Paddock [1995] COD 130 (transcript) (“the onus [is] on the decision-maker to satisfy the court that the irregularity in the event made no difference”); R v Southwark LBC, ex p Ryder (1996) 28 HLR 56 (whether irrelevancy was materially relied on), 67 (Dyson J: “In the absence of details as to how and why she took it into account, I am driven to conclude that she may well have relied upon it in a material sense”); {42.2} (onus on the defendant). 4.4.2 Refusing a remedy where public law error: a discretion to be exercised sparingly. {24.3.2} (declaration generally appropriate where unlawfulness shown); {24.3.14} (quashing order as a normal consequence of unlawfulness); {24.3.15} (quashing as a normal consequence of unlawfulness: other cases); R v Inner London Crown Court, ex p Sitki [1994] COD 342 (residual discretion to refuse to quash, where the result would inevitably have been the same, ought to be sparingly exercised, so as not to encourage unlawfulness); R v Tynedale District

10The

equivalent paragraph in a previous edition was relied on in R (Smith) v NE Derbyshire PCT [2006] 1 WLR 3315 at §10 (May LJ); R (O’Callaghan) v Charity Commission [2007] EWHC 2491 (Admin) at §41 (Sullivan J); In re McDonnell [2007] NIQB 125 at §5 (Gillen J); R (Asian Music Circuit) v Arts Council [2012] EWHC 1538 (Admin) at §119 (Foskett J); R (BM) v Hackney LBC [2016] EWHC 3338 at §§77(ii), 85. 11The equivalent paragraph in a previous edition was relied on in R (Mavalon Care Ltd) v Pembrokeshire County Council [2011] EWHC 3371 (Admin) (2012) 15 CCL Rep 229 at §49 (Beatson J).

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Council, ex p Shield (1990) 22 HLR 144, 148 (“the court has jurisdiction not to quash the decision if satisfied that there would be no purpose in so doing” but, where manifestly flawed decision letter, “in general the court would be slow not to quash”). 4.4.3 Refusing a remedy where procedural flaw: Bingham LJ in Cotton. R v Chief Constable of the Thames Valley Police, ex p Cotton [1990] IRLR 344, 352 (Bingham LJ: “While cases may no doubt arise in which it can properly be held that denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, I would expect these cases to be of great rarity. There are a number of reasons for this: 1. Unless the subject of the decision has had an opportunity to put his case it may not be easy to know what case he could or would have put if he had had the chance. 2. As memorably pointed out by Megarry J in John v Rees [1970] Ch 345 at p.402, experience shows that that which is confidently expected is by no means always that which happens. 3. It is generally desirable that decisionmakers should be reasonably receptive to argument, and it would therefore be unfortunate if the complainant’s position became weaker as the decision-maker’s mind became more closed. 4. In considering whether the complainant’s representations would have made any difference to the outcome the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of a decision. 5. This is a field in which appearances are generally thought to matter. 6. Where a decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied”); Manning v Ramjohn [2011] UKPC 20 at §39 (describing Cotton as a “characteristically illuminating statement of the law”); {4.1.14} (cautious approach to HL:NSD test: importance of lawful approach/fair procedure). 4.4.4 Procedural flaws and so-called ‘clear-cut’ cases: John v Rees. John v Rees [1970] 1 Ch 345, 402C-E (Megarry J: “As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events”), applied in The Queen v Moss [2013] UKPC 32 [2013] 1 WLR 3884 at §5, and in R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §73;also R (Amin) v SSHD [2003] UKHL 51 [2004] 1 AC 653 at §52 (Lord Steyn, referring to John v Rees, and warning against “the assumption that, although there has not been an adequate enquiry, it may be refused because nothing useful is likely to turn up. That judgment cannot fairly be made until there has been an enquiry”). 4.4.5 Refusing a remedy and procedural flaw: other cases. R v Ealing Magistrates’ Court, ex p Fanneran (1996) 8 Admin LR 351, 356E (Staughton LJ: “the notion that when the rules of natural justice have not been observed, one can still uphold the result because it would not have made any difference, is to be treated with great caution”), 359E (Rougier J); R v Broxtowe Borough Council, ex p Bradford [2000] LGR 386, 387f-g (where claimant “denied a right to be heard which should have been granted to him, the courts should exercise considerable caution before concluding that the absence of the hearing has not resulted in any injustice”); R v SSHD, ex p Kingdom of Belgium 15 February 2000 unreported (rejecting argument that disclosure “pointless”: “The governing interest is the public interest in operating a procedure which would be perceived and accepted by the great majority to be fair”); R v Life Assurance and Unit Trust Regulatory Organisation Ltd, ex p Tee (1995) 7 Admin LR 289, 307F (“the Court has to be very careful before it concludes, that it would have made no difference if the representations had been made or the appeal had taken place”), 311A-B (“Where a person has unjustly been denied a fair hearing it is only in the most exceptional circumstances that it can be proper to deny him a further opportunity”), but 311C-D (“it is to my mind inconceivable that any future repetition or elaboration of [Mr Tee’s] representations would lead Lautro to reverse or vary their decision”). 66

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4.4.6 Not trespassing into/substituting view on merits. Canterbury City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin) at §84 (Dove J: “the court must be careful to avoid trespassing into the ‘forbidden territory’ of evaluating the substantive merits of the decision”; “the court is not … provided with … all the material before the decision-taker and … is not afforded the same scope for its consideration of the case … it is therefore not equipped to retake the decision”); R (Chief Executive of the Independent Police Complaints Commission) v Independent Police Complaints Commission [2016] EWHC 2993 (Admin) [2017] ACD 7 at §29 (“It is quite impossible for us to say … that in all the circumstances the only conceivable conclusion which any investigator could reach is that there is no case to answer. It is not the function of this court to make that decision. We are not equipped to do so. More importantly, we are not the body constitutionally charged with making it”); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §74 (not such a clear cut case that “able to say ‘no difference’ without risking inappropriate encroachment into ‘the forbidden territory of evaluating the substantial merits of the decision’”); R v Governors of the Sheffield Hallam University, ex p R [1995] ELR 267, 288B (refusing “to decline … to grant the [claimant] the [remedy] which is otherwise her due on the basis of my own appraisal of her chances. To do so would be, precisely, to substitute the court for the university as the decision-making body”); R v Legal Aid Area No 8 (Northern) Appeal Committee, ex p Angell (1991) 3 Admin LR 189, 223H-224C (remittal for reconsideration, notwithstanding that seeming “quite pointless”, because “the final decision … is more properly taken by the Appeal Committee than by the court”); R (Bushell) v Newcastle Upon Tyne Licensing Justices [2004] EWHC 446 (Admin) at §29 (conclusion that “the decision-maker should have taken a particular view of the facts when the decision-maker has not addressed his mind to those facts … should be confined to clear and obvious cases”) (HL is [2006] UKHL 7 [2006] 1 WLR 496); R v British Coal Corporation, ex p Union of Democratic Mineworkers [1988] ICR 36, 43H-45F, 46D-E (declaration granted that union representing substantial proportion of persons; although still open to Board to refuse to accept sufficient representation, by no means certain that such a pessimistic prognosis justified); R v North West Lancashire Health Authority, ex p A [2000] 1 WLR 977, 1000A (“if this Court were to assert that the health authority, reviewing those factors, would necessarily come to the same decision as previously … it would be making exactly the error of substituting its own judgement for that of the health authority”); R v Tandridge District Council, ex p Al Fayed [2000] 1 PLR 58, 63C-D (“Once it is apprised of a procedural impropriety the court will always be slow to say, in effect, ‘no harm has been done’. That usually would involve arrogating to itself a value judgment which Parliament has left to others. But the facts of the present case are exceptional and in my judgment the judge was right to refuse [a remedy]”). 4.4.7 Dangers of speculating. R v DPP, ex p C (1995) 7 Admin LR 385, 393D-E (Kennedy LJ: “What conclusion [the decision-maker] would have reached if he had had regard to [certain matters] … is not a matter which in my judgment should be speculated upon in this court. The decision is one for the DPP not for this court”); Diedrichs-Shurland v Talanga-Stiftung [2006] UKPC 58 at §37 (wrong to speculate as to whether judge saw representations lodged behind other party’s back); R v Ealing Magistrates’ Court, ex p Fanneran (1996) 8 Admin LR 351, 359E (wrong “for this court to employ its imagination to postulate facts which might or might not have occurred or arguments which might or might not have succeeded had the rules of natural justice been followed”); R v West Dorset District Council, ex p Gerrard (1995) 27 HLR 150, 166 (“Not all shut doors are, in truth, shut, not all minds are closed when it comes to representation of a case”); R v Immigration Appeal Tribunal, ex p Bastiampillai [1983] 2 All ER 844, 853g (“I cannot say what the Secretary of State’s decision would have been”). 4.4.8 Fairness as an end in itself/unfairness as injustice. R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37 at §27 (Laws LJ: “a right to be heard truly so called … is an end in itself: it is simply the doing of justice, which requires no utilitarian justification”); R v Bank of England, ex p Mellstrom [1995] CLC 232, 241B (where no opportunity to deal with relevant adverse information, may be “not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a 67

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decision without reference to it”); Errington v Wilson The Times 2 June 1995 (prejudice amounting from the fact of the denial of the opportunity to test the evidence); R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139, 155j-156b (rejecting “futility argument” because decision “fairly taken” puts the claimants in a different position as to whether they “would reluctantly accept it”); R v Secretary of State for Education and Science, ex p Islam (1993) 5 Admin LR 177, 188B-C (important that “any unfairness will be swept away”); R (Turpin) v Commissioner for Local Administration [2001] EWHC Admin 503 [2003] LGR 133 (no need for prejudice, sufficient that risk of prejudice); {4.2.5} (materiality and procedural unfairness/flaw). 4.4.9 The inevitability test. {4.2.3} (materiality at common law: inevitability test (Simplex)); {4.3.2} (futility at common law: inevitability test); {24.4.2} (substitutionary remedy: Court’s power of retaking the decision). 4.4.10 Cautious approach to HL:NSD test. {4.1.10}-{4.1.18}

4.5 Utility: hypothetical/academic issues.12 A judicial review claim may lack practical substance because the issues are hypothetical, or it may lose practical substance because they have now become academic. The method of the common law is to delineate and apply legal principles through adjudicating contested disputes requiring resolution for a sound practical reason. Courts, at all levels, need persuading that there is good reason to entertain a judicial review challenge whose issues are hypothetical or academic. But the Courts also recognise that there can be a good reason for doing so. 4.5.1 Hypothetical/academic matters: general aversion. R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 at §208 (“Courts should not opine on academic or hypothetical issues in public law cases other than in exceptional circumstances where there is good reason in the public interest for doing so”), §216 (but issues entertained here, “because of their potentially wider implications”); Tewkesbury Borough Council v Secretary of State for Communities Housing and Local Government [2019] EWHC 1775 (Admin) [2019] PTSR 2144 at §§32, 39 (inappropriate to entertain judicial review claim brought against a planning appeal determination whose outcome was in the claimant’s favour, to decide an issue of planning policy interpretation on which issue the claimant had not succeeded on the appeal); R (Raw) v Lambeth LBC [2010] EWHC 507 (Admin) at §52 (Stadlen J: “a conclusion on hypothetical questions and the accompanying reasons could constitute no more than obiter dicta expressed without the assistance of a concrete factual situation and would not constitute a binding precedent for the future”), §53 (“Allied to this is the obvious public interest in the avoidance of wasting valuable court time and the incurring by one or more parties of unnecessary costs normally inherent in the entertaining of academic disputes”), §54 (asking “whether the effect of entertaining an academic claim in any particular case may be to encourage or fail adequately to deter the bringing of academic claims by other persons in the future”), §58 (asking “whether there [is] a good reason in the public interest” to entertain the claim); R (Smeaton) v Secretary of State for Health [2002] EWHC 886 (Admin) [2002] 2 FLR 146 at §420 (courts “exist to resolve real problems and not disputes of merely academic significance”); R (Howard League for Penal Reform) v SSHD [2002] EWHC 2497 (Admin) [2003] 1 FLR 484 at §140 (not “the task of a judge … to set out to write a textbook or practice manual or to give advisory opinions”); R (European Surgeries Ltd) v Cambridgeshire Primary Care Trust [2007] EWHC 2758 (Admin) at §21 (inappropriate to entertain claim for declaration regarding rights of NHS reimbursement where patient was not seeking reimbursement); R v Portsmouth Hospitals NHS Trust, ex p Glass [1999] 2 FLR 905, 910G (“For the court to act in anticipation in this area to try and produce clarity where, alas, there is no clarity at the moment, would … be a task fraught with danger”); R (Anti-Waste Ltd)

12The

equivalent paragraph in a previous edition was relied on in R (Khazai) v Birmingham CC [2010] EWHC 2576 (Admin) at §77 (Foskett J).

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v Environment Agency [2007] EWCA Civ 1377 [2008] 1 WLR 923 at §49 (need for utility as to declaration); {24.2.11}-{24.2.15} (advisory declarations/opinions). 4.5.2 Claim for declarations: contested argument/proper contradictor. R (Elmes) v Essex County Council [2018] EWHC 2055 (Admin) [2019] 1 WLR 1686 at §179 (appropriate here to take exceptional course of granting a declaration without hearing argument to the contrary); R (Bus and Coach Association Ltd) v Secretary of State for Transport [2019] EWHC 3319 (Admin) at §45 (“the court will wish to be satisfied that all sides of the argument have been fully and properly put”); Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438, 448 (importance of “a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought”). 4.5.3 Claimant no longer an HRA ‘victim’. {38.4.7} (whether claimant no longer an HRA ‘victim’). 4.5.4 Procedural rigour: matter becoming academic. Administrative Court: Judicial Review Guide (2020 edition) at §5.3.4.1 (“Where a claim is purely academic, that is to say that there is no longer a case to be decided which will directly affect the rights and obligations of the parties to the claim, it will generally not be appropriate to bring judicial review proceedings. An example of such a scenario would be where the defendant has agreed to reconsider the decision challenged. Where the claim has become academic since it was issued, it is not generally appropriate to pursue the claim”); R (Parsipoor) v SSHD [2011] EWCA Civ 276 [2011] 1 WLR 3187 (once permission granted, claimant entitled to an oral hearing unless parties agreeing to paper disposal under CPR 54.18), §36 (nevertheless: “In general, cases which are or have become academic as between the parties should not be brought or continued, so as to take up the resources of the court or the parties or of those providing funding for the litigation”); {4.5} (utility: hypothetical/academic issues); {22.1.8} (procedural rigour: claimant’s duty of re-evaluation if circumstances change); {10.3.5} (continuing duty of claimant candour/duty to update the Court). 4.5.5 Whether an appropriate ‘test case’. R v British Broadcasting Corporation, ex p Quintavelle (1998) 10 Admin LR 425 (sometimes appropriate to approach a case in terms of the need for guidance on an issue of general principle, rather than the merits and prospects of success of the individual case), 426E-427C (two principal considerations: whether there is any remedy which the claimant could be granted, which would be of value to the decisionmaker; and whether the present application an appropriate vehicle for such guidance); R (Morris) v Westminster City Council [2004] EWHC 1199 (Admin) (appropriate test case here); R (Tshikangu) v Newham LBC [2001] EWHC Admin 92 (where claimant no longer needs judicial review, wrong for claimant’s lawyers to decide without reference to defendant or Court to proceed as test case); R (Cronin) v Sheffield Magistrates’ Court [2002] EWHC 2568 (Admin) [2003] 1 WLR 752 at §30 (“It is very important … that the limited resources which are available from public funds for testing points of principle are confined to cases where it is really necessary”); R v SSHD, ex p Adan [2001] 2 AC 477 (CA), 486F-H (deciding “a question of general importance … which may be considered and decided irrespective of the facts of these particular cases”; “Given the number of cases in the pipeline in which, we understand, the issue is raised, it is in our judgment in the public interest that we should determine it in these proceedings”); R (Zeqiri) v SSHD [2002] UKHL 3 [2002] INLR 291 at §40 (referring to a species of ‘test case’ where the parties “agree[] to abide by whatever the … case decided”); R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657 at §43 (claimant no longer at secure training centre but test case); Administrative Court: Judicial Review Guide (2020 edition) at §5.3.4.2 (“In exceptional circumstances the Court may decide to proceed to determine a claim even though the outcome has become academic. The Court may do so if, for example: a large number of similar cases exist or are anticipated, or at least other similar cases exist or are anticipated and the decision in a judicial review will not be fact-sensitive”). 4.5.6 Resolving an issue in the public interest. R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 at §208 (referring to “exceptional circumstances where 69

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there is good reason in the public interest”); Johnatty v Attorney-General [2008] UKPC 55 at §19 (referring to whether there is “a point of real substance that required to be addressed”); R v Horseferry Road Magistrates Court, ex p K [1997] QB 23, 41C-D (“there is a general public interest to be served by expressing our conclusions on the merits”); R v Board of Visitors of Dartmoor Prison, ex p Smith [1987] QB 106, 115F (“questions of general public interest”); London Borough of Islington v Camp (1999) [2004] LGR 58 (serving a useful purpose in the public interest); R (Jones) v Chief Constable of Cheshire [2005] EWHC 2457 (Admin) (appropriate to give judgment and make a declaration, albeit no longer disputed, to make clear the absence of police power); cf Bowman v Fels [2005] EWCA Civ 226 [2005] 1 WLR 3083 at §§7, 15 (underlying litigation settled but CA deciding important issue in the public interest). 4.5.7 Matter becoming academic: High Court declining to decide the issues (illustrations). R (Dolan) v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin) at §32 (court declining to hear judicial review of claim as to legality of Coronavirus regulations, since replaced); R (Gassa) v Richmond Independent Appeals Service [2020] EWHC 957 (Admin) at §§147, 153, 180, 201 (defendant having conceded that case needed redetermination, court declining to resolve contentious issues of law said by claimant to be relevant to reconsideration); R (Goloshvili) v SSHD [2019] EWHC 614 (Admin) at §47 (inappropriate to entertain the claim, but Court going on to give obiter views on the substantive issues); R (Raw) v Lambeth LBC [2010] EWHC 507 (Admin) at §70 (declining to go further than some general observations); R (McKenzie) v Waltham Forest LBC [2009] EWHC 1097 (Admin) (fact-specific question and no evidence of similar cases); R (Zoolife International Ltd) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) (wrong to entertain claim overtaken by events, especially given court’s case-load and fact-sensitive issue); Hamnett v Essex County Council [2017] EWCA Civ 6 [2017] 1 WLR 1155 at §§37-38 (CA could have dismissed the appeal summarily); {22.1.15} (application for strike out/dismissal). 4.5.8 Matter becoming academic: High Court deciding the issues (illustrations). R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin) [2019] ACD 148 at §8 (BBC had complied with impugned production order under protest, upon defendant and interested party agreeing that they would not subsequently seek to argue that the claim had become academic); R (TW) v Hillingdon LBC (No 2) [2019] EWHC 157 (Admin) at §35 (although policy not currently applied to claimant, appropriate to determine whether council still in breach of impact assessment duty, as she had established in previous proceedings); cf Haringey LBC v Simawi [2018] EWHC 290 (QB) (public interest here in resolving issues arising out of possession claim even if became academic before hearing date); R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339 at §60 (court may proceed to hear the case where SSHD withdraws vulnerable decisions at a late stage in order to avoid an unwelcome precedent); R (Taylor) v Honiton Town Council [2016] EWHC 3307 (Admin) [2017] PTSR 271 at §28 (court dealing with issues where decision withdrawn and parties agreed as to quashing order but disagreeing as to basis for quashing order, and where there would be further dealings); R (Brooks) v Islington LBC [2015] EWHC 2657 (Admin) [2016] PTSR 389 at §26 (court addressing “a question of statutory construction … [which] is an issue of importance to housing authorities and individual applicants … [which] may not otherwise be determined unless it is resolved in a case such as the present”), §27 (but declining to deal with a further “question of whether on the particular facts … the [defendant] acted reasonably”); R (Letts) v Lord Chancellor [2015] EWHC 402 (Admin) [2015] 1 WLR 4497 at §§19, 24 (claimant originally refused legal aid, permitted to challenge lawfulness of the guidance, albeit legal aid had been granted); R (Robinson) v Torridge District Council [2006] EWHC 877 (Admin) [2007] 1 WLR 871 (deciding issue of interpretation for guidance of magistrates); R (Newsum) v Welsh Assembly (No 2) [2005] EWHC 538 (Admin) [2006] Env LR 1 at §48 (although European Commission and CJEU now seised of the matter, domestic court expressing conclusions since these would be relied on before those bodies); R (William Hill Organisation Ltd) v Batley and Dewsbury Betting Licensing Committee [2004] EWHC 1201 (Admin) at §25 (question of widespread practice and continuing interest); R (DPP) v Camberwell 70

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Green Youth Court [2003] EWHC 3217 (Admin) at §4 (question of principle regarding youth court’s supposed inherent power) §15 (permission granted, limited to declaratory remedy); R v Horseferry Road Magistrates’ Court, ex p Bennett (No 2) [1994] 1 All ER 289, 297h (difficult to see how otherwise question would arise for direct decision); R (B) v Stafford Combined Court [2006] EWHC 1645 (Admin) [2007] 1 WLR 1524 at §14 (historic violation but actual relevant facts and keen interest in deciding lawfulness). 4.5.9 Matter becoming academic: CA declining to decide the issues (illustrations). R (Nolson) v Stevenage Borough Council [2020] EWCA Civ 379 at §21 (CA declining to hear appeal on the correct test for arguability in mandatory interim relief housing cases, the issue having become academic); Rehoune v Islington LBC [2019] EWCA Civ 2142 (matter becoming academic before CA hearing) at §27 (“This is not one of those exceptional cases where there is any real benefit to be achieved or public interest that justifies” exercising “the discretion to hear the appeal”); R (MS) v SSHD [2019] EWCA Civ 1340 at §56 (not in the interests of justice in all the circumstances to determine academic appeal), §10 (“The key question is whether, in all the circumstances, it is in the public interest for the court to consider and determine an issue which is academic as between the parties. The cases suggest that cases in which it is in the public interest will be rare”); R (AG (Pakistan)) v SSHD [2011] EWCA Civ 998 at §§7-9 (adjourning judicial review appeal where matter raised may “become wholly academic” and “difficult to see” what practical relief could currently be given); R (Stamford Chamber of Trade & Commerce) v Secretary of State for Communities & Local Government [2010] EWCA Civ 992 at §§2, 13 (case had become moot and judgment would be factspecific and historic only); R (C) v Nottingham City Council [2010] EWCA Civ 790 [2011] 1 FCR 127 at §36 (“The appellants have now obtained in practical terms all of the remedies which they require”), §37 (defendant’s “resources are better devoted to promoting the welfare of children in Nottingham, rather than arguing points of law whose only relevance is to other cases in which [it] is not involved”). 4.5.10 Matter becoming academic: CA deciding the issues (illustrations). R (Liverpool Open and Green Spaces Community Interest Co) v Liverpool City Council [2020] EWCA Civ 861 at §11 (“not wholly academic, and, in the public interest, ought to be heard”); BF (Eritrea) v SSHD [2019] EWCA Civ 872 [2020] 4 WLR 38 at §6 (addressing legality of detention guidance, albeit “unrelated to the facts of the … particular case”); R (A) v Secretary of State for Health and Social Care [2018] EWCA Civ 2696 [2019] 1 WLR 2979 at §4 (“There is a public interest in determining the appeal, which does not depend on a detailed consideration or dispute of fact and turns on a point of statutory interpretation. There are other existing and anticipated cases affected”); R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137 [2019] 1 WLR 929 at §4 (issue important); R (Davis) v Watford Borough Council [2018] EWCA Civ 529 [2018] 1 WLR 3157 at §3 (case raising “a point of statutory interpretation of potential wider importance”); R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339 at §60 (court may proceed to hear the case where SSHD withdraws vulnerable decisions at a late stage in order to avoid an unwelcome precedent); R (Commissioner of Police of the Metropolis) v Independent Police Complaints Commission [2015] EWCA Civ 1248 [2016] PTSR 891 at §28 (“two public authorities have a fundamental disagreement about an important point of public law which will affect their future conduct of investigations”); R (MA) v SSHD [2011] EWCA Civ 1446 at §3 (“The point is an important one and several other cases in this jurisdiction remain stayed in anticipation of clarification of the law”); R (Omoregbee) v Secretary of State for Justice [2011] EWCA Civ 559 at §3 (CA entertaining general issue, but declining to deal with second issue relating to claimant’s individual circumstances); R (S) v Westminster City Council [2011] EWCA Civ 954 [2012] PTSR 574 at §2 (questions of principle) (SC is [2013] UKSC 27 [2013] 1 WLR 1445); Pieretti v Enfield LBC [2010] EWCA Civ 1104 [2011] 2 All ER 642 at §6 (“in the public interest”); R (Gilboy) v Liverpool City Council [2008] EWCA Civ 751 [2009] QB 699 at §2 (important point which parties wanting resolved); R (MK (Iran)) v SSHD [2011] EWCA Civ 671 [2012] 1 WLR 765 at §§1-2, 29, 31 (CA addressing only issues “of wider application”, but not “fact-specific matters”); R (Ware) v Neath Port Talbot County Borough [2007] EWCA Civ 1359 [2008] LGR 176 at §43 (issues of wider and ongoing importance); 71

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R (Couronne) v Crawley Borough Council [2007] EWCA Civ 1086 [2008] 1 WLR 2762 at §18 (“a point of principle is involved”); R (M) v Gateshead Metropolitan Borough Council [2006] EWCA Civ 221 [2006] QB 650 at §14 (important point which could not otherwise be decided); Francis v Royal Borough of Kensington and Chelsea [2003] EWCA Civ 443 [2003] 2 All ER 1052 at §3 (“issue of principle” and “too good an opportunity to miss to provide … clarification”); R (Maxhuni) v Commissioner for Local Administration for England [2002] EWCA Civ 973 [2003] LGR 113 at §5 (issue of “very considerable general importance”); R (Sim) v Parole Board [2003] EWCA Civ 1845 [2004] QB 1288 at §9 (questions of principle arising from declarations granted below); R (W) v Commissioner of Police for the Metropolis [2006] EWCA Civ 458 [2007] QB 399 at §17 (appropriate to decide meaning and effect of police power) R (Farrakhan) v SSHD [2002] EWCA Civ 606 [2002] QB 1391 at §10 (“practical significance” lying in “guidance” for future). 4.5.11 Matter becoming academic: SC/HL/PC. Rhuppiah v SSHD [2018] UKSC 58 [2018] 1 WLR 5536 at §7 (appeal becoming academic but SC agreeing “general importance” to provide “a definitive interpretation”); Volaw Trust and Corporate Services Ltd v Office of the Comptroller of Taxes (Jersey) [2019] UKPC 29 at §23 (PC hearing and determining issues of general public importance); R (Quila) v SSHD [2011] UKSC 45 [2012] 1 AC 621 at §2 (claimants granted marriage visas but Secretary of State’s “appeals to this court, although academic for them, retain a general importance which has justified their continued prosecution”); AS (Somalia) v SSHD [2009] UKHL 32 [2009] 1 WLR 1385 at §1 (entry clearance now granted but appeal entertained “because it raises an issue that is likely to affect a substantial number of other applicants”); R (L) v Secretary of State for Justice [2008] UKHL 68 [2009] AC 588 at §85 (HL entertaining appeal as to when full public hearing necessary under Art 2, albeit that prison service having agreed to hold one here); Deuss v Attorney General for Bermuda [2009] UKPC 38 [2010] 1 All ER 1059 at §11 (PC entertaining an issue, albeit “academic”, because a matter of “general importance”); Rushbridger v HM AttorneyGeneral [2003] UKHL 38 [2004] 1 AC 357 at §35 (Lord Hutton: “It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them”); R v SSHD, ex p Salem [1999] 1 AC 450, 456G-457B (“appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so”); R v SSHD, ex p Wynne [1993] 1 WLR 115, 120A-B (“It is well established that [the HL] does not decide hypothetical questions”); MS (Pakistan) v SSHD [2020] UKSC 9 [2020] 1 WLR 1373 at §§9-10 (issue becoming academic for the individual appellant but SC (a) allowing intervening EHRC to take over the appeal and (b) ruling on the substantive issues); R (KM) v Cambridgeshire County Council [2012] UKSC 23 [2012] PTSR 1189 at §7 (SC declining to deal with legal issue, introduced by CA, which did not arise on the facts and defendant did not defend); R (Barclay) v Lord Chancellor [2009] UKSC 9 [2010] 1 AC 464 at §§103, 111 (SC declining to rule on academic issue); R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29 [2011] 1 AC 1 (SC deciding applicability of Arts 1 and 2 to British military deaths abroad, albeit no dispute about applicability here), §2 (Courts “prepared to entertain [the issues] because of their importance”), §94 (“argued … on the basis that it raised an important issue of principle”); R v SSHD, ex p Adan [2001] 2 AC 477 (academic appeals entertained because of general importance of the issues); Neill v North Antrim Magistrates’ Court [1992] 1 WLR 1220, 1232H, 1234E (giving guidance although question had “become entirely academic”); Chief Adjudication Officer v Foster [1993] AC 754, 761F (“academic” issue dealt with, since having “far-reaching procedural implications for the future”); R v SSHD, ex p Abdi [1996] 1 WLR 298, 302F (dealing with “a question of fundamental importance”); R (Ullah) v SSHD [2004] UKHL 26 [2004] 2 AC 323 at §5 (given the factual position, issue of principle “academic. But it is a question of legal and practical importance”); A v SSHD [2005] UKHL 71 [2006] 2 AC 221 at §§1, 90 (deciding whether torture-obtained evidence legally inadmissible albeit SSHD’s present policy not to rely on it); R (Bushell) v Newcastle Upon Tyne Licensing Justices [2006] UKHL 7 [2006] 1  WLR 496 at §§7-8 (although could no longer secure a licence, favourable ruling could affect compensation and costs); R (Limbuela) v SSHD [2005] UKHL 66 [2006] 1 AC 396 at §81 (no longer live issue for claimants, but importance undiminished). 72

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4.6 Prematurity. The Court may decline to entertain a judicial review claim which it concludes has been brought ‘too soon’. It may be that the claimant should ‘wait and see’. It may be inappropriate to rule on issues prospectively, as where a decision or action constituting the real and proper target for judicial review has yet to crystallise, and where litigating may turn out not to have practical significance. 4.6.1 Prematurity/need for a ‘decision’.13 R (Gill) v Cabinet Office [2019] EWHC 3407 (Admin) (pre-emptive judicial review of contemplated Order in Council directing a census held to be premature), §88 (Lang J: “it is the long-established practice of this Court not to entertain anticipatory claims for judicial reviews in respect of events that have not yet occurred. … I do not consider that there is any justification for making an exception in this case”); R (Leighton) v Lord Chancellor [2020] EWHC 336 (Admin) [2020] ACD 50 at §64 (no decision yet), §§69, 76-207 (court ruling on whether current position unlawful); R (Drexler) v Leicestershire County Council [2019] EWHC 1934 (Admin) at §§21-22 (challenge to school transport policy as unjustifiably discriminatory not premature albeit specific impact on claimant not yet known) (CA is [2020] EWCA Civ 502); R (Birmingham Care Consortium v Birmingham City Council [2011] EWHC 2656 (Admin) (judicial review premature), §30 (Beatson J: “The court is being asked to resolve matters at a stage when the defendant has not reached a concluded view”), §31 (no “clear and discrete sharp question of law” and claim “likely to be fact sensitive”), §33 (“The court is likely to be working on incomplete materials”), §35 (“The consultation process is continuing”); R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §43 (judicial review of a provisional decision could be dismissed as premature); R v Portsmouth Hospitals NHS Trust, ex p Glass [1999] 2 FLR 905, 910G (declining “to act in anticipation in this area to try and produce clarity” as “a task fraught with danger”); R v Bromley LBC, ex p Lambeth LBC The Times 16 June 1984 (declaration granted that subscriptions would be intra vires, there being jurisdiction notwithstanding that there was no “decision” yet); R v Secretary of State for the Environment, ex p Omega Air Ltd [2000] EuLR 254 (judicial review to test validity of EU Regulation albeit not yet into force and no domestic legislation yet in existence); Ex p Amnesty International The Times 11 December 1998 (Court assuming that jurisdiction in relation to imminent decision even though no yet made); R v Commissioners of Inland Revenue, ex p Ulster Bank Ltd [1997] STC 832, 842g-843c (premature to challenge rationality until decision reached); {5.1.3} (judicial restraint because no ‘decision’). 4.6.2 Judicial review of proposed/intended action.14 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 (declaration that proposed action of notifying Brexit without primary legislation unlawful); R (Christchurch Borough Council) v Secretary of State for Housing, Communities and Local Government [2018] EWHC 2126 (Admin) [2019] PTSR 598 at §§62-63 (treating the grounds as having arisen when Secretary of State adopted “a publicly stated position” to which regulations later gave legal effect); R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531 at §17 (successful judicial review of proposed regulations); B v Chief Constable of Northern Ireland [2015] EWHC 3691 (Admin) [2016] ACD 30 (proposed arrests); Littlewood v Powys County Council [2015] EWHC 2125 (Admin) [2016] PTSR 45 (successful judicial review challenge to proposed procedure); R (Associated Newspapers Ltd) v Lord Justice Leveson [2012] EWHC 57 (Admin) [2012] ACD 23 (judicial review of preliminary ruling as to receipt of anonymous evidence); R v Avon Magistrates’ Courts Committee, ex p Bath Law Society [1988] QB 409 (future magistrates’ court scheme); R v Secretary of State for Foreign & Commonwealth Affairs, ex p Rees-Mogg [1994] QB 552 (decision to proceed to ratify Maastricht); R v Secretary of State for Transport, ex p Richmond-upon-Thames LBC [1994] 1 WLR 74, 91G-H (review of

13The

equivalent paragraph in a previous edition was relied on in NH International (Caribbean) Ltd v UDCTT [2005] TTHC 38; R (Birmingham Care Consortium v Birmingham City Council [2011] EWHC 2656 (Admin) at §32 (Beatson J). 14The equivalent paragraph in a previous edition was relied on in Sports Direct International Plc v Competition Commission [2009] CAT 32 at §50.

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announcement of proposed scheme); R v Bromley LBC, ex p Lambeth LBC The Times 16 June 1984 (declaration that subscriptions to the Association of London Authorities would be intra vires); R v Amber Valley District Council, ex p Jackson [1985] 1 WLR 298 (whether resolution meant forthcoming planning decision would be biased); R v Islington LBC, ex p the Building Employers Confederation (1989) 1 Admin LR 97 (judicial review granted of council’s proposed contract terms for inclusion in draft agreements with contractors); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §171 (appropriate to clarify important issue at the outset; “the practical advantages of testing the issue at this early stage are obvious”); R (Heath) v Doncaster Metropolitan Borough Council [2001] ACD 273 (judicial review of proposed contract terms); Wiseman v Borneman [1971] AC 297 (application for a declaration that intended procedure would be a breach of natural justice); British Oxygen Co Ltd v Board of Trade [1971] AC 610, 626-627C (review of intended stance and current rule). 4.6.3 Judicial review of draft instruments. R (Shepherd) v NHS Commissioning Board [2018] EWCA Civ 2849 [2019] PTSR 790 (judicial review of payment mechanism contained in a draft NHS contract developed and published by NHS England); R v HM Treasury, ex p Smedley [1985] QB 657 (whether draft Order in Council ultra vires and unreasonable); R (Plowman) v Secretary of State for Foreign and Commonwealth Affairs [2001] EWHC Admin 617 (judicial review of draft Order in Council); R v Chief Constable of Kent Constabulary, ex p Kent Police Federation Joint Branch Board [2000] COD 169 (judicial review of proposal of reviews of detention by video link); R v Electricity Commissioners, ex p London Electricity Joint Committee Co [1924] 1 KB 171 (prohibiting order granted where scheme in draft Order ultra vires); Bates v Lord Hailsham [1972] 1 WLR 1373 (application for an injunction, to prevent holding of a meeting where draft order likely to be approved, rejected because (a) no duty to consult and (b) delay); R v Local Government Commission, ex p Cambridgeshire District Council & County Council [1995] COD 149 (LGC’s draft report); R v Secretary of State for Health, ex p Imperial Tobacco Ltd [1999] EuLR 582 (in challenge relating to validity of EU Directive, no need to wait until draft measures published); R (A & B) v East Sussex County Council (No 2) [2003] EWHC 167 (Admin) (2003) 6 CCLR 194 at §24 (Court considering lawfulness of draft protocols on manual lifting of disabled persons), §27 (but deciding only to “address the matters of general principle”). 4.6.4 Whether to let proceedings run their course.15 Winder v DPP [2020] EWHC 1611 (Admin) at §27 (judicial review challenges to interlocutory rulings of magistrates’ courts should be avoided unless “a powerful reason”); {32.3.16} (judicial review of magistrates’ interlocutory decisions); R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 (considering whether unfairness in ongoing consultation process), §89 (“Intervention at the earlier stage may … cause wasteful, harmful or avoidable delay. … On the other hand, there will be cases where it is appropriate to grant some form of relief in relation to a consultation process, not least because applications for judicial review must be made promptly”); R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) (judicial review granted of unreasonable and unfair consultation document); R v Secretary of State for Transport, ex p London Borough of Richmond Upon Thames (No 3) [1995] Env LR 409, 412-413 (“If it is arguable that the new consultation is proceeding on a false basis which is justiciable in law, there will be every reason to lean in favour of deciding the issue sooner rather than later”); R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855 at §43 (“The unfair refusal of an interpreter or an adjournment are very much the type of decisions which, if the subject of an immediate application for judicial review, will be reversed by the courts although the final decision would not be. The concern of the court is whether what has happened has resulted in

15The

equivalent paragraph in a previous edition was relied on in R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §38 (Lord Steyn); Financial Secretary v Felix Wong [2003] HKCFA 9 (Hong Kong Court of Final Appeal) at §14 (Justice Bokhary PJ); Orange Personal Telecommunications Services Ltd v Ofcom [2007] CAT 36 at §118.

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real injustice”); R (Wani) v SSHD [2005] EWHC 2815 (Admin) [2006] Imm AR 125 (normally an abuse of process to challenge AIT’s decision to remit an appeal, being only a preliminary decision and all issues remaining open for argument); R (Mahfouz) v General Medical Council [2004] EWCA Civ 233 at §44 (generally preferable for disciplinary proceedings to take their course), §45 (but should have adjourned here to allow judicial review); R v Chief Constable of the Merseyside Police, ex p Merrill [1989] 1 WLR 1077, 1088D (rare to consider judicial review before final decision); R v Personal Investment Authority Ombudsman, ex p Burns-Anderson Independent Network Plc (1998) 10 Admin LR 57 (premature to challenge PIA ombudsman’s provisional conclusion dealing with jurisdiction); Huntley v AttorneyGeneral for Jamaica [1995] 2 AC 1, 17F-G (test case about procedural rights entertained, although usually more appropriate to await prisoner classification decision); R v SSHD, ex p Hickey (No 2) [1995] 1 WLR 734 (judicial review of Secretary of State’s decision as to referral of conviction to the CA), 757H-758A (court would not “readily intervene to regulate procedures in advance of a substantive decision”, but exceptional here); R v Chance, ex p Coopers & Lybrand (1995) 7 Admin LR 821, 837C-E (judicial review not generally available “before … disciplinary procedures were complete”, since this would “frustrate [or] at least reduce the intended efficacy of disciplinary proceedings”); R v Association of Futures Brokers and Dealers Ltd, ex p Mordens Ltd (1991) 3 Admin LR 254, 263E (“it is only in the most exceptional circumstances that the court will grant judicial review of a decision taken during the course of a hearing … before that hearing has been concluded”); R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] QB 815, 840H (take-over panel should “ignore any application for [permission] to apply of which they become aware, since to do otherwise would enable such applications to be used as a mere ploy in take-over battles which would be a serious abuse of the process of the court”), 842C-E (“expect the relationship between the panel and the court to be historic rather than contemporaneous”, to “allow contemporary decisions to take their course”). 4.6.5 Clarification better at the start. R (Associated Newspapers Ltd) v Lord Justice Leveson [2012] EWHC 57 (Admin) [2012] ACD 23 at §32 (judicial review of Leveson inquiry preliminary ruling as to anonymous evidence, being “a positive decision in principle”), §39 (“Where there is an issue of principle which requires to be considered by the court, it is generally speaking best done at the earliest opportunity”), §40 (“Whether an application is premature depends on the subject matter and the nature of the challenge. The claimant’s challenge goes to the root of the ruling and now is the right time to address it”); Sports Direct International Plc v Competition Commission [2009] CAT 32 at §56 (statutory review apt, in respect of CC’s investigative phase decision to redact information, “if the error is such that it would be unfair to allow the procedure to proceed in the manner envisaged”); Gangar v Espinet [2008] UKPC 48 at §25 (apt judicial review to decide whether prosecution time-barred, where desirable early resolution of a question of statutory construction); R v British Advertising Clearance Centre, ex p Swiftcall Ltd 16 November 1995 unreported (in “an area in which decisions are made very quickly”, where documents giving “a clear indication of how [the defendant] is minded to act”, if “the course they are suggesting is fundamentally unlawful, the sooner that is decided the better”); R (Warren) v HM Assistant Coroner for Northamptonshire [2008] EWHC 966 (Admin) (judicial review of ruling at inquest pre-trial review); R (Kurdistan Workers Party) v SSHD [2002] EWHC 644 (Admin) at §81 (best to deal with procedural defect when it arose); R v Secretary of State for the Environment, ex p Kensington and Chelsea Royal Borough Council The Times 30 January 1987 (appropriate to challenge inspector’s decision not to admit certain evidence because stultifying party’s presentation of their case and rendering inquiry a barren exercise); R v Horseferry Road Justices, ex p Independent Broadcasting Authority [1987] QB 54, 73A-F (appropriate to establish whether or not offence existing, before further expense incurred in criminal proceedings); R v Broadcasting Complaints Commission, ex p British Broadcasting Corporation (1994) 6 Admin LR 714, 718A-E (correct to challenge BCC’s preliminary decision that it had jurisdiction to entertain a complaint; not obliged to wait for outcome of complaint); cf R v Personal Investment Authority Ombudsman, ex p Burns Anderson Independent Network Plc [1997] COD 379 (explaining BBC as involving a final decision which related to press freedom); R (S) v Knowsley NHS Primary Care Trust 75

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[2006] EWHC 26 (Admin) at §68 (court not powerless to prevent unfair procedure merely because of existence of later way of remedying consequences). 4.6.6 Anticipatory HRA claim: whether new scheme capable of proportionate operation. Christian Institute v Lord Advocate [2016] UKSC 51 [2016] SLT 805 at §88 (“an ab ante challenge to the validity of legislation on the basis of a lack of proportionality faces a high hurdle: if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference … in all or almost all cases, the legislation itself will not be incompatible with Convention rights”). 4.6.7 Prematurity and the HRA: whether a ‘victim’ yet. R (Fox) v Secretary of State for Education [2015] EWHC 3404 (Admin) [2016] PTSR 405 at §60 (claimants able to “claim the status of actual or potential ‘victims’ of unlawful conduct. … The test is whether the claimants can establish that they ‘run the risk of being directly affected by the measure of which complaint is made’”), citing Lancashire County Council v Taylor [2005] EWCA Civ 284 [2005] 1 WLR 2668 at §39. 4.6.8 Prematurity: too soon for claim to which ‘time-limit ouster’ time window applicable. R (Hillingdon LBC) v Secretary of State for Transport [2017] EWHC 121 (Admin) [2017] 1 WLR 2166 at §§16, 70-72 (no jurisdiction to entertain judicial review of draft national policy statement, where Planning Act 2008 s.13(1) providing for judicial review within six weeks starting from designation or publication of finalised statement); {28.2} (time-limit ousters). 4.6.9 Prospective judicial review avoiding statutory ouster. R v Wiltshire County Council, ex p Lazard Brothers & Co Ltd The Times 13 January 1998 (judicial review granted of resolution to make order, being vitiated by error of law, where statutory ouster clause excluding judicial review of order once made).

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P5 Targets. Claims can impugn a wide range of public authority action including decisions, measures, systems and inaction; sometimes ongoing, or in combination. 5.1 Judicial review and ‘decisions’ 5.2 Spectrum of possible targets 5.3 Multiple targets/target-selection 5.4 ‘Rolling judicial review’

5.1 Judicial review and ‘decisions’. The most common target for judicial review is a decision of a public authority, usually communicated in a decision document or decision letter. Absent a decision, a claim may be seen as premature, hypothetical or otherwise inappropriate. 5.1.1 Judicial review of decisions: illustrations. R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3 [2020] PTSR 221 (judicial review of decision granting planning permission); R (Derry) v HMRC [2019] UKSC 19 [2019] 1 WLR 2754 (judicial review of a demand for tax); R (Kiarie) v SSHD [2017] UKSC 42 [2017] 1 WLR 2380 (quashing certifications of ‘clear unfoundedness’ within decisions); Gordon v Scottish Criminal Cases Review Commission [2017] UKSC 20 [2017] SLT 365 (judicial review of decision not to refer case to Court); R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11 [2010] 2 AC 70 (judicial review of decision refusing to register land as a town or village green); R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3 [2010] 1 AC 410 at §16 (judicial review of decision to disclose information in an Enhanced Criminal Record certificate); R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 (judicial review of decision to remove welfare benefits on refusal of asylum); R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23 [2004] 1 AC 185 (judicial review of BBC’s decision not to show a party election broadcast depicting abortion); R (Anderson) v SSHD [2002] UKHL 46 [2003] 1 AC 837 (judicial review of decision to set mandatory life sentence tariff); R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 (judicial review of decision granting planning permission). 5.1.2 Communication of decision. R (de Silva) v HMRC [2017] UKSC 74 [2017] 1 WLR 4384 at §9 (judicial review of “decisions … set out in letters”); R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 [2015] AC 1344 at §20 (“decision letters”); Zoumbas v SSHD [2013] UKSC 74 [2013] 1 WLR 3690 at §14 (“the decision letter”); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 530E, 533A (decisions announced in press releases); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (Minister’s “instruction” was “issued orally” and later confirmed by an announcement in the House of Commons and a letter); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 (chief constable’s statement to an officer that he could either resign or be dismissed disclosing a “decision” which could be challenged by judicial review, notwithstanding that he took the former option); Cinzano (UK) Ltd v Customs & Excise Commissioners [1985] 1 WLR 484, 485D, 487D-E (letter refusing to acknowledge effect of proposed scheme); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 532A (letter affirming minister’s decision); cf R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1, 26E-F (letter not constituting a decision but a view as to statutory compatibility with EU law; proper focus of challenge the statute itself); BBC v Sugar [2009] UKHL 9 [2009] 1 WLR 430 at §37 (letter capable of being “decision notice” for freedom of information purposes); Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at §68 (leaving open whether time for judicial review runs from “the date on which the decision was made or the date on which it is communicated”).

THE NATURE OF JUDICIAL REVIEW

5.1.3 Judicial restraint because ‘no decision’. {4.6} (prematurity); {4.5} (utility: hypothetical/academic issues); R (P) v Essex County Council [2004] EWHC 2027 (Admin) at §33 (“the Administrative Court exists to adjudicate upon specific challenges to discrete decisions. It does not exist to monitor and regulate the performance of public authorities”); R (Onuegbu) v Hackney LBC [2005] EWHC 1277 (Admin) (no housing decision yet for consideration by judicial review); R (Shrewsbury and Atcham Borough Council) v Secretary of State for Communities and Local Government [2008] EWCA Civ 148 [2008] 3 All ER 548 at §§32-36 (focus should generally be on ultimate actions having substantive legal consequences, not preparatory steps); Bobb v Manning [2006] UKPC 22 [2006] 4 LRC 735 at §16 (Prime Minister’s speech not “a formulated policy statement or decision susceptible to challenge by judicial review”); R v Devon County Council, ex p L (1992) 4 Admin LR 99, 118B-C (letter not amounting to a decision); R v SSHD, ex p Wynne [1993] 1 WLR 115, 119F (failure to make a request meaning “no relevant decision”); R v Immigration Appeal Tribunal, ex p Khatib-Shahidi [2000] INLR 491 (declined recommendation merely a “pre-executive decision”); {4.6.1} (prematurity/need for a ‘decision’). 5.1.4 Absence of a ‘decision’ not fatal. R v Secretary of State for Transport, ex p London Borough of Richmond Upon Thames (No 3) [1995] Env LR 409, 413 (Sedley J: “the want of an identifiable decision is not fatal to an application for judicial review”); R v Secretary of State for Health, ex p Imperial Tobacco Ltd [1999] EuLR 582 (in challenge regarding validity of EU Directive, statutory obligation to take implementing measures a sufficient ‘act’ to constitute the subject-matter of the proceedings); London Borough of Islington v Camp (1999) [2004] LGR 58 (appropriate claim for declaration albeit no decision nor proposed action, because useful purpose in the public interest); R (MacNeil) v Parole Board [2001] EWCA Civ 448 at §15 (leaving open whether Parole Board recommendation apt for judicial review). 5.1.5 Provoking a letter does not restart the running of time. {26.2.4} (delay: no circumvention merely by provoking a fresh letter). 5.1.6 Challenging a fresh decision: ‘rolling judicial review’. {5.4}

5.2 Spectrum of possible targets. Alongside decisions there are a wide range of things which public authorities do, fail to do, or even may be about to do, which can be the focus of a judicial review claim in an appropriate case. 5.2.1 Targets for judicial review: CPR 54. See CPR 54.1(2)(a) (“a ‘claim for judicial review’ means a claim to review the lawfulness of (i) an enactment; or (ii) a decision, action or failure to act in relation to the exercise of a public function”). As to the use of the word “target”, see eg R (Gossip) v NHS Surrey Downs Clinical Commissioning Group [2019] EWHC 3411 (Admin) [2020] PTSR 1239 at §§37, 44 (Judge Allen). 5.2.2 Primary Legislation. {12.2} (HRA s.4: declaration of incompatibility); {12.3} (judicial review of primary legislation at common law). 5.2.3 Regulation/Rule/Order/Standing Order. R (Independent Workers Union of Great Britain) v Mayor of London [2020] EWCA Civ 1046 [2020] 4 WLR 112 (judicial review of Order amending congestion charge scheme); R (TP) v Secretary of State for Work and Pensions [2020] EWCA Civ 37 (judicial review of Universal Credit transitional regulations); R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21 [2019] 1 WLR 3289 (judicial review of new welfare regulations); R (Akbar) v Secretary of State for Justice [2019] EWHC 3123 (Admin) (judicial review of prison rule); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 (regulations quashed for breach of duty of adequate consultation); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §200 (declaration that rule ultra vires); R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 (successful judicial review of Order); R v Flintshire County Council, ex p Armstrong-Braun [2001] EWCA Civ 345 [2001] LGR 344 (quashing council’s

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standing order); R v SSHD, ex p Anderson [1984] QB 778 (prison standing orders ultra vires); R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58 [2016] 1 WLR 4550 (partially successful judicial review of housing benefit regulations); R (Brown) v SSHD [2015] UKSC 8 [2015] 1 WLR 1060 (declaration that Order unlawful); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 (Order in Council); R (Edison First Power Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 20 [2003] 4 All ER 209 (rating order). 5.2.4 Scheme/system/operation. R (Ward) v Hillingdon LBC [2019] EWCA Civ 692 [2019] PTSR 1738 (judicial review of housing allocation scheme); Turani v SSHD [2019] EWHC 1586 (Admin) (judicial review of Vulnerable Persons Resettlement Scheme); R (Just for Kids Law) v SSHD [2019] EWHC 1772 (Admin) [2019] 4 WLR 97 (judicial review of scheme for juvenile covert intelligence sources, set out in Order and Codes of Practice); R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §27 (judicial review of continuation of granting arms export licences); R (AIRE Centre) v SSHD [2018] EWCA Civ 2837 [2019] 1 WLR 3002 (judicial review of ‘operation’ for immigration questioning of arrested foreign nationals); R (Medical Justice) v SSHD [2011] EWCA Civ 1710 at §38 (successful judicial review quashing part of immigration removal policy); R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55 [2005] 2 AC 1 (judicial review of pre-clearance system operated at Prague airport); {32.5} (systemic challenges). 5.2.5 Ordinance/Bylaw/Practice/Resolution. R (Jewish Rights Watch Ltd) v Leicester City Council [2018] EWCA Civ 1551 [2019] PTSR 488 at §1 (judicial review of local authority resolution); R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54 [2011] 2 AC 15 at 16G (judicial review of practice or “new policy” of seeking to recover overpaid benefits); R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 (ordinance ultra vires); R v SSHD, ex p Doody [1994] 1 AC 531 (practice regarding tariff-setting for mandatory lifers); R v Weston-superMare Justices, ex p Shaw [1987] QB 640 (magistrates’ “listing practice”); R v Minister of Agriculture Fisheries and Food, ex p SP Anastasiou (Pissouri) Ltd [1995] 1 CMLR 569 (practice of allowing importation of fruit without proper certification); R v Herrod, ex p Leeds City Council [1978] AC 403 (judicial review of local authorities’ resolutions refusing to entertain applications for the grant or renewal of gaming licences over certain classes of premises). 5.2.6 Proposal/Draft. {4.6.2} (judicial review of proposed/intended action); {4.6.3} (judicial review of draft instruments). 5.2.7 Direction/Directive/Instruction. R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) at §§17, 36 (judicial review of decisions relating to Direction for Coronavirus Job Retention scheme); R (National Farmers Union) v Secretary of State for Environment, Food and Rural Affairs [2020] EWHC 1192 (Admin) (judicial review of direction); R (VIP Communications Ltd) v SSHD [2019] EWHC 994 (Admin) [2019] ACD 69 (judicial review of direction); R (A) v Secretary of State for Health and Social Care [2018] EWCA Civ 2696 [2019] 1 WLR 2979 (judicial review of NHS organ transplant prioritisation directions); Mossell (Jamaica) Ltd v Office of Utilities Regulations [2010] UKPC 1 (whether direction ultra vires); R v Secretary of State for the Environment, Transport and the Regions, ex p Channel Tunnel Group Ltd [2001] EWCA Civ 1185 (directions quashed on judicial review); R (Sullivan) v Maidstone Crown Court [2002] EWHC 967 (Admin) [2002] 1 WLR 2747 (local practice direction declared unlawful); R v Secretary of State for Transport, ex p Greater London Council [1986] QB 556 (successful judicial review of direction); R v London Transport Executive, ex p Greater London Council [1983] QB 484 (GLC establishing lawfulness of own direction issued to LTE); R v SSHD, ex p Brind [1991] 1 AC 696, 752A-B (judicial review of “directives” banning the use by TV companies of recorded speech of members of specified organisations); R v Chief Constable of Avon & Somerset, ex p Robinson [1989] 1 WLR 793

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(vires of instructions); R v City of Sunderland, ex p Baumber [1996] COD 211 (instructions to educational psychologists). 5.2.8 Notice/Declaration/Circular. R (British Pregnancy Advisory Service) v Secretary of State for Health and Social Care [2020] EWCA Civ 355 [2020] 1 WLR 3240 (judicial review of circular letter written to all doctors performing terminations, clarifying Department’s interpretation of the statute); R (Kay) v Metropolitan Police Commissioner [2008] UKHL 69 [2008] 1 WLR 2723 (judicial review of circular letter handed by police to participants in cycle ride); R (Morgan Grenfell & Co Ltd) v Inland Revenue Commissioners [2002] UKHL 21 [2003] 1 AC 563 (judicial review of notice requiring bank to disclose to the Inland Revenue its instructions to and advice of Counsel); R v Secretary of State for Health, ex p Macrae Seafoods Ltd [1995] COD 369 (challenge to declaration by Secretary of State); R v Secretary of State for Health, ex p Pfizer Ltd (1999) 2 CCLR 270 (judicial review granted of Circular, being advice intended to be relied on, as being contrary to domestic and EU law); Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 (whether DHSS advice contained in a “circular” letter interpreting the Abortion Act 1967 s.1(1) erroneous in law); R v SSHD, ex p Northumbria Police Authority [1989] QB 26 (judicial review of scheme introduced by Circular); R v Chief Constable of Leicestershire, ex p Henning [1994] COD 256 (judicial review of decision to send circular restricting individual solicitor’s clerk’s access to persons in police custody); R v SSHD, ex p Westminster Press Ltd [1992] COD 303 (no misstatements in Circular, as to statute or common law); R v Wandsworth LBC, ex p Beckwith [1996] 1 WLR 60 (on judicial review of council’s decision, considering whether Department of Health circular incorrect in law); R v Secretary of State for Health, ex p K (1998) 1 CCLR 495 (judicial review of Circular for alleged error of law). 5.2.9 Guidance/policy. R (Palestine Solidarity Campaign Ltd) v Secretary of State for Housing, Communities and Local Government [2020] UKSC 16 [2020] 1 WLR 1774 (successful judicial review of Secretary of State’s guidance to administrators of local government pension schemes); R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 (successful judicial review of Airports National Policy Statement); R (Al-Enein) v SSHD [2019] EWCA Civ 2024 [2020] 1 WLR 1349 at §§16-17 (challenge to Nationality Instructions and their application in the claimant’s case); R (Langton) v Secretary of State for Environment, Food and Rural Affairs [2019] EWCA Civ 1562 [2019] 4 WLR 151 at §1 (challenge to decision to issue guidance on badger culling); R (DS) v SSHD [2019] EWHC 3046 (Admin) [2020] Imm AR 409 at §1 (challenge to government policy as to reconsideration of human trafficking decision); R (ZS) v SSHD [2019] EWHC 75 (Admin) (judicial review challenge to policy guidance regarding arrangements for UK-relocation of Calais camp children); R (Elane-Cane) v SSHD [2018] EWHC 1530 (Admin) [2018] 1 WLR 5119 (HRA-compatibility of Passport Office’s policy of binary gender identification); BF (Eritrea) v SSHD [2019] EWCA Civ 872 [2020] 4 WLR 38 (legally flawed detention guidance); R (Butt) v SSHD [2019] EWCA Civ 256 [2019] 1 WLR 3873 at §§160, 176-177 (statutory guidance to higher education bodies not discharging statutory duty to ensure freedom of speech); R (AD) v Hackney LBC [2019] EWHC 943 (Admin) [2019] PTSR 1947 (judicial review of two special educational needs provision policies); R (British Homeopathic Association) v National Health Service Commissioning Board [2018] EWHC 1359 (Admin) [2018] PTSR 2031 (judicial review of decision-making process in relation to issuing guidance); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 (judicial review of coroner’s policy not to prioritise any death); R (Delta Merseyside Ltd) v Knowsley MBC [2018] EWHC 757 (Admin) at §47 (local authority policy document quashed); R (C) v Secretary of State for Work and Pensions [2017] UKSC 72 [2017] 1 WLR 4127 (judicial review of data retention policy); R (Medical Justice) v SSHD [2017] EWHC 2461 (Admin) [2017] 4 WLR 198 (guidance unlawful because inconsistent with regulations); R (Letts) v Lord Chancellor [2015] EWHC 402 (Admin) [2015] 1 WLR 4497 (guidance erroneous in law); R (Gudanaviciene) v Director of Legal Aid Casework [2014] EWCA Civ 1622 [2015] 1 WLR 2247 (HRA-incompatibility of guidance); R (E) v Governing Body of JFS [2009] UKSC 15 [2010] 2 AC 728 (legality of school’s admissions policy); R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240 (statutory “guidance”); 80

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Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (lawfulness of nonstatutory DHSS “Memorandum of Guidance”). 5.2.10 Advice/Recommendation/Opinion/Comment/Publication. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §69 (Prime Minister’s advice to the Queen “unlawful”); R (Barclay) v Lord Chancellor [2009] UKSC 9 [2010] 1 AC 464 at §§44-45 (judicial review of decisions of (a) Committee to recommend and (b) Privy Council to advise that there be Royal Assent for an Order in Council); R (Servier Laboratories Ltd) v National Institute for Health and Clinical Excellence [2010] EWCA Civ 346 (judicial review of decision not to recommend drug for NHS); R v Worthing Borough Council, ex p Burch (1985) 50 P & CR 53 (Secretary of State’s “opinion” as to likely planning permission); R (Tree and Wildlife Action Committee Ltd) v Forestry Commissioners [2007] EWHC 1623 (Admin) [2008] Env LR 100 (EIA opinion for planning process); R (Mowlem Plc) v HM Assistant Deputy Coroner for Avon [2005] EWHC 1359 (Admin) at §30 (coroner’s post-verdict comments unlawful); R v Secretary of State for the Environment, ex p Greenwich LBC [1989] COD 530 (whether information leaflet misstating the law); R v Liverpool City Council, ex p Baby Products Association [2000] LGR 171 (press release circumventing statutory machinery); R v Secretary of State for Transport, ex p Richmond-upon-Thames LBC [1994] 1 WLR 74 (press notice announcing proposed scheme); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525 at 530E, 533A (decisions announced in press releases). 5.2.11 Action/conduct. R (Miller) v College of Policing [2020] EWHC 225 (Admin) at §§7, 100, 283, 289 (successful judicial review of “the police’s actions towards the claimant including turning up at his workplace and warning him about criminal prosecution”); R (Ingenious Media Holdings plc) v HMRC [2016] UKSC 54 [2016] 1 WLR 4164 (successful judicial review of an off-the-record briefing of journalists by a senior Revenue official); R (Rottman) v Commissioner of Police for the Metropolis [2002] UKHL 20 [2002] 2 AC 692 (judicial review of search of premises); R (Saadi) v SSHD [2002] UKHL 41 [2002] 1 WLR 3131 (judicial review of detention of asylum-seekers for speedy decision-making). 5.2.12 Inaction/Failure/Refusal. R (SXM) v Disclosure and Barring Service [2020] EWHC 624 (Admin) [2020] 1 WLR 3259 at §1 (judicial review of refusal to inform claimant whether individual placed on DBS barred list); R (Good Law Project) v Electoral Commission [2019] EWCA Civ 1567 [2020] 1 WLR 1157 at §1 (challenge to defendant’s decision not to open an investigation); R (Raja) v Redbridge LBC [2020] EWHC 1456 (Admin) at §14 (challenge to “failure” to act, “ongoing”), §19 (“A claimant may impugn inaction or a failure or refusal”); R (RD (A Child) v Worcestershire County Council [2019] EWHC 449 (Admin) at §72 (challenge to “the absence of any transition planning”), §97 (no sound delay objection); R (National Aids Trust) v NHS England [2016] EWCA Civ 1100 [2017] 1 WLR 1477 (successful judicial review of defendant’s refusal to consider use of drug in its commissioning process); R (HC) v SSHD [2013] EWHC 982 (Admin) [2014] 1 WLR 1234 (refusal to review code of practice); M v Scottish Ministers [2012] UKSC 58 [2012] 1 WLR 3386 (failure to make regulations so that legislation effective from its specified implementation date); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513 (failure to bring statutory scheme into force); R (Pretty) v DPP [2001] UKHL 61 [2002] 1 AC 800 (refusal to agree not to prosecute); R (Green) v Police Complaints Authority [2004] UKHL 6 [2004] 1 WLR 725 (refusal to disclose material); R (O’Byrne) v Secretary of State for the Environment, Transport and the Regions [2002] UKHL 45 [2002] 1 WLR 3250 (refusal to consent to sale to council tenant); R v Independent Television Commission, ex p TV Danmark 1 Ltd [2001] UKHL 42 [2001] 1 WLR 1604 (refusal to consent to exclusive TV transmission); R v Richmond upon Thames LBC, ex p McCarthy & Stone (Developments) Ltd [1992] 2 AC 48, 49G (refusal to revoke charging policy); R v General Medical Council, ex p Gee [1987] 1 WLR 564 (refusal to amend disciplinary charges); R v Northavon District Council, ex p Smith [1994] 2 AC 402 (refusal to accede to request); R v Chief Constable of the West Midlands Police, ex p Wiley [1995] 1 AC 274 (refusal to give undertaking); {24.4.8}-{24.4.12} (mandatory order); {39.2.6} (duty not to delay). 5.2.13 Other. R (Christian Concern) v Secretary of State for Health and Social Care [2020] EWHC 1546 (Admin) [2020] ACD 84 (judicial review of approval); R (Sergeant) v First 81

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Minister of Wales [2019] EWHC 739 (Admin) [2019] 4 WLR 64 at §52 (judicial review of operational protocol for independent inquiry); Wightman v Secretary of State for Exiting the European Union (Case C-621/18) [2019] QB 199 at 204A (judicial review of UK Government’s “position” on whether Brexit notification irrevocable).

5.3 Multiple targets/target-selection.16 Judicial review claims frequently arise in contexts involving several, or the selection of one from several, interrelated potential targets. These may be connected ‘vertically’ (eg an instrument made by one public authority and a decision made under it by another) or ‘horizontally’ (eg a decision and its later implementation, by the same public authority). They are likely to be sequential. The claimant’s timing dilemma will be whether to challenge early and risk criticism for prematurity, or later and risk being found to have fatally delayed. 5.3.1 Vertical examples: regulations/scheme and/or decision. R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 (judicial review of decision and rule prohibiting disclosure of information about it); R v Secretary of State for Social Security, ex p Britnell [1991] 1 WLR 198 (challenge to “decision” to deduct overpayment, challenged on basis that regulation ultra vires); Bromley LBC v Greater London Council [1983] 1 AC 768 (challenge to rating precept, though turning on legality of scheme being funded); Singh (Pargan) v SSHD [1992] 1 WLR 1052 (regulation and decision to serve notice under it); Maynard v Osmond [1977] QB 240 (disciplinary regulations and decision under them); Cinnamond v British Airports Authority [1980] 1 WLR 582 (bylaw and notice); R v Secretary of State for the Environment, ex p Brent LBC [1982] QB 593 (Order and decision); R v Criminal Injuries Compensation Board, ex p P [1995] 1 WLR 845, 852E-G (following refusal of compensation, challenge to decision revising scheme). 5.3.2 Vertical examples: circular/guidance/policy and/or decision. R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074 (judicial review granted of decision, on the basis that the applicable policy criteria had previously been determined unlawfully and unfairly); R (Miller) v College of Policing [2020] EWHC 225 (Admin) at §7 (judicial review of operational guidance and how individual police force dealt with a complaint); R (JP) v SSHD [2019] EWHC 3346 (Admin) [2020] 1 WLR 918 at §§1-2 (judicial review of decisions and policy as to their determination); BF (Eritrea) v SSHD [2019] EWCA Civ 872 [2020] 4 WLR 38 at §5 (judicial review of detention decisions and applicable policy); R (Williams) v Caerphilly County Borough Council [2020] EWCA Civ 296 [2020] PTSR 1130 at §5 (judicial review of strategy adoption decision and closure decision); R (PK (Ghana)) v SSHD [2018] EWCA Civ 98 [2018] 1 WLR 3955 at §§61-62 (in judicial review challenge to decision, CA quashing decision and declaring policy unlawful); R (Bibi) v SSHD [2015] UKSC 68 [2015] 1 WLR 5055 at §55, 74, 101 (in judicial review challenge to immigration rule, SC concluding that the policy guidance required amendment); R (Ewing) v Isleworth Crown Court [2019] EWHC 288 (Admin) [2019] 2 Cr App R 9 (judicial review of decision to exclude from entering court and policy pursuant to which made); R (Condliff) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910 [2012] PTSR 460 (PCT’s policy and decision made under it); R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309 (decisions quashed because guidance erroneous in law); Newbury District Council v Secretary of State for the Environment [1981] AC 578, 621F, 628H-629A (decision “uninfected” by erroneous government circular); R v SSHD, ex p Simms [2000] 2 AC 115 (policy and decisions); R v General Medical Council ex p Colman [1990] 1 All ER 489 (judicial review of GMC’s guidance banning advertising and decision refusing to allow permission in claimant’s case); R v SSHD, ex p Flynn [1995] Imm AR 594 (border check policy and specific decision); R v Chief Constable of the North Wales Police, ex p AB [1999] QB 396 (policy and conduct pursuant to it); R v Felixstowe Justices, ex p Leigh [1987] QB 582 (journalist obtaining judicial review of magistrates’ policy, but not decision); R v East Lancashire Health Authority, ex p B [1997] COD 267 (whether policy

16The

equivalent paragraph in a previous edition was relied on in JR 65 [2016] NICA 20 at §102 (Gillen LJ).

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a fetter depending on attitude to individual cases); R v Accrington Youth Court, ex p Flood [1998] 1 WLR 156 (committal pursuant to unlawful policy). 5.3.3 Vertical examples: initial decision or appeal decision. R (Gossip) v NHS Surrey Downs Clinical Commissioning Group [2019] EWHC 3411 (Admin) [2020] PTSR 1239 at §§37-44 (correct “target” should have been the appeal decision upholding eligibility panel decision); R v SSHD, ex p Oladehinde [1991] 1 AC 254, 257D-H (deportation notices and IAT appeal decisions); R v Governors of the Bishop Challoner Roman Catholic Comprehensive Girls’ School, ex p Choudhury [1992] 2 AC 182, 187F (governors’ decision and tribunal’s dismissal of appeals); R v SSHD, ex p Abdi [1996] 1 WLR 298 (Home Secretary’s asylum certificates and immigration judges’ decisions upholding them); R v Law Society, ex p Singh & Choudry (1995) 7 Admin LR 249, 250B (decision and its confirmation on appeal); cf. R v SSHD, ex p Mande Ssenyonjo [1994] Imm AR 310 (having exhausted his rights of appeal, claimant could not now seek to challenge the underlying decision); {36.4.3} (whether appeal curing procedural unfairness: curative appeal); {36.4.4} (whether curative appeal: appeal not curing procedural unfairness). 5.3.4 Horizontal examples. R (Terra Services Ltd) v National Crime Agency [2020] EWHC 1640 (Admin) at §3 (judicial review challenge to (a) decision to grant warrant, (b) application for warrant, (c) decision to authorise search, (d) decision to direct application for warrant); R (Michalides) v Chief Constable of Merseyside [2019] EWHC 1434 at §1 (judicial review challenge to refusal of pension and refusal to refer that decision for reconsideration); R (Rathor) v Southampton Magistrates’ Court [2018] EWHC 3278 (Admin) [2019] ACD 25 at §1 (decision refusing to adjourn criminal trial and decision refusing to set aside that decision); R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §12 (judicial review challenge to 2005 decision to lift a hold on UN designation and 2010 decision refusing to extend request for de-listing); SXH v CPS [2017] UKSC 30 [2017] 1 WLR 1401 at §§39, 47 (continuation of prosecution could give rise to different considerations compared to decision to commence it); Kaur v SSHD [2019] EWCA Civ 1101 [2019] 4 WLR 94 at §15 (decision to refuse leave to remain appealable in principle, if causally vitiated by earlier decision to retain passport); R (Lewisham LBC) v Secretary of State for Health [2013] EWCA Civ 1409 [2014] 1 WLR 514 at §22 (decision and report on which it was based both ultra vires); R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 (discussing planning resolution and consequential planning permission); R v Inland Revenue Commissioners, ex p TC Coombs & Co [1991] 2 AC 283, 303G-304A (inspector’s notice, not commissioner’s approval); R v SSHD, ex p Broom [1986] QB 198 (Secretary of State’s implementation of decision dismissing prison officer); R (Interbrew SA) v Competition Commission [2001] EWHC 367 (Admin) (judicial review granted of Competition Commission’s recommendation and Secretary of State’s acceptance of it). 5.3.5 Whether target-selection solving problems of non-reviewability. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 (judicial review of advice given to the Queen) at §30 (“the power to order the prorogation of Parliament is a prerogative power … exercised … by the sovereign in person, acting on advice” which “situation does … place on the Prime Minister a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests”), §69 (holding that the Prime Minister’s advice to the Queen, the Order in Council and the prorogation of Parliament were all “unlawful, null and of no effect”); R (Barclay) v Lord Chancellor (No 2) [2014] UKSC 54 [2015] AC 276 at §38 (surprising if issues as to justiciability over legislative act could be avoided by challenging the advice given in the legislative process); R v Lord Chancellor, ex p Stockler (1996) 8 Admin LR 590 (judicial review of Lord Chancellor’s decisions as to High Court listing, in circumstances where High Court itself not reviewable); R v Comptroller of Patents, Designs and Trade Marks, ex p Lenzing AG [1997] EuLR 237 (impermissible to get round immunity from review of European Patent Office Board of Appeal by challenging consequential entry in UK register); R v Wiltshire County Council, ex p Lazard Brothers & Co Ltd The Times 13 January 1998 (judicial review available of resolution to make order, despite statutory ouster 83

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applying to orders once made); R v Lewes Crown Court, ex p Sinclair (1993) 5 Admin LR 1 (since Crown Court sentence not amenable to judicial review, court refusing circumvention by challenge to warrant of committal). 5.3.6 Delay and multiple targets. {26.2.20}; {26.2} (promptness and running of time); {26.3.4} (extension of time: parties’ prior agreement ‘not to take a time point’ (‘shield letter’)).

5.4 ‘Rolling judicial review’.17 Sometimes judicial review proceedings encounter a ‘moving target’. The focus of the claim may properly change, for example where the defendant reconsiders and reaches – or agrees that they will reconsider and reach – a fresh decision. One question is whether the proceedings are a suitable vehicle for addressing the moving picture, and to that end receiving updating evidence. There is a balance to be struck here (as elsewhere), between appropriate procedural rigour and appropriate procedural flexibility, to identify what approach in the individual case constitutes sound case-management, achieves fairness to the parties and promotes the interests of justice. 5.4.1 Procedural rigour/flexibility and new decisions: fact-specific case-management. R (Hussain) v Secretary of State for Justice [2016] EWCA Civ 1111 [2017] 1 WLR 761 §20 (appropriate case-management response where new adverse decision issued replacing decision impugned in judicial review depends on the context and balance of factors in the individual case), §27 (need for “a fact-specific focus on practicality and case management”); R (Dalton) v CPS [2020] EWHC 2013 (Admin) at §9 (Andrews J: “this Court must be assiduous to avoid form taking precedence over substance in cases where this would inhibit its important function of holding public bodies to account for abuses of power or other serious public law errors affecting the rights of the citizen. However, that does not mean that the parties are free to disregard the rules of civil procedure that apply to public law claims”), §13 (wrong to attempt to challenge a different decision on different grounds “without giving the Court any opportunity to consider whether there was justification for allowing the fresh claim to be brought within the existing proceedings (as there sometimes is)”), §56 (“on occasion when the decision maker re-makes a decision in the course of proceedings for judicial review, the Court will give favourable consideration to an amendment of the original grounds so as to make the new decision the focus of challenge. However, that depends on the circumstances, and it cannot be assumed without asking the Court that the case can evolve to encompass replacement decisions”). 5.4.2 Replacement decision accompanying pre-action letter of response. Judicial Review Pre-Action Protocol §23(a) (contemplating that pre-action letter of response may “where appropriate, contain a new decision” or may “give a clear timescale within which the new decision will be issued”). 5.4.3 Procedural flexibility: amended grounds where replacement decision at the permission stage. R (Hussain) v Secretary of State for Justice [2016] EWCA Civ 1111 [2017] 1 WLR 761 at §21 (Sales LJ: “where a defendant public authority faces an application by a claimant for permission to apply for judicial review of a particular decision, accompanied by evidence filed by the claimant, and in its summary grounds of defence served with the acknowledgment of service the defendant says it has made a new, second, decision in the light of that evidence which is again adverse to the claimant, then … [i]f the claimant has a properly arguable challenge to the new decision, it will typically be just, proportionate and appropriate to grant the claimant permission to amend his existing claim form”); Administrative Court: Judicial Review Guide (2020 edition) at §6.10.4 (“If the defendant has agreed to and already made a new decision which the claimant seeks to challenge, it may be more convenient for the parties and the Court to amend the claim to allow for the new decision to be challenged.

17The

equivalent paragraph in a previous edition was relied on in Sukhmander Singh v PSS [2009] HKCFI 917 at §11 (Hon Andrew Cheung J).

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The claimant should note the following guidance [citing Hussain at §22]: [1] The Court can impose a condition requiring the re-formulation of the claim and the re-preparation of any bundles of material, so as to eliminate any irrelevant surplus material and to work from a single set of papers. Any draft order or draft consent order seeking amendment of the claim in these circumstances should typically include a provision allowing for a new, amended claim bundle to be filed or, ideally, be accompanied by a copy of the proposed amended claim bundle. [2] The Court retains discretion to permit amendments and may make an assessment that overall the proper conduct of proceedings will best be promoted by refusing permission to amend and requiring a fresh claim to be brought. [3] The Court will be astute to check that a claimant is not seeking to avoid complying with any time limits by seeking to amend rather than commence a fresh claim. [4] A claimant seeking permission to amend would also be expected to have given proper notice to all relevant persons, including interested parties”). 5.4.4 Permission to amend claimant’s grounds: looking at the latest decision/measure. R (Dolan) v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin) at §66 (Lewis J allowing amendment where “the issue … is a limited, defined and discrete issue arising out of an amendment to the Regulations under challenge”); R (British Telecommunications Plc) v HM Treasury [2020] EWCA Civ 1 at §27 (Chancellor “maintained his decision” and claimant “amended its claim grounds so as to contend that the [new] decision was unlawful on the same grounds as the earlier decision and for additional reasons”); R (W) v SSHD [2019] EWHC 254 (Admin) at §8 (further decision addressed by amended grounds); E v SSHD [2004] EWCA Civ 49 [2004] QB 1044 at §77 (at least where defendant has “a continuing public responsibility … [i]t is often sensible … for the matter to be looked at in the light of the … most recent consideration of the matter, and the judicial review procedure is flexible enough to allow that”); R v SSHD, ex p Turgut [2001] 1 All ER 719, 735j-736b (where fresh decision made, generally convenient to substitute fresh immigration decision as the decision challenged in the proceedings); R (P) v Essex County Council [2004] EWHC 2027 (Admin) at §§35, 38 (where judicial review focusing on new decision, need promptly notified clear proposed amended grounds); R v Institute of Chartered Accountants, ex p Bruce 22 October 1986 unreported (where post-permission decision challenged on different grounds, pragmatic solution of applying arguability threshold to the question of permission to amend). 5.4.5 Defendant agreeing to reconsider: whether to stay the current proceedings. Administrative Court: Judicial Review Guide (2020 edition) at §6.10.3 (“In R (Bhatti) v Bury Metropolitan Borough Council [2013] EWHC 3093 (Admin) the Court warned that, where the defendant has agreed to reconsider the original decision challenged (thus effectively agreeing to quash the decision challenged without the intervention of the Court) it may not be appropriate to stay the claim or seek to amend the claim. Instead, it may be more appropriate to end the claim (see Chapter 22 of this Guide) and, if the claimant seeks to challenge the new decision, to commence a new claim. The exceptions to this principle, where the Court may be prepared to consider the challenge to the initial decision, are narrow, and apply only where: the case raises a point of general public importance; and the point which was at issue in relation to the initial decision challenged remains an important issue in relation to the subsequent decision”); R (Rathakrishnan) v SSHD [2011] EWHC 1406 (Admin) at §9 (where defendant agreeing to quashing order, wholly exceptional for claimant to be able to stay proceedings as a vehicle for challenge to future decision); R (Hussain) v Secretary of State for Justice [2016] EWCA Civ 1111 [2017] 1 WLR 761 at §17 (inappropriate to keep proceedings on foot to secure an existing hearing slot and jump the queue); R v SSHD, ex p Alabi [1997] JR 254 (permissible to challenge awaited fresh decision in existing proceedings, with stay when reconsideration awaited); R v Commissioner for Local Administration, ex p Abernethy [2000] COD 56 (stay of proceedings where defendant had agreed to reconsider); R (Khan) v Secretary of State for the Health [2003] EWCA Civ 1129 [2004] 1 WLR 971 (post-judgment adjournment to allow amending regulations to secure HRA-compatibility). 5.4.6 Lawful fresh decision: refusing remedy as a matter of discretion. R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339 at §§31, 49-50 (valid fresh decision can be a basis for refusing remedy as a matter of discretion), §95 (need for caution, including 85

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the need to be “clear that [it] is in substance an entirely fresh decision”), §62; R (Kiarie) v SSHD [2017] UKSC 42 [2017] 1 WLR 2380 at §30 (Caroopen guidance described as “valuable”). 5.4.7 Procedural rigour: rolling judicial review. R (Dolan) v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin) at §66 (Lewis J: “it is often undesirable to amend claim forms to include new challenges …”); Kenyon v Secretary of State for Housing Communities and Local Government [2020] EWCA Civ 302 at §28 (generally inappropriate to allow “rolling review” by reference to materials “not available to the decision-maker”); R (Spahiu) v SSHD [2018] EWCA Civ 2604 [2019] 1 WLR 1297 at §§60-62 (discussing the case law as to whether to permit “rolling review”), §63 (“It will usually be better for all parties if judicial review proceedings are not treated as ‘rolling’ or ‘evolving’, and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising postdecision material”); R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339 at §57 (discussing the case law in which the Court of Appeal had previously deprecated “rolling judicial review”); R (Dalton) v CPS [2020] EWHC 2013 (Admin) at §4 (agreement to quashing order and to make a fresh decision “should have brought these proceedings to an end”), §56 (“There is a world of difference between a re-made decision which, for example, takes into account fresh information but results in an identical decision to the first, on essentially the same grounds; and a re-made decision that cures the original ground of complaint and produces an entirely different outcome. [T]he latter category … would normally require a fresh claim to be brought … particularly if the grounds of challenge were completely different from those originally articulated”); {5.4.1} (procedural rigour/flexibility and new decisions: fact-specific case-management). 5.4.8 Procedural flexibility: rolling judicial review. R (Dolan) v Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin) at §66 (Lewis J: “However, there is a need for an appropriate degree of procedural flexibility”); SSHD v Said [2018] EWCA Civ 627 at §110 (McCombe LJ: “decided cases have shown that cases are infinitely different and flexibility is desirable, allowing for rolling judicial review where appropriate. The touchstone must be fairness to the parties”); R (Spahiu) v SSHD [2018] EWCA Civ 2604 [2019] 1 WLR 1297 at §63 (“there is no hard and fast rule”; “there will … be a need to maintain a certain procedural flexibility so as to do justice as between the parties”). 5.4.9 ‘Continuing’ matters and ‘rolling judicial review’. R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §60 (judicial review of “ongoing approach” to assessment of arms exports licences “iterative” and “appropriate for the Divisional Court to have regard to all relevant material up to the time of the hearing before it”); {26.2.16} (delay and ‘continuing’ act/state of affairs); {26.2.17} (delay and ‘continuing’ policy/practice); {26.2.18} (delay and ‘continuing’ duty/ unlawfulness), {26.2.19} (delay and ‘continuing’ question of incompatibility). Also of possible interest: R (Raja) v Redbridge LBC [2020] EWHC 1456 (Admin) at §18 (“rolling judicial review” appropriate here), §21 (“This case called for … procedural flexibility. … The design of the claim was permissible, sensible and has been vindicated. The parties were able to focus on the substance, and so was the Court. The central features of the case as brought were: a continuing statutory function; a continuing request for a particular care provision response; a continuing refusal of that request; and the consistent central issue as to whether the requested response was, in all the circumstances, the sole justifiable response such that the refusal was unreasonable in a public law sense. … There was no unfairness or prejudice. There was no problem of inadmissibility or irrelevance of fresh evidence. There was no need for the claim to be re-pleaded”). 5.4.10 Order including liberty to apply. {24.4.27} 5.4.11 Appellate courts: whether to look at latest decision. R (O) v Hammersmith and Fulham LBC [2011] EWCA Civ 925 [2012] 1 WLR 1057 at §18 (CA allowing argument as to lawfulness of fresh decision “for essentially pragmatic reasons”; as to position in High Court: “judicial review claims can be something of a moving target”; where “the first decision is 86

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succeeded by a new decision … the court may take the pragmatic view that it will adjudicate upon the real dispute between the parties without requiring distinct and separate applications for judicial review”, but with “the pleadings put in order”); R v SSHD, ex p Turgut [2001] 1 All ER 719, 736e-f (reluctance to look at fresh decision where case had already reached the CA); R (Holub) v SSHD [2001] 1 WLR 1359 at §10 (where fresh decision post-dating first instance hearing, focus of hearing in CA on new decision, thus “considering the matter as a reviewing court of first instance”); R (Assisted Reproduction and Gynaecology Centre) v Human Fertilisation and Embryology Authority [2002] EWCA Civ 20 [2003] 1 FCR 266 at §2 (amendment at permission stage in CA given fresh decision); R v Lambeth LBC, ex p A (1998) 10 Admin LR 209, 225G-H (where fresh decision reached following hearing of the judicial review at first instance, CA declining to consider propriety of the fresh decision); R v SSHD, ex p Canbolat [1997] Imm AR 281 (DC), 296-297 and [1997] 1 WLR 1569 (CA), 1576D (focus on original certification albeit having regard to subsequent exchanges); R v Human Fertilisation and Embryology Authority, ex p Blood [1999] Fam 151, 174E (CA considering legality of fresh post-judgment decision); R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland [2015] UKSC 9 [2015] AC 1065, 1070B-C (prior to Court of Appeal hearing, police deciding to destroy retained records), §40 (Lord Sumption: “As a result, both the nature of [the] complaint and its factual basis have significantly changed in the course of these proceedings”), §43 (Art 8 not violated when data “in fact retained for only two and a half years before the decision to delete it was made”).

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P6 Sources. Powers and duties of public authorities can arise under or by reference to legislation, common law, prerogative, policy guidance or international law. 6.1 Basic sources of powers and duties 6.2 Policy guidance 6.3 International law

6.1 Basic sources of powers and duties. Action by a public authority cannot be lawful unless: (1) based on positive power; (2) falling within relevant legal parameters and boundaries of that power; and (3) discharging relevant legal duties. Many legal sources are relevant to the delineation of the applicable powers and duties of the public authority. 6.1.1 Power is limited: no freestanding power/need for positive authority.18 R v Richmond LBC, ex p Watson [2001] QB 370 (CA), 385C (Buxton LJ: “A public body can only do that which it is authorised to do by positive law”); Commissioner of the Independent Commission of Investigations v Police Federation [2020] UKPC 11 at §15 (“a statutory corporation has only the powers conferred directly or indirectly upon it by statute”; “in public law, public officials are considered to have limited powers when they act in a public capacity even if they are natural persons. When natural persons hold statutory office, their public law powers are limited to those conferred on them by Parliament”), §38 (no “power to prosecute must necessarily be implied into a statute simply because private citizens enjoy a common law right to prosecute”); R (Adamson) v Kirklees Metropolitan Borough Council [2020] EWCA Civ 154 at §31 (“A local authority is a creature of statute. It can only do what it is authorised to do by statute, either expressly or by necessary implication”); R v AB [2017] EWCA Crim 534 [2017] 1 WLR 4071 at §75 (“Local authorities are entirely a statutory creation, and may only engage in activities which they are permitted to under the [Local Government Act 1972] and related Acts”); R v Secretary of State for Health, ex p B [1999] 1 FLR 656, 668G (public body does not have a freestanding function, but can only act according to the terms of the statute or delegated legislation giving it power, referring to Fewings [1995] 1 WLR 1037); R v Somerset County Council, ex p Fewings [1995] 1 All ER 513 (Laws J), 524f. {P39} (discretion/duty); {P46} (ultra vires). 6.1.2 Constitutional statutes. Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) [2003] QB 151 at §62 (Laws LJ: “a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights”; examples being Magna Carta 1297; the Bill of Rights 1689; the Union with Scotland Act 1706; the Representation of the People Acts 1832, 1867, 1884; the European Communities Act 1972; the Human Rights Act 1998; the Scotland Act 1998; the Government of Wales Act 1998), §63 (“Ordinary statutes may be impliedly repealed. Constitutional statutes may not. … A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and state, by unambiguous words on the face of the later statute”); R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §120; R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §67 (European Communities Act 1972 having “a constitutional character”); R (National Council for Civil Liberties) v SSHD [2018] EWHC 975 (Admin) [2019] QB 481 at §§70, 73 (1972 Act having a constitutional status and character, meaning that implied repeal unavailable); R v Commissioners of Customs and Excise, ex p Kay and Co [1996] 18The

equivalent paragraph in a previous edition was relied on in Department for Employment and Learning v Duncan [2008] NIIT 525 at §11.

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STC 1500, 1520j-1521a (contrary to the Bill of Rights for Customs and Excise to impose a cut-off on claims for overpaid tax, where Act containing right to repayment); R (Pretty) v DPP [2001] UKHL 61 [2002] 1 AC 800 at §39 (referring to the Bill of Rights); In Re S-C (Mental patient: Habeas corpus) [1996] QB 599, 603C (no confinement without authority of law as a “fundamental constitutional principle, traceable back to … Magna Carta”); R v SSHD, ex p Muboyayi [1992] QB 244, 254F-G (duty of the courts to uphold classic statement of the law in Magna Carta); R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 at §§30-34 (discussing guarantee in Magna Carta). 6.1.3 Status/influence of miscellaneous sources. R (Charlesworth) v Crossrail Ltd [2019] EWCA Civ 1118 (Crichel Down Rules); R (Garbet) v Circle 33 Housing Trust [2009] EWHC 3153 (Admin) (duty to consult sheltered accommodation resident arising from tenancy agreement); R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23 [2004] 1 AC 185 at §1 (BBC contract and Charter); R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58 [2008] 1 AC 332 and Al-Jedda v United Kingdom (2011) 53 EHRR 789 (whether UN Security Council Resolution qualifying HRA:ECHR Art 5); R (G) v Barnet LBC [2003] UKHL 57 [2004] 2 AC 208 at §68 (UK’s Report to UN Committee on the Rights of the Child); R v Asfaw [2008] UKHL 31 [2008] 1 AC 1061 at §13 (UNHCR guidance); R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §123 (“the resolution of the House of Commons … cannot affect the legal issues before this court. A resolution of the House of Commons is an important political act. … [It] is not legislation”). 6.1.4 Implied/incidental/ancillary/inherent powers. Commissioner of the Independent Commission of Investigations v Police Federation [2020] UKPC 11 at §29 (“implied power” if “such a power is necessary for, reasonably incidental to or consequential upon the performance of its functions under the … Act”), §40 (“The absence … of an express power to do anything that is calculated to facilitate or is incidental or conducive to the carrying out of the [statutory body’s] functions is not fatal … because in appropriate circumstances powers may be implied. However, whether such implication is possible will depend on the particular circumstances of each statutory scheme, in particular the express functions conferred on the statutory body”), §43 (no implied power to prosecute); R (JJ Management LLP) v HMRC [2020] EWCA Civ 784 [2020] 3 WLR 545 at §47 (informal investigation part of Revenue’s “incidental” power); R (SXM) v Disclosure and Barring Service [2020] EWHC 624 (Admin) [2020] 1 WLR 3259 at §§48, 57 (no “incidental” power of disclosure because inconsistent with statutory scheme); R (Vote Leave Ltd) v Electoral Commission [2019] EWCA Civ 1938 [2019] 4 WLR 157 at §22 (publishing report of investigation an “incidental” function); AS (Afghanistan) v SSHD [2019] EWCA Civ 208 [2019] 1 WLR 3065 (Upper Tribunal’s “slip rule” inherent jurisdiction, to correct errors of expression); R (OWD Ltd) v HMRC [2019] UKSC 30 [2019] 1 WLR 4020 at §45 (statutory scheme meaning no HMRC ancillary power to grant temporary approval to a person judged not to be fit and proper); Pham v SSHD [2018] EWCA Civ 2064 [2019] 1 WLR 2070 at §70 (SIAC having power to give summary judgment); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §109 (Lord Toulson: “Subject to any relevant statutory provisions, a judicial body has an inherent jurisdiction to determine its own procedures”); Ward v Metropolitan Police Commissioner [2005] UKHL 32 [2006] 1 AC 23 (no implied power to impose conditions on mental health warrant requiring named professionals be present), §24; R (Risk Management Partners Ltd) v Brent LBC [2011] UKSC 7 [2011] 2 AC 34 (local government incidental powers); R v Governor of Frankland Prison, ex p Russell [2000] 1 WLR 2027 at §11 (whether self-evident and pressing need, to give rise to an implied power to interfere with fundamental rights, applying R v SSHD, ex p Leech [1994] QB 198). 6.1.5 General/residual powers. Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §157 (Charity Commission should have been asked to make disclosure “under its general powers”); R (Wilkinson) v Commissioners of Inland Revenue [2005] UKHL 30 [2005] 1 WLR 1718 at §21 (limits on Revenue’s taxes management powers); R v West Yorkshire Coroner, ex p Smith (No 2) [1985] QB 1096 (coroner’s “ancient jurisdiction”); R v Chief National Insurance Commissioner, ex p Connor [1981] QB 758, 765A-B (NIC power under 89

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“the rules of public policy”); Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2004] UKPC 26 [2005] 1 AC 190 (criminal court having no inherent power to order postponed reporting of proceedings); R v Hertfordshire County Council, ex p Cheung The Times 4 April 1986 (transcript) (council having “power to reconsider their decision”), considered in Attorney-General of Trinidad and Tobago v Ayers-Caesar [2019] UKPC 2 at §§29-30. 6.1.6 Whether power to levy a charge. R v Richmond upon Thames LBC, ex p McCarthy & Stone (Developments) Ltd [1992] 2 AC 48 (considering the principle against the levying of charges without express statutory authority); R (Passenger Transport UK) v Humber Bridge Board [2003] EWCA Civ 842 [2004] QB 310 (rectifying construction of regulations to correct drafting mistake, by reading in words, providing the clear statutory authority necessary to empower the imposing of a charge), at §27 (clear statutory authority needed); {29.1.8) (rectifying construction: altered language effecting Parliament’s intention). 6.1.7 Prerogative powers. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §30 (Lady Hale and Lord Reed, describing “a prerogative power” as “a power recognised by the common law and exercised by the Crown”); R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §24 (Secretary of State’s decision to remove a hold on UN Security Council listing of suspected terrorist an “exercise of prerogative powers for the conduct of foreign relations”); Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37 [2017] 1 WLR 1865 at §§19-20 (power to issue national planning policies given, expressly or by implication, by statute; the statutory planning system having superseded any pre-existing prerogative power); R (XH) v SSHD [2017] EWCA Civ 41 [2018] QB 355 at §88 (prerogative power to cancel passport not abrogated by statute, by necessary implication); R (Munir) v SSHD [2012] UKSC 32 at §§26, 44 (decision-making granting or refusing leave to enter and remain “outside the rules” an exercise of statutory and not prerogative powers); R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §45 (exercise of prerogative powers “must be compatible with legislation and the common law”), §50 (“it is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law”), §51 (“ministers cannot frustrate the purpose of a statute or a statutory provision”), §52 (permissible to “affect the legal rights and duties of others” where “inherent in the prerogative power”), §53 (permissible to “change the facts to which the law applies”); R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §31 (“interference by the state with individual property rights cannot be justified by the exercise of prerogative powers, unsupported by specific statutory authority”), §34 (here, “directly and specifically authorised” by EU Regulation, given domestic legislative effect); {34.3.3} (judicial review of the Crown/prerogative powers). 6.1.8 Common law powers. Packham v Secretary of State for Transport [2020] EWHC 829 (Admin) at §53 (Secretary of State exercising “common law powers”) (CA is [2020] EWCA Civ 1004); R (AIRE Centre) v SSHD [2018] EWCA Civ 2837 [2019] 1 WLR 3002 at §38 (police questioning powers at common law); Commissioner of the Independent Commission of Investigations v Police Federation [2020] UKPC 11 at §§45, 47 (officials not having power to prosecute “in their … private capacity in the exercise of their common law rights as private citizens”, because “the legislation has made such a private prosecution … a practical impossibility”); R (Vote Leave Ltd) v Electoral Commission [2019] EWCA Civ 1938 [2019] 4 WLR 157 at §31 (statutory corporation not having non-statutory powers of a “natural person”); R v AB [2017] EWCA Crim 534 [2017] 1 WLR 4071 at §§75, 85 (local authority having no common law power to prosecute); R (Yam) v Central Criminal Court [2015] UKSC 76 [2016] AC 771 at §21 (Crown Court’s powers as to disclosure of in camera trial material “found in the common law”), §38; R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 [2016] 1 WLR 3923 at §33 (“in making planning policy the Secretary of State is exercising power given to the Crown not by statute but by the common law”); R (Catt) v Association of Chief Police Officers of England, 90

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Wales and Northern Ireland [2015] UKSC 9 [2015] AC 1065 at §7 (“At common law the police have power to obtain and store information for policing purposes”); R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [2014] 1 WLR 2697 at §§49, 83 (discussing “common law power”); R (New London College Ltd) v SSHD [2013] UKSC 51 [2013] 1 WLR 2358 at §28 (“the Crown possesses some general administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority”), §34; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 407C, 410C-D (prerogative power described as having “common law” source).

6.2 Policy guidance.19 It is common for public authority action to fall within the scope of relevant policy guidance, or of directions or instructions. Policy guidance may be ‘received’, from an external policy-maker (as when a local planning authority has regard to Government policy guidance); or it may be ‘self-adopted’ (as when the authority has regard to its own local policy). Policy guidance may be statutory or non-statutory. Basic public law duties can include: (1) to have a policy; (2) to publish it; (3) to interpret it correctly; and (4) to adhere to it (absent an identified sufficient reason justifying departure from it). 6.2.1 Distinction between guidance and directions/rules. R (Alvi) v SSHD [2012] UKSC 33 at §120 (Lord Clarke: “Guidance is advisory in character; it assists the decision maker but does not compel a particular outcome. By contrast a rule is mandatory in nature; it compels the decision maker to reach a particular result”); R v North Derbyshire Health Authority, ex p Fisher (1998) 10 Admin LR 27, 32A-E (“direction” involving an “absolute duty to comply”); Laker Airways Ltd v Department of Trade [1977] QB 643, 714 (“Guidance … does not compel any particular decision. Direction on the other hand … is compulsive in character”); R v Director of Passenger Rail Franchising, ex p Save Our Railways [1996] CLC 589, 597H (“An instruction is a direction with which the recipient must comply. Guidance is advice which the recipient should heed and respect; it should ordinarily be followed but need not if there are special reasons for not doing so”). 6.2.2 Policy guidance promotes transparency/fairness/predictability.20 R (DJ) v Welsh Ministers [2019] EWCA Civ 1349 [2020] PTSR 466 at §68 (Simler LJ: “a policy has the advantage of promoting fairness, consistency and efficiency; and encouraging transparency in decision-making”); Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799 at §40 (Lord Reed, referring to the “importance of Rules for administrative purposes”, as a “workable, predictable, consistent and fair” system of immigration control, citing Huang v SSHD [2007] UKHL 11 [2007] 2 AC 167 at §16); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §143 (Lord Clyde: “The formulation of policies is a perfectly proper course for the provision of guidance in the exercise of an administrative discretion. Indeed policies are an essential element in securing the coherent and consistent performance of administrative functions”); R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland [2015] UKSC 9 [2015] AC 1065 at §11 (Lord Sumption: “the rules need not be statutory, provided that they operate within a framework of law and that there are effective means of enforcing them”); R (Purdy) v DPP [2009] UKHL 45 [2010] 1 AC 345 (Art 8 requiring DPP to formulate a policy describing his approach to prosecuting assisted suicides abroad, to provide the requisite foreseeability for individuals to regulate their conduct); R v Chief Constable of the North Wales Police, ex p AB [1999] QB 396, 429H (“to comply with the requirement that a public authority should act ‘in accordance with the law’ … should have made the policy

19The

equivalent paragraph in a previous edition was relied on in Re Williamson [2009] NIQB 63 at §83 (Gillen J).

20The equivalent paragraph in a previous edition was relied on in Re Rodriguez [2013] UKUT 42 (IAC) at §20 (McCloskey J

and UTJ Spencer).

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which it was applying available to the public. To do so provides a safeguard against arbitrary action”); {59.1.5} (the ECHR ‘requirement of legality’ (‘prescribed by law’ etc)). 6.2.3 Duty to publish policy guidance/change in policy guidance. R (McMorn) v Natural England [2015] EWHC 3297 (Admin) [2016] PTSR 750 at §150 (Ouseley J: “if a public body has a policy to guide its decisions, lawful decision-making requires that the policy should be public”); R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018] EWCA Civ 2137 [2019] 1 WLR 929 at §39 (Coulson LJ: “if a public body indicates a clear and unequivocal policy that will be followed and applied in a particular type of case, then an individual is entitled to expect that policy to be operated, unless and until a reasonable decision is taken that the policy be modified or withdrawn”), §48 (“as a matter of good administration and transparent governance, any change to that policy had to been announced publicly”); R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §34 (Lord Dyson: “The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised”), §35 (describing the “right to know what [the] currently existing policy is, so that the individual can make relevant representations in relation to it”), §302 (Lord Phillips: “under principles of public law, it was necessary for the Secretary of State to have policies in relation to the exercise of her powers of detention of immigrants and that those policies had to be published”); R (Hemmati) v SSHD [2019] UKSC 56 [2019] 3 WLR 1156 at §49; R (Roberts) v Secretary of State for Justice [2009] EWHC 2321 (Admin) (unlawful failure to publish policy on prisoner transfer for hospital treatment); R (Walmsley) v Lane [2005] EWCA Civ 1540 [2006] LGR 280 at §57 (“it is inimical to good public administration for a public authority to have and operate … a policy without making it public”); R (Salih) v SSHD [2003] EWHC 2273 (Admin) at §52 (“constitutional imperative” not to withhold information about a policy relating to exercise of statutory power); R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 [2005] 1 WLR 2219 at §19 (virtues of making policy public); B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 [2005] 1 WLR 3796 at §43 (“If … a policy has been formulated and is regularly used by officials, it is the antithesis of good government to keep it in a departmental drawer”); R (Faarah) v Southwark LBC [2008] EWCA Civ 807 [2009] HLR 195 at §47(4) (administrative practice should have been published); R v SSHD, ex p Stafford [1998] 1 WLR 503 (CA), 521G (“because what is involved is an executive … restriction on liberty, the policy and the decisions taken under it need to be transparent … the Secretary of State’s policy needs to be clearly stated”); R v Ministry of Defence, ex p Walker [2000] 1 WLR 806 (better if MoD had publicised change in policy but change not unfair in the circumstances); R (Collaku) v SSHD [2005] EWHC 2855 (Admin) (sufficient here that reasons given reflecting the policy); R v Chief Constable of the North Wales Police, ex p AB [1999] QB 396, 429H (“both so as to accord with the principles of good administrative practice and to comply with the requirement that a public authority should act ‘in accordance with the law’ … should have made the policy which it was applying available to the public. To do so provides a safeguard against arbitrary action”); {59.1.5} (the ECHR ‘requirement of legality’ (‘prescribed by law’ etc)); R (L) v SSHD [2003] EWCA Civ 25 [2003] 1 WLR 1230 at §25 (“It is an aspect of the rule of law that individuals and those advising them, since they will be presumed to know the law, should have access to it in authentic form”); {48.1.12} (unlawfulness: application of an undisclosed policy); {39.2.13} (basic transparency duties/the principle of transparency). 6.2.4 Basic duties arising from statutory guidance. R (Britwell Parish Council) v Slough Borough Council [2019] EWHC 988 (Admin) [2019] ACD 70 at §27 (statutory duty to “have regard to guidance issued under this section”), §33 (duty to “proceed on a proper understanding of the Guidance”, to “take the Guidance into account and act in accordance with the Guidance unless they give a clear reason for departing from it”); R (S) v Croydon LBC [2017] EWHC 265 (Admin) [2017] PTSR 744 at §33 (statutory duty to “act under the general guidance of the Secretary of State”), §38 (Lavender J: “It follows that the defendant was obliged to follow the statutory guidance … unless there were cogent reason for departing from [it]”); R (TG) v Lambeth LBC [2011] EWCA Civ 526 [2012] PTSR 364 at §17 (Wilson LJ: “In the absence of a considered decision that there is good reason to deviate from it”, statutory guidance “must” be followed); R (Palestine Solidarity Campaign Ltd) v Secretary of State 92

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for Housing, Communities and Local Government [2020] UKSC 16 [2020] 1 WLR 1774 at §9 (regulations expressly requiring authority to act “in accordance with” guidance); R (TT) v Merton LBC [2012] EWHC 2055 (Admin) [2013] PTSR 710 at §68 (failure to comply with statutory guidance, and no cogent reasons for not doing so); In re Application for Judicial Review by JR17 [2010] UKSC 27 [2010] HRLR 27 (pupil suspension unlawful as incompatible with statutorily required scheme); R v Islington LBC, ex p Rixon [1997] ELR 66 (duty to comply with statutory guidance unless good reason for departure); R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58 [2006] 2 AC 148 at §21 (statutory guidance “should be given great weight”; duty to “depart only if it has cogent reasons for doing so”; “the court should scrutinise the reasons given … for departure with the intensity which the importance and sensitivity of the subject matter requires”), §69 (need for “cogent reasons if in any respect they decide not to follow it. These reasons must be spelled out clearly, logically and convincingly”); R (Khatun) v London Borough of Newham [2004] EWCA Civ 55 [2005] QB 37 at §47 (recipient of statutory guidance circular “must (a) take it into account and (b) if they decide to depart from it, give clear reasons for doing so”); R v Sutton LBC, ex p Tucker (1998) 1 CCLR 251 (decision unlawful and/or irrational for failure to follow statutory guidance); R v Cornwall County Council, ex p LH [2000] 1 FLR 236 (council’s policy contrary to statutory guidance and therefore unlawful); R (Bodimeade) v Camden LBC [2001] EWHC Admin 271 (2001) 4 CCLR 246 at §§22, 25 (approach contrary to statutory guidance); R (G) v Legal Services Commission [2004] EWHC 276 (Admin) (misdirection as to test in statutory guidance); R (M) v Islington LBC [2004] EWCA Civ 235 [2005] 1 WLR 884 at §59 (council entitled to decide “inappropriate” to follow the guidance here), §79 (guidance allowing the divergent response). 6.2.5 Non-statutory scheme. R v Criminal Injuries Compensation Board, ex p Ince [1973] 1 WLR 1334 (asking whether Board had correctly applied provisions of the non-statutory Criminal Injuries Compensation Scheme); R v Ministry of Defence, ex p Walker [2000] 1 WLR 806 (non-statutory scheme for compensating service personnel); R (Munir) v SSHD [2012] UKSC 32 (analysing concessionary policies as to statutory decisions outside the immigration rules); Mahad v Entry Clearance Officer [2009] UKSC 16 [2010] 1 WLR 48 at §10 (discussing the immigration rules and immigration directorates’ instructions); MO (Nigeria) v SSHD [2009] UKHL 25 [2009] 1 WLR 1230 (discussing status of immigration rules); R (MS (India)) v SSHD [2017] EWCA Civ 1190 [2018] 1 WLR 389 at §9 (as to the distinction between policies, instructions and immigration rules). 6.2.6 Duty of adherence to policy guidance.21 R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46 [2017] AC 52 at §17 (Lord Wilson: “Where a public authority issues a statement of policy in relation to the exercise of one of its functions, a member of the public to whom it ostensibly applies … has a right at common law to require the authority to apply the policy, so long as it is lawful, to himself unless there are good reasons for the authority not to do so”), §50 (Lord Reed: “the adoption of the policy created a public law duty to comply with it, absent good reason for non-compliance. That duty arose under the common law in accordance with principles of good administration”); R (Hemmati) v SSHD [2019] UKSC 56 [2019] 3 WLR 1156 at §§50, 69 (duty of adherence to stated policy unless good grounds for not doing so); CI (Nigeria) v SSHD [2019] EWCA Civ 2027 at §50 (“a public authority must act consistently with a policy that it has lawfully adopted, unless there is good reason not to do so”); Mandalia v SSHD [2015] UKSC 59 [2015] 1 WLR 4546 at §29 (Lord Wilson: “the applicant’s right to the determination of his application in accordance with policy is now generally taken to flow from a principle, no doubt related to the doctrine of legitimate expectation but free-standing, which was best articulated … as follows … ‘a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public’”), §36 (decision a breach of the duty of adherence); R (Kambadzi) v SSHD [2011] UKSC 23 [2011] 1 WLR 1299 at §36 (Lord Hope: “under domestic public law the

21The

equivalent paragraph in a previous edition was relied on in In re Okaro [2007] NIQB 21 at §10(3) (Gillen J).

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Secretary of State is generally obliged to follow his published detention policy”; “Policy is not law, so it may be departed from if a good reason can be shown”), §41 (“a failure by the executive to adhere to its published policy without good reason can amount to an abuse of power which renders the detention itself unlawful”); R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §26 (Lord Dyson: “a decision-maker must follow his published policy … unless there are good reasons for not doing so”), §202 (Lady Hale, referring to “the duty, imposed by the common law, for the Secretary of State and his officials to comply with a published policy, unless there is good reason not to do so”), §313 (Lord Phillips, describing departure from published policy as “a violation of principles of public law”); R (Mullen) v SSHD [2004] UKHL 18 [2005] 1 AC 1 at §60 (not irrational to depart from policy). 6.2.7 Adherence to policy guidance from an external source. R (Somerset County Council) v Secretary of State for Education [2020] EWHC 1675 (Admin) at §140 (Fraser J: “The [Schools Commissioner] was required to have regard to and understand the requirements of the [Secretary of State]’s published guidance; to appreciate when there had been a departure from this; and only to depart from policy requirements for good and properly articulated reasons”), §§144-146 (no good reason for departing from policy guidance); R (Chief Constable of West Midlands Police) v Panel Chair, Police Misconduct Panel [2020] EWHC 1400 (Admin) [2020] ACD 88 at §30 (Police Misconduct Panel having a duty to adhere to the approach set out in the sanctions guidance issued by the College of Policing), §65 (claim succeeding because of failure to adopt the approach in the guidance); R (Milner) v South Central Strategic Health Authority [2011] EWHC 218 (Admin) at §45 (Holman J: “a public body must have regard to relevant published government policy insofar as it is not inconsistent with statute and regulations, and if it is going to depart from the policy (which it may do) it must give its reasons for doing so”); R v Wolverhampton Metropolitan Borough Council, ex p Dunne (1997) 29 HLR 745 (duty to investigate humanitarian questions, in relation to eviction of travellers, as required by Government policy); {41.1.21} (legitimate expectation: promise by a different body). 6.2.8 Duty to understand/misdirection as to policy guidance. Gladman Developments Ltd v Canterbury City Council [2019] EWCA Civ 669 [2019] PTSR 1714 at §21 (“the decisionmaker must identify and understand the relevant policies”); R (Britwell Parish Council) v Slough Borough Council [2019] EWHC 988 (Admin) [2019] ACD 70 at §33 (“the local authority must proceed on a proper understanding of the Guidance”), §48 (“The defendant misinterpreted … the Guidance and, as a result, erred in concluding that its decision … was consistent with the Guidance”); Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 [2012] PTSR 983 at §17 (“a planning authority must proceed upon a proper understanding of the development plan”); R (LE (Jamaica) v SSHD [2012] EWCA Civ 597 at §29(viii) (asking “whether the decision-maker directed himself correctly as to the meaning of the policy”); R (MP) v Secretary of State for Justice [2012] EWHC 214 (Admin) at §110 (misinterpretation of Prison Service Order on prisoner childcare resettlement leave); R (Manchester Ship Canal Co Ltd) v Environment Agency [2012] EWHC 1643 (Admin) (classification as flood defences constituting a failure to properly interpret, apply or have regard to own policy); R (Savage) v Hillingdon LBC [2010] EWHC 88 (Admin) [2010] PTSR 1859 at §85 (“the council applied the policy as if it were rigid and thus misunderstood its own policy”); R (Attwood) v Health Service Commissioner [2008] EWHC 2315 (Admin) [2009] 1 All ER 415 at §§35-36 (misdirection, by applying a different test from the one articulated in ombudsman’s own documents); R (Heath & Hampstead Society) v Camden LBC [2008] EWCA Civ 193 [2008] 3 All ER 80 at §38 (error of law in misinterpreting planning policy guidance); Gransden v Secretary of State for the Environment (1987) 54 P & CR 86, 93-94 (“If the body making the decision fails to properly understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy”); R v SSHD, ex p Pierson [1998] AC 539 (considering whether decision consistent with own policy), 568G-569G (Lord Goff), 576E-577A (Lord Browne-Wilkinson), 583H (Lord Lloyd); {16.4.3}-{16.4.5} (interpretation of policy a question for the Court).

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6.2.9 Duty to justify ‘departure’ from policy guidance. R (Watermead Parish Council) v Aylesbury Vale District Council [2017] EWCA Civ 152 [2018] PTSR 43 at §29 (Lindblom LJ: “A local planning authority is … free to depart from national planning policy. … But if it does that, it must do so consciously and for good reason. … I do not think that was done here”); Nzolameso v Westminster City Council [2015] UKSC 22 [2015] PTSR 549 at §36 (“applicable principles”), §31 (including that: “clear reasons” and “very good reasons” required for departure from policy guidance); R (Rose) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin) (2014) 138 BMLR 101 at §107 (defendant’s policy unlawful departure from NICE guidelines, having “failed to advance clear, lawful reasons for departing”); R (Mavalon Care Ltd) v Pembrokeshire County Council [2011] EWHC 3371 (Admin) (2012) 15 CCLR 229 at §56 (departure from adopted “toolkit” without “good reason”); R (B) v Lewisham LBC [2008] EWHC 738 (Admin) [2009] 1 FCR 266 at §54 (unjustified departure from guidance); Philomena Gangadeen v SSHD [1998] Imm AR 106, 111 (“the Home Secretary is in ordinary circumstances obliged to act in accordance with his declared policy, and that, if he departs from it, it is incumbent on him to explain why”); R v SSHD, ex p Urmaza [1996] COD 479 (decision-maker can be held in public law to his policy, with departure requiring the articulation of a good reason); {55.3} (unjustified ‘departure’); {64.2.17} (reasons needed for ‘departure’: policy guidance). 6.2.10 Procedural duty arising from policy guidance. R (Harrison) v Secretary of State for Justice [2019] EWHC 3214 (Admin) [2020] ACD 17 at §74 (failure to follow published policy in declining to hold an oral hearing); R (Benchaouir) v SSHD [2019] EWHC 2606 (Admin) [2019] ACD 143 at §104 (policy guidance giving two-day time limit for reviewing detention and responding to reports), §108 (breach); R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46 [2017] AC 52 at §16 (duty to give reasons arising under circular); R (Kambadzi) v SSHD [2011] UKSC 23 [2011] 1 WLR 1299 (duty to conduct regular detention reviews, arising under published detention policy); In re Application for Judicial Review by JR17 [2010] UKSC 27 [2010] HRLR 27 at §§50-51 (duties to hear representations and give reasons arising under statutorily required scheme); R v Secretary of State for Education, ex p Cumbria County Council [1994] ELR 220, 224G-225F (circular making clear that wide consultation should ordinarily take place); R v Lambeth LBC, ex p N [1996] ELR 299 (ministerial guidance indicating that parents important consultees); R v Governors of the Sheffield Hallam University, ex p R [1995] ELR 267, 282B-284F (failure to follow own procedural rules); {61.1.28} (fairness following choice: procedural fairness when taking voluntary action). 6.2.11 Judicial review for non-adherence to/departure from policy: other illustrations. R (Irving) v Mid-Sussex District Council [2016] EWHC 1529 (Admin) [2016] PTSR 1365 at §62 (planning decision vitiated for failure to identify breach of planning policy); R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin) (whether transfer of detainees in Afghanistan consistent with policy not to transfer if real risk of torture or serious mistreatment); R (Gill) v Secretary of State for Justice [2010] EWHC 364 (Admin) (2010) 13 CCLR 193 at §§79, 81 (no good and clear reasons for non-compliance with own offending behaviour work policies); R (M) v Birmingham City Council [2008] EWHC 1863 (Admin) [2009] 2 FCR 327 at §69 (failure to apply policy as to residence order allowance); R (Jeeves) v Gravesham Borough Council [2006] EWHC 1249 (Admin) at §35 (decision flawed for failure to have regard to circular); R v North Derbyshire Health Authority, ex p Fisher (1998) 10 Admin LR 27 (policy unlawful because failure to have proper regard to NHS Circular); R (Coghlan) v Chief Constable of Greater Manchester Police [2004] EWHC 2801 (Admin) [2005] 2 All ER 890 (unlawful termination of disciplinary suspension, for failure to have regard to non-statutory guidance); {56.1.13} (policy guidance and relevancy); {56.1.10} (legitimate expectation as a relevancy/as to a relevancy). 6.2.12 Significance of the purpose/objective of policy guidance. {29.5.9} (interpreting policy guidance); R (Limbu) v SSHD [2008] EWHC 2261 (Admin) [2008] HRLR 1219 at §56

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(Blake J: “where the Minister has explained why the policy has been brought into being and what it is intended to achieve, the court’s scrutiny may extend to consider whether its terms as understood and applied by officials have illogically and irrationally frustrated its purpose”); R (Gurung) v SSHD [2013] EWCA Civ 8 [2013] 1 WLR 2546 at §26 (impugned provision not “unlawful on the grounds that it frustrates the purposes of the policy”); R (Dabrowski) v SSHD [2003] EWCA Civ 580 [2003] Imm AR 454 at §17 (“whatever the literal ambit”, common ground that purpose of immigration enforcement policy equally applicable to port cases); Shala v SSHD [2003] EWCA Civ 233 [2003] INLR 349 at §21 (importance of “the reasons for the policies”, not just “the wording”); R v SSHD, ex p Urmaza [1996] COD 479 (Secretary of State having erred in law in excluding claimant from Home Office policy whose meaning and purposes applied to him); R (Gashi) v SSHD [2003] EWHC 1198 (Admin) at §11 (interpretation of policy by reference to “the purpose of the policy”); R (AM (Kenya)) v SSHD [2009] EWCA Civ 1009 at §27 (claimant falling outside the letter and the spirit of the Home Office policy, by reference to an analysis of “the rationale and justification for the policy”), §51.

6.3 International law. International instruments may be ‘domesticated’ through statute or become justiciable through adoption of implementing policy guidance. International law obligations, whether under non-domesticated international instruments or under customary international law, may have a strong influence on the approach to public law accountability. But it is not a ‘given’ that the Court will find a way to secure compatibility between the actions of the state’s public authorities and the obligations upon the state in international law. 6.3.1 International law compatibility is a feature of the rule of law. Lord Bingham, 6th Sir David Williams Lecture, The Rule of Law (describing as an “existing principle of the rule of law” the requirement of “compliance by the state with its obligations in international law”). 6.3.2 Court sometimes reaches for/determines international law. Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 [2015] 1 WLR 3250 at §38 (Lord Wilson: “international conventions … are not part of our law so our courts will not ordinarily reach for them. Courts sometimes find, however, that the law which they are required to apply demands reference to them”); Khaira v Shergill [2014] UKSC 33 [2015] AC 359 (explaining that judges are “not … incapable of deciding questions of international law”). 6.3.3 International instrument ‘domesticated’ by statute. R v Reeves-Taylor [2019] UKSC 51 [2019] 3 WLR 1073 at §16 (Criminal Justice Act 1988 s.134 “implements in domestic law certain obligations of the United Kingdom pursuant to the United Nations Convention against Torture [etc] 1984”); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2018] UKSC 3 [2018] 1 WLR 973 at §8 (diplomatic inviolability Convention given domestic effect by 1964 Act); In re C (Children) [2018] UKSC 8 [2019] AC 1 §3 (Hague Abduction Convention given domestic effect by 1985 Act); Re Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72 [2006] 1 AC 495 (Warsaw Convention 1929, scheduled to the Carriage By Air Act 1961); Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46 [2005] 1 All ER 667 (Convention on the Grant of European Patents 1973, given effect by the Patents Act 1977); R (Adams) v Secretary of State for Justice [2011] UKSC 18 [2012] 1 AC 48 (International Convention on Civil and Political Rights Art 14(6) given effect by statutory provisions); In re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64 [2019] AC 1022 at §29(2) (“the conduct of the UK’s international relations is a prerogative power of the Crown”, and “Ministers of the Crown cannot alter the law … by the exercise of that prerogative power”, so that “where a treaty requires changes to the law of the UK, the long-standing practice … has been to obtain legislative authority for those changes before ratifying any international agreement”). 6.3.4 Statute enacted to give effect to international obligations: compatible construction. R v Reeves-Taylor [2019] UKSC 51 [2019] 3 WLR 1073 at §23 (phrase bearing the same meaning in domestic statute as in international Convention to which it was “intended to give 96

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effect”); Al-Maki v Reyes [2017] UKSC 61 [2019] AC 735 at §10 (Lord Sumption: “so far as an English statute gives effect to an international treaty, it falls to be interpreted by an English court in accordance with the principles applicable to treaties as a matter of international law … especially … where the statute gives effect not just to the substance of the treaty but to the text”); R v Gul [2013] UKSC 64 [2014] AC 1260 at §53 (albeit legislation enacted to give effect to international obligations, “there is no rule that the UK Government cannot go further than is required by an international treaty when it comes to legislating – the exercise often known as ‘gold-plating’”); Assange v Swedish Prosecution Authority [2012] UKSC 22 [2012] 2 AC 471 at §10 (Lord Phillips: where domestic Act “enacted in order to give effect to the Framework Decision”, it is “logical to approach the interpretation … on the presumption that Parliament intended that they should bear the same meaning”), §§121-122, 160); R (Adams) v Secretary of State for Justice [2011] UKSC 18 [2012] 1 AC 48, §14 (Lord Phillips, describing the “presumption that, where a statute is passed in order to give effect to the obligations of the United Kingdom under an international Convention, the statute should be given a meaning that conforms to that of the Convention”); Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL 43 [2006] 1 AC 221 at §30 (interpreting Arbitration Act 1996 s.68 in the light of the New York Arbitration Convention 1958, being its “likely … inspiration”); Reid v Secretary of State for Scotland [1999] 2 AC 512, 549G-H (Convention case law treated as relevant in considering statutory provision passed to give effect to ruling of the European Court of Human Rights); R v Asfaw [2008] UKHL 31 [2008] 1 AC 1061 at §28 (although statute intended to give effect to international instrument, disparity arising here and “no legitimate process of interpretation” enabling symmetry); {6.3.8} (international law: general presumption of domestic legislative compatibility). 6.3.5 Domestic instrument involving ‘extended rights’. R (Mullen) v SSHD [2004] UKHL 18 [2005] 1 AC 1 at §35 (“there is nothing to prevent Parliament when giving effect to the United Kingdom’s international obligations from giving the citizen more rights than those obligations require that he be given”); R (Ullah) v SSHD [2004] UKHL 26 [2004] 2 AC 323 at §20 (“It is of course open to member states to provide for rights more generous than those guaranteed by the Convention”); R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926 [2003] QB 1300 (CA) at §181 (“Compatibility with the Convention does not necessarily prevent English law from enhancing or further entrenching a Convention right”). 6.3.6 International law justiciable through policy guidance: ECAT. MS (Pakistan) v SSHD [2020] UKSC 9 [2020] 1 WLR 1373 at §20 (case law treating as a “justiciable error of law” a failure of the National Referral Mechanism Guidance accurately to reflect the European Convention on Action Against Trafficking (ECAT), so that “a decision based on that error would accordingly be unlawful”); R (PK (Ghana)) v SSHD [2018] EWCA Civ 98 [2018] 1 WLR 3955 at §§61-62 (decision quashed because guidance failing properly to reflect the obligation under ECAT; guidance itself therefore “unlawful”), §34 (“the Secretary of State’s policy guidance was intended to, and purported to, give effect to the Trafficking Convention; and that, if it failed to give effect to the Convention, then that would be a justiciable error of law”), applied in R (JP) v SSHD [2019] EWHC 3346 (Admin) [2020] 1 WLR 918 at §136 (incompatibility established); R (O) v SSHD [2019] EWHC 148 (Admin) at §14 (ECAT “has not been incorporated into English domestic law” but “insofar as the Secretary of State has adopted parts of [it] as his own policy in guidance … the Secretary of State must follow that guidance unless there is good reason not to do so”, citing G [2016] 1 WLR 4031); R (K) v SSHD [2018] EWHC 2951 (Admin) [2019] 4 WLR 92 at §7 (“the Convention is domesticated as the non-statutory administrative guidance … is said to be based on [the] Convention”); R (EM) v SSHD [2018] EWCA Civ 1070 [2018] 1 WLR 4386 at §19; R (E) v SSHD [2012] EWHC 1927 (Admin) at §§35, 47; R Atamewan) v SSHD [2013] EWHC 2727 (Admin) [2014] 1 WLR 1959 (policy guidance unlawful for incompatibility with ECAT, to which its purpose was to give effect). 6.3.7 International law obligation applicable through policy: other. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §223 (“necessarily implicit” 97

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in statutory duty that Secretary of State “must … have taken … government policy into account”), §216 (“Government’s express stated policy that it was committed to adhering to the Paris Agreement”), §227 (treating the Paris Agreement as irrelevant was “a material misdirection of law”), §230 (duty to take Paris Agreement into account “to comply with what has been enacted by Parliament … is an entirely conventional exercise in public law”), §233 (“failure to take it into account was enough to vitiate the [decision]”); In re McFarland [2004] UKHL 17 [2004] 1 WLR 1289 at §10 (ICCPR Art 14(6) treated as “incorporated” by ministerial policy statement which referred to it); R (Y) v SSHD [2012] EWHC 1075 (Admin) at §§11, 21-22 (“domestic implementation” of international obligations through Asylum Process Guidance); R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §§150-154 (domestic policy guidance a relevant source). 6.3.8 International law: general presumption of domestic legislative compatibility. R (Yam) v Central Criminal Court [2015] UKSC 76 [2016] AC 771 at §35 (Lord Mance, explaining that in a case which “concern[s] the construction of a statutory right, duty or power which would otherwise be of uncertain scope” it can be “seen or presumed that Parliament intended the statute to comply with the United Kingdom’s international obligations”); United States of America v Nolan [2015] UKSC 63 [2016] AC 463 at §27; R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 [2015] 1 WLR 1449 at §137 (Lord Hughes: “if the construction (ie meaning) of United Kingdom legislation is in doubt, the court may conclude that it should be construed, if otherwise possible, on the footing that this country meant to honour its international obligations”); R (T) v Secretary of State for Justice [2013] EWHC 1119 (Admin) [2013] ACD 88 at §29 (Sir John Thomas P and Cranston J: “the words of a United Kingdom statute, passed after the date of a treaty and dealing with the same subject matter, are to be construed as if they were intended to carry out the treaty obligation”); Assange v Swedish Prosecution Authority [2012] UKSC 22 [2012] 2 AC 471 at §98 (Lord Brown: “the general presumption that the United Kingdom legislates in compliance with its international obligations”), §112 (Lord Kerr: “The domestic law presumption that Parliament did not intend to legislate contrary to the United Kingdom’s international obligations”), §122 (Lord Dyson: “there is no doubt that there is a ‘strong presumption’ in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations”); A v SSHD [2005] UKHL 71 [2006] 2 AC 221 at §27 (Lord Bingham, referring to “the well-established principle that the words of a United Kingdom statute, passed after the date of a treaty and dealing with the same subject matter, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the treaty obligation and not to be inconsistent with it”); R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 [2008] 1 AC 153 at §§147-149 (presumption of compatibility albeit international instrument not itself requiring domestication); Mabon v Mabon [2005] EWCA Civ 634 [2005] Fam 366 at §26 (Family Proceedings Rules construed to meet international obligations); Salomon v Customs and Excise Commissioners [1967] 2 QB 116 at 141 (“we ought always to interpret our statutes so as to be in conformity with international law”). 6.3.9 International law: guiding development of the common law. R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 [2015] 1 WLR 1449 at §137 (Lord Hughes: “international treaty obligations may guide the development of the common law”); R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115 at §57 (Lord Reed, speaking of “the United Kingdom’s international obligations”: “The courts have … been able to take account of those obligations in the development of the common law”), §62 (“the courts endeavour to apply and if need be develop the common law … so as to arrive at a result which is in compliance with the UK’s international obligations”); R v Lyons [2002] UKHL 44 [2003] 1 AC 976 at §27 (Lord Hoffmann: “there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation”); Assange v Swedish Prosecution Authority [2012] UKSC 22 [2012] 2 AC 471 at §10 (Lord Phillips, describing “the presumption that our domestic law will accord with our international obligations”); A v SSHD [2005] UKHL 71 [2006] 2 AC 221 at §27 (Lord Bingham: “If, and to the extent that, development of the common law is called for, 98

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such development should ordinarily be in harmony with the United Kingdom’s international obligations and not antithetical to them”); DPP v Jones [1999] 2 AC 240, 259B (appropriate to have regard to international law obligations, where common law uncertain and developing, in resolving the uncertainty and deciding how the law should develop). 6.3.10 Customary international law: received into the common law. R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWCA Civ 1719 [2019] QB 1075 at §114 (Arden, Sales and Irwin LJJ: “customary international law is a source of common law rules, but will only be received into the common law if such reception is compatible with general principles of domestic constitutional law”), §131 (“the reception of the relevant rule of customary international law into the common law means that a rule of law is recognised according to which the exercise of prerogative powers may produce domestic consequences”), applied in R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010 at §§142-143; Belhaj v Straw [2017] UKSC 3 [2017] AC 964 at §§181-182 (common law having given effect to customary international law principle of state immunity); Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 [2017] ICR 1327 at §31 (“To identify a rule of customary international law, it is necessary to establish that there is a widespread, representative and consistent practice of states on the point in question, which is accepted by them on the footing that it is a legal obligation (opinio juris)”); R (Jimenez) v First-tier Tribunal [2019] EWCA Civ 51 [2019] 1 WLR 2956 at §56 (“a general state practice that is accepted as law”); R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 at §§117, 151 (CIL investigative duty would not be appropriately received into the common law given the nature of the primary legislation occupying the same area), §150 (Lord Mance: “Speaking generally … the presumption … is that CIL, once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration”); R v Jones [2006] UKHL 16 [2007] 1 AC 136 (no assimilation of crime recognised in CIL into domestic criminal law, it being a matter for Parliament to create a new crime). 6.3.11 International law: influential via ECHR/HRA. R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21 [2019] 1 WLR 3289 at §78 (duty under UN Convention on the Rights of the Child (CRC) informing the application of HRA:ECHR Art 14 read with Art 8); R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559 [2020] 2 All ER 813 at §85 (domestic courts “have regard to [the CRC] when interpreting Article 8”); In re McLaughlin [2018] UKSC 48 [2018] 1 WLR 4250 [2018] 1 WLR 4250 at §40 (“international obligations … inform the interpretation of the guarantees contained in the [ECHR] even though they have not been directly incorporated into United Kingdom law”); Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 at §328 (generally accepted international law is relevant to interpretation of ECHR rights); R (A) v Secretary of State for Health [2017] UKSC 41 [2017] 1 WLR 2492 at §34 (“in interpreting Convention rights, the [Strasbourg] court now frequently refers to the text of international conventions and even to the recommendations of committees set up to oversee observance of them by the parties to them”); R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 [2015] 1 WLR 1449 at §83; Zoumbas v SSHD [2013] UKSC 74 [2013] 1 WLR 3690 at §11 (CRC and Art 8); H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 [2013] 1 AC 338 at §§8, 10, 33 (in applying Art 8 to extradition, relevance of (a) the public interest in honouring the UK’s international extradition treaty obligations and (b) the child’s best interests as a primary consideration under the CRC); R (Quila) v SSHD [2011] UKSC 45 [2012] 1 AC 621 at §66 (relevance of international law instruments in Art 8 case concerning family life and forced/unforced marriages); ZH (Tanzania) v SSHD [2011] UKSC 4 [2011] 2 AC 166 at §§21-25 (influence of CRC on Art 8 jurisprudence); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §§98 and 106 (effect of UN security council resolutions on ECHR rights); R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 [2008] 1 AC 153 (international law influencing ECHR jurisdiction and so HRA territorial reach); A v SSHD [2005] UKHL 71 [2006] 2 AC 221 at 99

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§29 (influence of international law instruments on the interpretation of the ECHR); A v SSHD [2004] UKHL 56 [2005] 2 AC 68 at §63 (non-binding international materials supporting conclusion under the HRA); cf Moohan v Lord Advocate [2014] UKSC 67 [2015] AC 901 at §28 (ICCPR provision materially differently worded from ECHR provision); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §99 (international instruments having materially different wording to the ECHR). 6.3.12 International law: influence via EU law. {8.1.8} 6.3.13 Public body choosing to apply international law: Launder. R v SSHD, ex p Launder [1997] 1 WLR 839, 867C-F (decision may be “flawed because the decision-maker has misdirected himself on the Convention which he himself says he took into account”); R (Bashir) v SSHD [2018] UKSC 45 [2019] AC 484 at §7 (describing “the so-called ‘Launder principle’”); R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 [2015] 1 WLR 1449 at §91 (Lord Reed, describing Launder as a case where (a) no issue between the parties as to correct international law interpretation and (b) decision-maker “the decision-maker would have taken a different decision had his understanding of the Treaty been different: his clear intention was to act consistently with the United Kingdom’s international obligations”); R Atamewan) v SSHD [2013] EWHC 2727 (Admin) [2014] 1 WLR 1959 at §69 (error of law for policy guidance to misappreciate the Convention, the giving effect to which was its purpose); R (Shields) v Secretary of State for Justice [2008] EWHC 3102 (Admin) [2010] QB 150 (judicial review granted where Secretary of State relying on, but making an error of law as to, incompatibility with international Convention); R (Barclay) v Lord Chancellor [2009] UKSC 9 [2010] 1 AC 464 at §§45, 100 (Launder approach applicable where “the respondents expressly advised Her Majesty to approve the Reform Law on the ground that it did not involve any breach of the obligations of the United Kingdom under the Convention”); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756 at §47 (Launder principle inapplicable where defendant had made clear would have reached the same conclusion even if incorrect as to international law), §§51, 56, 66; R (Gentle) v Prime Minister [2008] UKHL 20 [2008] 1 AC 1356 at §26 (discussing Launder); R v DPP, ex p Kebilene [2000] 2 AC 326, 982A (Lord Steyn, endorsing general approach in Launder), 989B-E (claimants entitled to effective remedy if legal basis for decision unsound in this way). 6.3.14 International law as an aid to construction. Pitman v State of Trinidad and Tobago [2017] UKPC 6 [2018] AC 35 at §38 (“international materials may be legitimate aids to the construction of statutes when the latter admit of debate as to their meaning”); R (E) v Governing Body of JFS [2009] UKSC 15 [2010] 2 AC 728 at §81 (Lord Mance, referring to “the international legal background” including the International Convention on the Elimination of All Forms of Racial Discrimination and the recommendations of its implementation Committee as being “of possible relevance to the construction” of domestic statutory prohibition on race discrimination); R v SSHD, ex p Brind [1991] 1 AC 696, 747H-748A (“in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the [ECHR], the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it”); Garland v British Rail Engineering Ltd [1983] 2 AC 751, 771 (Lord Diplock); R v Broadcasting Complaints Commission, ex p Granada Television Ltd [1995] 3 EMLR 163 (interpreting “privacy” in the Broadcasting Act 1990 in accordance with the preHRA Art 8(1)); R v Khan (Sultan) [1997] AC 558, 580D; R v Crown Court at Manchester, ex p H [2000] 1 WLR 760, 771C (arguable ambiguity meaning need to construe Senior Courts Act 1981 s.29(3) compatibly with pre-HRA Art 6); MacDonald v Ministry of Defence [2001] HRLR 77 (applying pre-HRA ECHR because legislation ambiguous); JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 [2003] 1 AC 419 at §65 (common law principle of compatible construction unavailable since statute not ambiguous); R v Lyons [2002] UKHL 44 [2003] 1 AC 976 (pre-HRA ECHR overridden by domestic statute); HM Attorney-General v Associated

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Newspapers Ltd [1994] 2 AC 238 (Convention irrelevant since statute unambiguous); Quazi v Quazi [1980] AC 744, 808 (domesticating Act interpreted compatibly with relevant treaty where “ambiguous or vague” or involving “obscurity”). 6.3.15 International law yields to clear domestic statute. R v Asfaw [2008] UKHL 31 [2008] 1 AC 1061 at §29 (Lord Bingham: “While … one would expect any government intending to legislate inconsistently with an obligation binding on the UK to make its intention very clear, there can on well known authority be no ground in domestic law for failing to give effect to an enactment in terms unambiguously inconsistent with such an obligation”); R v Lyons [2002] UKHL 44 [2003] 1 AC 976 at §14 (international obligation “cannot override an express and applicable provision of domestic statutory law”), §28 (“If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not”), §40 (“In domestic law, the courts are obliged to give effect to the law as enacted by Parliament. This obligation is entirely unaffected by international law”), §§67, 69, 77; Re M & H (Minors) (Local Authority: Parental Rights) [1990] 1 AC 686, 721G-H (Lord Brandon: “while English courts will strive when they can to interpret statutes as conforming with the obligations of the United Kingdom under the Convention, they are nevertheless bound to give effect to statutes which are free from ambiguity in accordance with their terms, even if those statutes may be in conflict with the Convention”); R (Norris) v SSHD [2006] EWHC 280 (Admin) [2006] 3 All ER 1011 at §44 (extradition treaty not conferring municipal rights enforceable against own government, these being provided solely by domestic legislation); EN (Serbia) v SSHD [2009] EWCA Civ 630 [2010] QB 633 at §60 (“If … Parliament has enacted a statute that is unambiguously in conflict with the Refugee Convention, then subject to any other statutory or equivalent authority the courts must enforce the statute: because … the sovereign power of the Queen in Parliament extends to breaking treaties”); Assange v Swedish Prosecution Authority [2012] UKSC 22 [2012] 2 AC 471 at §§10, 99, 119 (Act enacted to give effect to EU Framework Agreement and not sufficiently clear that Parliament intended a different meaning). 6.3.16 Undomesticated international instruments: no direct effect. Volaw Trust and Corporate Services Ltd v Office of the Comptroller of Taxes (Jersey) [2019] UKPC 29 at §83 (applying the “dualist approach to international law”, instrument “does not form part of … domestic law” and “does not, therefore, provide a basis for challenging the validity” of the impugned action); R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §55 (“treaties are not part of UK law and give rise to no legal rights or obligations in domestic law”), §57 (the “dualist system” being a “necessary corollary of Parliamentary sovereignty”); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §96 (ratified treaty “is binding on the UK in international law” but “it is not part of UK domestic law and does not give rise to any legal rights and obligations in UK law unless and until it is incorporated by legislation”); R (Yam) v Central Criminal Court [2015] UKSC 76 [2016] AC 771 at §35 (Lord Mance: “The United Kingdom takes a dualist approach to international law”); R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 [2015] 1 WLR 1449 at §82 (Lord Reed: “an unincorporated international treaty … is not part of the law of the United Kingdom”); Moohan v Lord Advocate [2014] UKSC 67 [2015] AC 901 at §29 (Lord Hodge: “unless … treaties are incorporated into law, they do not affect domestic rights”); R (Chester) v Secretary of State for Justice [2013] UKSC 63 [2014] AC 271 at §119; Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §109 (Lord Phillips: “Treaties entered into by the United Kingdom do not take direct effect. Treaties are entered into by the Government under the Royal Prerogative, but unless and until Parliament incorporates them into domestic law, they confer no powers upon the executive nor rights or duties upon the individual citizen”); R v Asfaw [2008] UKHL 31 [2008] 1 AC 1061 at §69 (“It is for Parliament to determine the extent to which [international obligations] are to be incorporated domestically. That determination having been made, it is the duty of the courts to give effect to it”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §66

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(referring to “the well-established doctrine that [international law] does not form part of domestic law”); A v SSHD [2005] UKHL 71 [2006] 2 AC 221 at §27 (Lord Bingham: “a treaty, even if ratified by the United Kingdom, has no binding force in the domestic law of this country unless it is given effect by statute or expresses principles of customary international law”); R v Lyons [2002] UKHL 44 [2003] 1 AC 976 at §39 (rejecting an “attempt to give direct domestic effect to an international treaty”); Friend v Lord Advocate [2007] UKHL 53 at §§8-9 (hunting legislation not reviewable by reference to undomesticated international obligations). 6.3.17 Undomesticated international instrument relevant. KV (Sri Lanka) v SSHD [2019] UKSC 10 [2019] 1 WLR 1849 at §15, §21 (correct interpretation of the Istanbul Protocol relevant to domestic court’s evaluation of appropriateness of expert evidence in an asylum case); Mohammed v Ministry of Defence [2017] UKSC 1 [2017] AC 649 at §58 (Lord Mance: “When there is an appropriate domestic foothold and the matter is otherwise justiciable, domestic courts are well able to adjudicate upon and give effect to international law”); Arorangi Timberland Ltd v Minister of the Cook Islands National Superannuation Fund [2016] UKPC 32 [2017] 1 WLR 99 at §§79-80 (“international standards … which address … migrants’ social benefits” relevant to human rights proportionality assessment); R (Suppiah) v SSHD [2011] EWHC 2 (Admin) at §148 (compliance with UN Convention on the Rights of the Child required by the proper application of the Borders Citizenship and Immigration Act 2009 s.55); R (Shields) v Secretary of State for Justice [2008] EWHC 3102 (Admin) [2010] QB 150 (refusal of pardon unlawful because Secretary of State erroneously concluding that pardon would be incompatible with 1983 Convention on Transfer of Sentenced Persons), §18 (“the United Kingdom has adopted the Convention and adheres to it, and the Secretary of State, as the executive, has international obligations to comply with the Convention and a duty to respect those obligations in matters concerning foreign states. The Secretary of State therefore cannot and will not ignore such obligations”); Republic of Ecuador v Occidental Exploration and Production Co [2005] EWCA Civ 1116 [2006] QB 432 (unincorporated treaty relevant to determine rights and duties in English arbitration), at §31 (“English courts are not … precluded from interpreting or having regard to the provisions of unincorporated treaties. Context is always important”); R v G [2003] UKHL 50 [2004] 1 AC 1034 at §53 (Lord Steyn, referring to Art 40(1) of the UN Convention on the Rights of the Child (need to have regard to special position of children in criminal justice system): “the House cannot ignore the norm created by the Convention”); R (JS (Sri Lanka) v SSHD [2010] UKSC 15 [2011] 1 AC 184 at §§8-9 and SK (Zimbabwe) v SSHD [2012] EWCA Civ 807 (Rome Statute “the starting point” in interpreting war crimes refugee exclusion clause); A v SSHD [2005] UKHL 71 [2006] 2 AC 221 at §112 (reliance on UN Torture Convention); In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 [2012] 1 AC 144 (whether Hague Convention on Child Abduction 1980 compatible with the UN Convention on the Rights of the Child); R (Mullen) v SSHD [2004] UKHL 18 [2005] 1 AC 1 at §40 (UK not having signed or ratified ECHR Protocol VII, but: “It is, however, relevant to an understanding of the European jurisprudence”). 6.3.18 Human rights instruments as an exception to the dualist theory? R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 [2015] 1 WLR 1449 at §254 (Lord Kerr, dissenting: “the time has come for the exception to the dualist theory in human rights conventions to be openly recognised”, referring to In re McKerr [2004] UKHL 12 [2004] 1 WLR 807 at §§49-50 (describing the view of some commentators that “human rights treaties enjoy a special status”) and Lewis v Attorney-General of Jamaica [2001] 2 AC 50, 84). 6.3.19 International instrument and legitimate expectation. {41.1.17} (legitimate expectation: an attempted route to justiciable international law obligations). 6.3.20 Whether international law a relevancy in the exercise of a power. R (Yam) v Central Criminal Court [2015] UKSC 76 [2016] AC 771 at §35 (Lord Mance: “a domestic decisionmaker exercising a general discretion (i) is neither bound to have regard to this country’s international obligations nor bound to give effect to them, but (ii) may have regard to the United Kingdom’s international obligations, if he or she decides this to be appropriate”); R v SSHD, ex p Venables [1998] AC 407, 499F-H (conclusion in relation to tariff-setting 102

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and child offender that Secretary of State required to remain free to take account of welfare of child), supported by reference to UN Convention on the Rights of the Child), applied in R (MP) v Secretary of State for Justice [2012] EWHC 214 (Admin) at §170, §188(b) (application of policy on prisoners’ Childcare Resettlement Leave unlawful in failing to have regard to Art 3(1) UNCRC); cf R v SSHD, ex p Brind [1991] 1 AC 696, 761H-762A (pre-HRA ECHR not a relevancy); R v DPP, ex p Kebilene [2000] 2 AC 326, 371D-E (DPP not bound to come to a view, pre-HRA, as to whether prosecution compatible with ECHR Art 6); R v Ministry of Defence, ex p Smith [1996] QB 517, 558E (failure to take account of ECHR obligations “is not of itself a ground for impugning that exercise of discretion”); R v SSHD, ex p Engin Ozminnos [1994] Imm AR 287, 291-293 (ECHR articles having “at least some role [here] as relevant factors in the taking of a decision”); R v SSHD, ex p Rosa Maria Moreno Lopez [1997] Imm AR 11, 15 (Dyson J: “when the Secretary of State exercises his discretion and his powers, he is required to have regard to the Convention”); R (Hurst) v London Northern District Coroner [2007] UKHL 13 [2007] 2 AC 189 at §§56, 58 (not sound here to have regard to ECHR Art 2 rights as international law obligations); R v SSHD, ex p Norney (1995) 7 Admin LR 861, 871C-D (“where it is clear that the statutory provision which creates the discretion was passed in order to bring the domestic law into line with the Convention, it would … be perverse to hold that, when considering the lawfulness of the exercise of the discretion, the court must ignore the relevant provisions of the Convention”); R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657 at §61 (CA referring to UN Human Rights Committee General Comment); {56.1.6} (fundamental rights as a relevant consideration?). 6.3.21 International law: relevant to an exercise of the Court’s functions. Seepersad v Ayers-Caesar [2019] UKPC 7 at §15 (in considering interim relief, Court should apply child’s best interests principle under UN Convention on the Rights of the Child Art 3); F v M [2017] EWHC 949 (Fam) [2018] Fam 1 at §33 (Vienna Convention Art 31 meaning courts “are required to adopt an approach … that furthers the objectives of the [Refugee] Convention” and “to do otherwise would frustrate its primary purpose”); R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2008] EWHC 2048 (Admin) [2009] 1 WLR 2579 at §§142-143 (international law relevant to Court’s discretion as to whether to order disclosure by reference to common law duty); R (Edwards) v Environment Agency (No 2) [2010] UKSC 57 [2011] 1 WLR 79 at §33 (relevance of Aarhus Convention in environmental cases); Bulale v SSHD [2008] EWCA Civ 806 [2009] QB 536 at §24 (CA can consider any point which occurs to it and goes to the state’s compliance with its international obligations, because “as organs of the state the appellate authorities are bound to exercise their powers to ensure the state’s compliance with its international obligations”); R v Secretary of State for the Environment, ex p National & Local Government Officers’ Association (1993) 5 Admin LR 785, 795B (considering pre-HRA relevance of the ECHR when Court considering how its discretion may be exercised, citing Attorney General v Guardian Newspapers [1987] 1 WLR 1248, 1296-1297); Re M (Petition to European Commission of Human Rights) [1997] 1 FLR 755, 757D-E (“where an English court has to exercise a discretion, that is to say, it can act in one way or another, one or more of which violates the Convention and another of which does not, the court will seek to act in a way which does not violate the Convention”); R v Khan (Sultan) [1997] AC 558, 580E, 583C (Convention relevant to exercise of criminal court’s statutory discretion to exclude evidence improperly obtained); Camelot Group Plc v Centaur Communications Ltd [1999] QB 124 (Convention relevant to court’s assessment as to the public interest balance under s.10 of the Contempt of Court Act 1981).

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P7 Constitutional fundamentals.22 Certain fundamental principles and values, recognised by the Courts through common law, have constitutional status and impact. 7.1 The force of the common law 7.2 The rule of law 7.3 Separation of powers 7.4 Legislative supremacy 7.5 Access to justice 7.6 Constitutional/common law rights 7.7 Basic fairness/natural justice 7.8 Basic reasonableness

7.1 The force of the common law. In judicial review the parties, and the Court, frequently reach for the statute books to identify express or implied rights and duties which the Courts will then enforce. Just as close within reach, sometimes with greater potency and clarity and often as a better starting-point, are the common law rights, values and duties, for whose identification and principled development the Courts are directly responsible. 7.1.1 Importance of the ‘ordinary application of the common law’. R (Ingenious Media Holdings plc) v HMRC [2016] UKSC 54 [2016] 1 WLR 4164 at §28 (Lord Toulson: “It is a cardinal error to suppose that the public law remedies and principles associated with judicial review of the exercise of administrative power, developed by the common law from the ancient prerogative writs, occupy the entire field whenever the party whose conduct is under challenge holds a public position. It is important to emphasise that public bodies are not immune from the ordinary application of the common law, including in this case the law of confidentiality. The common law is multi-faceted and remains the bedrock of the English legal system”). 7.1.2 Start with the common law/domestic law. R (Jollah) v SSHD [2020] UKSC 4 [2020] 2 WLR 418 (false imprisonment claim succeeding by reference to the common law concept of ‘liberty’, broader than HRA Art 5 ‘deprivation of liberty’); R (King) v Secretary of State for Justice [2015] UKSC 54 [2016] AC 384 (SC applying common law fairness first, then considering HRA:ECHR Art 6); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §46 (Lord Mance: “Since the passing of the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights. But the Convention rights represent a threshold protection; and … they may be expected … to reflect and find their homologue in the common or domestic statute law. … In some areas, the common law may go further than the Convention. … And in time, of course, a synthesis may emerge. But the natural starting point in any dispute is to start with domestic law”), §133 (Lord Toulson: “there has sometimes been a baleful and unnecessary tendency to overlook the common law”; “it was not the purpose of the Human Rights Act that the common law should become an ossuary”); A v British Broadcasting Corporation [2014] UKSC 25 [2015] AC 588 at §56 (Lord Reed, explaining that “the common law principle of open justice remains in vigour, even when Convention rights are also applicable” and reiterating “the importance of the continuing development of the common law in areas falling within the scope of the Convention guarantees”); R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115 at §§54-63, especially §54 (Lord Reed: “The submissions on behalf of

22The

equivalent section in a previous edition was relied on in Taylor v Manager of Auckland Prison [2012] NZHC 1241 (New Zealand High Court) at §28 (Duffy J); AKJ v Metropolitan Police Commissioner [2013] EWHC 32 (QB) [2013] 1 WLR 2734 at §64 (Tugendhat J).

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the appellants focused on article 5.4, and paid comparatively little attention to domestic administrative law. As I shall explain, that approach does not properly reflect the relationship between domestic law (considered apart from the Human Rights Act 1998) and Convention rights”), §56 (“The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law”), §57 (“The importance of the [Human Rights] Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate”); R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 [2017] 4 WLR 92 at §33 (claimants submitting that “no meaningful distinction between the common law duty of fairness and the duty of fairness under articles 6 and 8 of the ECHR. But, save in one respect, they have based their challenge on common law fairness”), §144 (claim succeeding); R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 at §107 (CA upholding irrationality ground), §108 (unnecessary to address alternative ground based on Art 14); Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §49 (claim succeeding based on common law procedural unfairness which “makes it unnecessary to consider the more difficult question whether a duty of prior consultation arose by virtue of [HRA:ECHR] article 6 … or [A1P1]”). 7.1.3 ‘Constitutional principles’. R (National Council for Civil Liberties) v SSHD [2019] EWHC 2057 (Admin) [2020] 1 WLR 243 at §91 (Singh LJ and Holgate J: “Although this country does not have a written constitution, it certainly does have constitutional principles”); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §38 (Lady Hale and Lord Reed, describing the prerogative power of prorogation as a power “recognised by the common law” which “has to be compatible with common law principles”, and where “those principles may illuminate where its boundaries lie. In particular, the boundaries of a prerogative power relating to the operation of Parliament are likely to be illuminated, and indeed determined, by the fundamental principles of our constitutional law”); R (Chester) v Secretary of State for Justice [2010] EWCA Civ 1439 [2011] 1 WLR 1436 at §27 (referring to the concept of “a constitutional fundamental recognised by the common law”) (SC is [2013] UKSC 63 [2014] AC 271); R v SSHD, ex p Pierson [1998] AC 539, 575D (Lord Browne-Wilkinson: “A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect … the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament”), applied in R (Modaresi) v Secretary of State for Health [2013] UKSC 53 [2013] PTSR 1031 at §14. 7.1.4 ‘Constitutional rights’. Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §111 (Lord Phillips, describing the approach to “fundamental rights, sometimes described as constitutional rights”), §184 (Lord Rodger, referring to “basic common law rights”); Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) [2003] QB 151 at §62 (“In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental”); R v Lord Chancellor, ex p Lightfoot [2000] QB 597 (Laws J), 609B (referring to the concept of a “constitutional right” as meaning “that special class of rights which, in truth, everyone living in a democracy under the rule of law ought to enjoy”); R v SSHD, ex p Simms [2000] 2 AC 115, 125G (“primary right”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §45 (right of abode not a “constitutional right”); DPP v Ziegler [2019] EWHC 71 (Admin) [2020] QB 253 at §57, referring to Redmond-Bate v DPP [2000] HRLR 249, 257 (rights-recognition as part of “the constitutional shift which is now in progress”); R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115 at §58 (Lord Reed, recording Lord Bingham’s adoption of this passage from Lord Cooke in R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 at §30: “It is of great importance … that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the 105

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[ECHR]. Rights similar to those in the [ECHR] are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is … that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them”). 7.1.5 Fundamental ‘values’ and ‘principles’. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §40 (Lady Hale and Lord Reed, describing “legal principles of the constitution” as including “constitutional principles developed by the common law”), §39 (including “numerous principles of law, which are enforceable by the courts in the same way as other legal principles”); R (Elgizouli) v SSHD [2020] UKSC 10 [2020] 2 WLR 857 at §175 (Lord Reed, discussing “the idea of a right to life”: “the authorities support the recognition of what might more aptly be described as a value to which the courts attach great significance when exercising their supervisory jurisdiction”); Attorney General of Trinidad and Tobago v Dumas [2017] UKPC 12 [2017] 1 WLR 1978 at §15 (recognising as part of “constitutional adjudication”, by reference to authority from the Supreme Court of India, the role of the court “to uphold constitutional values”); Wainwright v Home Office [2003] UKHL 53 [2004] 2 AC 406 at §31 (Lord Hoffmann, referring to freedom of speech and privacy as “underlying values”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §89 (arguably a “fundamental principle of English law” that no citizen should be exiled from a British colony: Bancoult was considered in Minister of Home Affairs v Barbosa [2019] UKPC 41 [2020] 1 WLR 169). 7.1.6 The Courts’ responsibility to make constitutional principles and values effective. {60.1.1} 7.1.7 Judicial review based on effect of public authority action on constitutional principle/value. {60.1.2} (as to statutory power); {60.1.3} (as to prerogative power); {60.1.10}-{60.1.11} (judicial review for unconstitutionality: paradigm cases); {60.1.12} (judicial review because action abrogated a constitutional right/value: illustrations). 7.1.8 Constitutional principle: altering the law of the land needs parliamentary authority. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §40 (describing as one of the “constitutional principles developed by the common law” the principle that “the law of the land cannot be altered except by or in accordance with an Act of Parliament”), §41 (“prerogative powers [can] not be used to alter the law of the land”); R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2012] EWHC 2579 (Admin) [2012] ACD 109 at §29 (Singh J, describing the “fundamental constitutional principle” that “the executive has no power to make law save in those circumstances where it is granted power to do so by primary legislation”); {7.4} (legislative supremacy). 7.1.9 Constitutional principle: parliamentary accountability. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §40 (discussing the “constitutional principles developed by the common law”), §46 (identifying the “constitutional principle … of Parliamentary accountability … no less fundamental to our constitution than Parliamentary sovereignty. … Ministers are accountable to Parliament through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. By these means, the policies of the executive are subjected to consideration by the representatives of the electorate, the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power”). 7.1.10 Constitutional principle: bindingness of a court decision. R (Evans) v Attorney General [2015] UKSC 21 [2015] AC 1787 at §§51-52 (Lord Neuberger, describing this as a “constitutional principle”: “subject to being overruled by a higher court or (given Parliamentary supremacy) a statute … a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive”), §115 (describing the “fundamental composite principle … that a decision

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of a judicial body should be final and binding and should not be capable of being overturned by a member of the executive”). 7.1.11 Constitutional principle: the open justice principle. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §40 (describing as one of the “constitutional principles developed by the common law”: “the principle that justice must be administered in public”); Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629 at §41 (Lady Hale, describing the “constitutional principle of open justice”); Khuja v Times Newspapers Ltd [2017] UKSC 49 [2019] AC 161 at §§12-14 (Lord Sumption, describing the “principle of open justice”); A v British Broadcasting Corporation [2014] UKSC 25 [2015] AC 588 at §23 (Lord Reed, speaking of the “general principle of open justice”: “It is a general principle of our constitutional law that justice is administered by the courts in public, and is therefore open to public scrutiny. The principle is an aspect of the rule of law in a democracy”); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §47 (“common law principles of open justice”), §110 (“It has long been recognised that judicial processes should be open to public scrutiny unless and to the extent that there are valid countervailing reasons. This is the open justice principle”); R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 [2013] QB 618 at §1 (Toulson LJ, describing open justice as “a principle at the heart of our system of justice and vital to the rule of law”), §2 (“a constitutional principle … recognised by the common law”); Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 at §§10-11 (Lord Dyson, describing “the open justice principle” as “a fundamental common law principle”), §84 (“Open justice is a constitutional principle of the highest importance. It cannot be sacrificed merely on the say so of the parties”); H v News Group Newspapers Ltd [2011] EWCA Civ 42 [2011] 1 WLR 1645 at §19 (Lord Neuberger MR: “The cardinal importance of open justice … has long been a feature of the common law”); R (Ewing) v Isleworth Crown Court [2019] EWHC 288 (Admin) [2019] 2 Cr App R 9 at §§19, 23 (policy of preventing entry into Crown Court during delivery of judgment unjustified by reference to the open justice principle); R (O’Connor) v Aldershot Magistrates’ Court [2016] EWHC 2792 (Admin) [2017] 1 WLR 2833 (open justice principle meaning Courts and Tribunal Service had no freestanding power as occupier of court buildings to exclude individuals from the building to attend a public hearing), §28 (“Access to a court building for the purpose of attending a public hearing is a matter of legal right”). 7.1.12 Constitutional rights and legislative supremacy: Laws LJ’s ‘intermediate stage’. R (International Transport Roth GmbH) v SSHD [2002] EWCA Civ 158 [2003] QB 728 at §71 (Laws LJ: “In its present state of evolution, the British system may be said to stand at an intermediate stage between parliamentary supremacy and constitutional supremacy”); R v Lord Chancellor, ex p Witham [1998] QB 575, 581E (Laws J, emphasising that on the “present” state of the law, the common law continues to afford legislative supremacy to Parliament); R (Chester) v Secretary of State for Justice [2010] EWCA Civ 1439 [2011] 1 WLR 1436 at §27 (courts having no role to sanction government for failing to act upon a declaration of incompatibility under the HRA, but: “Of course if the failure were also to involve a violation of a constitutional fundamental recognised by the common law, the position would be entirely different”) (SC is [2013] UKSC 63 [2014] AC 271); cf R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29 [2005] 1 WLR 1681 at §92 (Lord Scott: “There are not, under English domestic law, any fundamental constitutional rights that are immune from legislative change”). 7.1.13 Common law rights going further than the ECHR. R (Jollah) v SSHD [2020] UKSC 4 [2020] 2 WLR 418 at §33 (common law liberty broader than Art 5); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §46 (Lord Mance: “the Convention rights represent a threshold protection. … In some areas, the common law may go further than the Convention”); Rabone v Pennine Care NHS Trust [2012] UKSC 2 [2012] 2 AC 72 at §113 (Lord Brown: “the court may in certain circumstances if it wishes decide a case against a public authority by developing the common law to provide for rights more generous than those conferred by the Convention”); Al Rawi v Security Service [2011] UKSC 34 [2012]

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1 AC 531 at §68 (“It is … open to our courts to provide greater protection through the common law than that which is guaranteed by the Convention”); R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 [2013] QB 618 at §88 (Toulson LJ, applying “the common law principle of open justice” and not the ECHR Art 10 case law: “The development of the common law did not come to an end on the passing of the Human Rights Act”), §89 (Art 10 jurisprudence “not entirely clear cut”); R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §27 (Lord Steyn, discussing the “principle of legality” recognised in Simms, as extending beyond the ECHR: “the Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmann’s dictum [in Simms] applies to fundamental rights beyond the four corners of the Convention”), endorsed in AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §150 (Lord Reed); R (Q) v SSHD [2003] EWCA Civ 364 [2004] QB 36 at §115 (anxious scrutiny under the Smith test {32.4.9} not “confined to rights set out in the European Convention on Human Rights”, but “apt … to apply to the right to seek asylum, which is not only the subject of a separate international convention but is expressly recognised by Article 14 of the Universal Declaration of Human Rights”); R (Zagorski) v Secretary of State for Business, Innovation and Skills [2010] EWHC 3110 (Admin) [2011] HRLR 140 at §80 (Lloyd Jones J: “the common law can act to protect human rights quite independently of the Human Rights Act 1998. However, the extent of such protection and the relationship of the common law to the statutory rights conferred by the Human Rights Act require careful consideration”; “the common law has shown a reluctance to remedy apparent lacunae in the ECHR regime”). 7.1.14 Protection of fundamental rights at common law. {32.4} (anxious scrutiny); {P35} (principle of legality). 7.1.15 ‘Constitutional statutes’. {6.1.2} 7.1.16 Common law discretionary powers securing ECHR-compatibility. Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §38 (Lord Mance: “The development of common law discretions, to meet Convention requirements and subject to control by judicial review, has become a fruitful feature of United Kingdom jurisprudence”), citing Doherty v Birmingham City Council [2008] UKHL 57 [2009] AC 367 at §§55, 70, 84, 133-135; Manchester City Council v Pinnock (No 1) [2010] UKSC 45 [2011] 2 AC 104 at §73. 7.1.17 Caution in developing common law rights in statutory territory. Moohan v Lord Advocate [2014] UKSC 67 [2015] AC 901 (common law right to vote) at §34 (Lord Hodge: “The UK Parliament through its legislation has controlled and controls the modalities of the expression of democracy. It is not appropriate for the courts to develop the common law in order to supplement or override the statutory rules which determine our democratic franchise”); In re McKerr [2004] UKHL 12 [2004] 1 WLR 807 at §30 (Lord Nicholls: “The courts have always been slow to develop the common law by entering, or re-entering, a field regulated by legislation”). 7.1.18 Common law duties: Norwich Pharmacal duty. R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2008] EWHC 2048 (Admin) [2009] 1 WLR 2579 (claimant successfully relying in judicial review on the common law duty under Norwich Pharmacal [1974] AC 133 principles, to provide information of alleged US torture of a Guantanamo Bay detainee, where the UK had arguably become involved in wrongdoing), applied in R (Aamer) v Secretary of State for Foreign Affairs [2009] EWHC 3316 (Admin); R (Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118 [2014] QB 112 (impermissible to use Norwich Pharmacal to obtain evidence for use in overseas proceedings).

7.2 The rule of law. The rule of law is a constitutional principle of the highest order. It underpins legitimate governance and effective and independent judicial protection. It is the fundamental constitutional principle behind judicial review. For it is the rule of law, allied to the principle of the separation of powers, which demands as a constitutional imperative the judicial supervision of public authority action. 108

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7.2.1 The rule of law as a constitutional principle. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §120 (describing the “express statutory recognition of the ‘rule of law’” in Constitutional Reform Act 2005 s.1 which refers to “the existing constitutional principle of the rule of law”); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 §122 (Lord Dyson: “there is no principle more basic to our system of law than the maintenance of the rule of law itself”); R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §28 (“the constitutional principle requiring the rule of law to be observed”); Beghal v DPP [2015] UKSC 49 [2016] AC 88 at §75 (“maintenance of the rule of law” as a “fundamental and well-established function[] of any government”); R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, 67F (“There is … no principle more basic to any proper system of law than the maintenance of the rule of law itself”). 7.2.2 Judicial review and the rule of law. {1.2} 7.2.3 The rule of law and effective governance by law. R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §68 (Lord Reed: “At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other”). 7.2.4 The rule of law governs the relationship between legislature and judiciary. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §119 (“the relationship between Parliament and the courts is governed by acceptable principles of the ‘rule of law’”). 7.2.5 The rule of law and democracy require effective judicial protection. A v SSHD [2004] UKHL 56 [2005] 2 AC 68 at §42 (Lord Bingham: “the judges in this country are not elected and are not answerable to Parliament. … But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself”, a passage cited in R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §55), also §113 (Lord Hope: “review by the courts” as “a constitutive element of democratic government”); R (Chester) v Secretary of State for Justice [2013] UKSC 63 [2014] AC 271 at §88 (Lady Hale: “in any modern democracy, the views of the public and Parliamentarians cannot be the end of the story. Democracy is about more than respecting the views of the majority. It is also about safeguarding the rights of minorities, including unpopular minorities. Democracy values everyone equally even if the majority does not. … It follows that one of the essential roles of the courts in a democracy is to protect those rights”). 7.2.6 The Courts decide the content and limits of the rule of law. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §120-121 (“it is for the courts, and ultimately the Supreme Court … to determine [the] contents and limits” of the “constitutional principle of the rule of law”). 7.2.7 The rule of law and the independence of the judiciary. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §42 (referring to the “independence of the judiciary”: “In the broadest sense, the role of the judiciary is to uphold and further the rule of law; more particularly, judges impartially identify and apply the law in every case brought before the courts”); Archie v Law Association of Trinidad and Tobago 109

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[2018] UKPC 23 at §18 (“A vital element in any modern constitution is the independence of the judiciary from the other arms of government, the executive and the legislature”); Independent Jamaica Council for Human Rights (1998) Ltd v Marshall-Burnett [2005] UKPC 3 [2005] 2 AC 356 at §12 (Lord Bingham: “independence of the judges (or, put negatively, the protection of judges from executive pressure or interference) is all but universally recognised as a necessary feature of the rule of law”). 7.2.8 Dual sovereignty: Parliament and Judiciary. {12.3.9}

7.3 Separation of powers. The constitutional principle of the separation of powers identifies distinct functions for the legislative, executive and judicial branches. For judicial review, the separation of powers means two things: (1) certain legislative and executive functions call for appropriate restraint and respect by the Courts; and (2) certain judicial functions – including deciding questions of law and legality – are inalienable constitutional functions of the Courts. 7.3.1 Separation of powers as a constitutional principle. Gilham v Ministry of Justice [2019] UKSC 44 [2019] 1 WLR 5905 at §20 (Lady Hale: “Fundamental to the constitution of the United Kingdom is the separation of powers: the judiciary is a branch of government separate from and independent of both Parliament and the executive”); R (National Council for Civil Liberties) v SSHD [2019] EWHC 2057 (Admin) [2020] 1 WLR 243 at §91 (Singh LJ and Holgate J: “One of [the recognised] constitutional principles is the separation of powers, in particular as between Parliament and the courts”); R (Gill) v Cabinet Office [2019] EWHC 3407 (Admin) at §76 (Lang J: “The principle of the separation of powers is an established constitutional convention”); R (Anderson) v SSHD [2002] UKHL 46 [2003] 1 AC 837 at §39 (Lord Steyn: “the separation of powers between the judiciary and the legislative and executive branches of government is a strong principle of our system of government”); Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157B-158C (“the British constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them. … [T]he role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it”); State of Mauritius v Khoyratty [2006] UKPC 13 [2007] 1 AC 80 at §12 (“The idea of a democracy involves a number of different concepts. The first is that the people must decide who should govern them. Secondly, there is the principle that fundamental rights should be protected by an impartial and independent judiciary. Thirdly, in order to achieve a reconciliation between the inevitable tensions between these ideas, a separation of powers between the legislature, the executive, and the judiciary is necessary”); DPP v Mollison (No 2) [2003] UKPC 6 [2003] 2 AC 411 at §13 (separation of powers requiring that Jamaican statute, involving detention at the Governor-General’s pleasure, to be read as being at the court’s pleasure). 7.3.2 Separation of powers: Courts’ function of deciding questions of law. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §36 (Lady Hale and Lord Reed: “no question of justiciability, whether by reason of subject matter or otherwise, can arise in relation to whether the law recognises the existence of a prerogative power, or in relation to its legal limits. Those are by definition questions of law. Under the separation of powers, it is the function of the courts to determine them”). 7.3.3 Non-reviewability and the separation of powers. {34.4} (‘non-reviewable’ public functions); R (Gill) v Cabinet Office [2019] EWHC 3407 (Admin) at §109 (pre-emptive claim to contemplated secondary legislation to be laid before Parliament by Her Majesty in Council, a claim “in breach of … the constitutional convention of the separation of powers”), §108 (“this is not an exceptional case which justifies any departure from the general rule that this Court will respect the separation of powers and so not interfere with Parliamentary proceedings”). 7.3.4 Judicial restraint and the separation of powers. R (Patel) v Lord Chancellor [2010] EWHC 2220 (Admin) at §38 (Thomas LJ and Silber J: “Judicial restraint … is underpinned 110

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by the separation of powers which means that the Lord Chancellor is entitled to a built-in latitude (or margin of discretion) in this decision making, given the significant expenditure of public funding at stake and the need to balance the wider public interest”); {P13} (judicial restraint).

7.4 Legislative supremacy. The constitutional principle of legislative supremacy (parliamentary sovereignty) recognises that the Westminster Parliament has the function of enacting primary legislation, designed as its sees fit. Legislative supremacy underpins a judicial restraint on judicial review: that the Courts do not question primary legislation enacted by Parliament. It also underpins a judicial vigilance: that the Courts enforce what Parliament has enacted, and protect Parliament’s ongoing ability to act, which principles can involve holding the executive to account. Legislative supremacy, a constitutional principle developed by the common law, is not absolute. There is, moreover, an ongoing dynamism to legislative supremacy, which the Courts cannot allow to be lawfully undermined. That dynamism provides an explanation for the constitutional inalienability of judicial review: the rule of law requires that Courts can adjudicate on statutory rights and duties. 7.4.1 Legislative supremacy: a paramount constitutional principle. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §43 (“Parliamentary sovereignty is a fundamental principle of the UK constitution”); R (Anderson) v SSHD [2002] UKHL 46 [2003] 1 AC 837 at §39 (Lord Steyn: “the supremacy of Parliament is the paramount principle of our constitution”); {9.1.11} (the HRA and legislative supremacy); R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 at §9 (referring to “the supremacy of the Crown in Parliament”); R (Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWCA Civ 1549 at §12 (Laws LJ: “It remains a first principle of our constitutional law that Parliament in enacting primary legislation is sovereign. Parliamentary sovereignty has been qualified though not departed from in different ways by the adoption of the law of the European Union through the European Communities Act 1972 and by the Human Rights Act 1998. … Where neither the EU nor the Human Rights Act touches the case in hand … Parliament’s power to make any law of its choosing is unconfined. We have not yet reached the point where outside the two European spheres Parliament lacks the legal authority to legislate contrary to liberal political norms or so as to curtail hallowed personal rights such as trial by jury”); Pitman v State of Trinidad and Tobago [2017] UKPC 6 [2018] AC 35 at §36 (“The common law gives way to statute, not statute to common law”); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §41 (describing as one of the “fundamental principles of our constitutional law”: “the principle of Parliamentary sovereignty: that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply”, explaining that “the effect which the courts have given to Parliamentary sovereignty is not confined to recognising the status of the legislation enacted by the Crown in Parliament as our highest form of law”, and “the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty”), §42 (describing: “The sovereignty of Parliament … as the foundational principle of our constitution”). 7.4.2 Legislative supremacy is a constitutional principle developed by the common law. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §40 (describing “constitutional principles developed by the common law”), §41 (including “the principle of Parliamentary sovereignty”); R v Lord Chancellor, ex p Witham [1998] QB 575, 581E (Laws J, explaining that it is the common law which affords legislative supremacy to Parliament). 7.4.3 Legislative supremacy and ultra vires. R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531 at §23 (Lord Neuberger: “In declaring subordinate legislation to be invalid” on grounds that it is “ultra vires”, “the court is upholding the supremacy of Parliament over the Executive. That is because the court is preventing the Executive from 111

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making an order which is outside the scope of the power which Parliament has given him or her by means of the statute concerned”); R (Reilly) v Secretary of State for Work and Pensions [2013] UKSC 68 [2014] AC 453 at §47 (Lord Neuberger and Lord Toulson: “The courts have no more important function than to ensure that the executive complies with the requirements of Parliament as expressed in a statute”). 7.4.4 Judicial review to protect ongoing legislative supremacy. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §41 (“Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it by the use of prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty. To give only a few examples … the court protected Parliamentary sovereignty directly, by holding that prerogative powers could not be used to alter the law of the land … the court prevented the Government of the day from seeking by indirect means to bypass Parliament, in circumventing a statute through the use of the prerogative … the court again prevented the Government from rendering a statute nugatory through recourse to the prerogative, and was not deflected by the fact that the Government had failed to bring the statute into effect”), §42 (“The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament. … An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty”), §44 (“It must therefore follow, as a concomitant of Parliamentary sovereignty, that the power to prorogue cannot be unlimited”). 7.4.5 Legislative supremacy: basic limits of the judicial role. Mitsui Sumitomo Insurance Co (Europe) Ltd v Mayor’s Office for Policing and Crime [2016] UKSC 18 [2016] AC 1488 at §22 (Lord Hodge: “it is not correct to use a judicial rationalisation of a statutory scheme to override the words which Parliament has used”); R (Quintavalle) v Secretary of State for Health [2003] UKHL 13 [2003] 2 AC 687 at §15 (Lord Bingham, describing “the constitutional imperative that the courts stick to their interpretative role and do not assume the mantle of legislators”). 7.4.6 Plain statutory words/plain meaning. Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §20 (Lord Reed: “No amount of purposive interpretation can … entitle the court to disregard the plain and unambiguous terms of the legislation”); R (D) v Secretary of State for Justice [2010] EWCA Civ 18 [2010] 1 WLR 1782 at §47 (“plain meaning” rule as the “governing principle”); R v J [2004] UKHL 42 [2005] 1 AC 562 at §15 (Lord Bingham: “It is the duty of the court to give full and fair effect to the meaning of a statute. In a purely domestic context such as this, it cannot construe the statute by reference to any extraneous legal instrument. It must seek to give effect to all the provisions of a statute. It cannot pick and choose, giving effect to some and discounting others. It has no warrant, in a case such as this where no Convention right is engaged, to resort to the unique interpretative technique required by section 3 of the Human Rights Act 1998. If a statutory provision is clear and unambiguous, the court may not decline to give effect to it on the ground that its rationale is anachronistic, or discredited, or unconvincing”), §37 (Lord Steyn: “Parliament does not intend the plain meaning of its legislation to be evaded. And it is the duty of the courts not to facilitate the circumvention of the parliamentary intent”), §38 (“The courts must loyally give effect to the statutes as enacted by Parliament. The judiciary may not render a statutory provision, such as a time limit, nugatory on the ground that it disagrees with the reason underlying it”); In re W (An Infant) [1971] AC 682, 698C-D (“It is not for the courts to embellish, alter, subtract from or add to words which, for once at least, Parliament has employed without any ambiguity at all”); R v Inland Revenue Commissioners, ex p Rossminster [1980] AC 952, 1008D-E (Lord Diplock: “judges in performing their constitutional function of expounding what words used by Parliament in legislation mean, must not be over-zealous to search for ambiguities or obscurities in words which on the face of them are plain, simply because the members of the court are out of sympathy with the policy to which the Act appears to give effect”); Inland 112

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Revenue Commissioners v Hinchy [1960] AC 748, 767 (unless “these words are capable of a more limited construction … then we must apply them as they stand, however unreasonable or unjust the consequences, and however strongly we may suspect that this was not the real intention of Parliament”); R v Chief Constable of the Royal Ulster Constabulary, ex p Begley [1997] 1 WLR 1475, 1480H (describing the Courts’ “power to develop the law. But it is a limited power. And it can be exercised only in the gaps left by Parliament. It is impermissible for the House to develop the law in a direction which is contrary to the expressed will of Parliament”); R v Governor of Pentonville Prison, ex p Azam [1974] AC 18, 59D (“Parliament can, if it uses sufficiently clear words, give legislation retroactive effect”); R v Inland Revenue Commissioners, ex p Woolwich Equitable Building Society [1990] 1 WLR 1400, 1412H (“well-established presumptions … are clearly rebuttable if sufficiently clear express words are used”); {6.3.15} (international law yields to clear domestic statute); {29.1.8) (rectifying construction: altered language effecting Parliament’s intention); {28.1.8} (ouster: nothing short of the clearest words); {29.3.19} (conventional gateways to external aids: ambiguity, obscurity or absurdity). 7.4.7 ‘Necessary implication’. Volaw Trust and Corporate Services Ltd v Office of the Comptroller of Taxes (Jersey) [2019] UKPC 29 at §73 (if privilege against self-incrimination applying, “impliedly abrogated” here by the statute); R (Brown) v Secretary of State for Justice [2017] UKSC 81 [2018] AC 215 at §36 (Crown not bound by statutory provisions except by express words or “necessary implication”, being “one which necessarily flows from the express words of the statute construed in their context” or by reference to their “purpose”); R (XH) v SSHD [2017] EWCA Civ 41 [2018] QB 355 at §89 (“The test for … a necessary implication is a strict one”); B (A Minor) v DPP [2000] 2 AC 428, 464 (“an implication which is compellingly clear”); R (Morgan Grenfell & Co Ltd) v Inland Revenue Commissioners [2002] UKHL 21 [2003] 1 AC 563 at §45 (“reasonable implication” insufficient); Beghal v DPP [2015] UKSC 49 [2016] AC 88 at §§61, 64 (common law privilege against selfincrimination statutorily excluded by necessary implication); R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54 [2011] 2 AC 15 at §16 (meaning of statutory provision identified “by necessary implication”), §33 (whether common law remedy “excluded by necessary implication”); R (Edison First Power Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 20 [2003] 4 All ER 209 at §5 (asking whether “inevitable inference” that Parliament intended to displace the presumption against double taxation), §17 (whether “clear Parliamentary intent”); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §§137-141 (whether statute requiring regard to a relevant consideration by necessary implication); R v Lord Chancellor, ex p Lightfoot [2000] QB 597 (“necessary implication” sufficient to override protection of common law fundamental right); cf A v SSHD [2005] UKHL 71 [2006] 2 AC 221 (common law abhorrence of torture and torture-induced evidence incapable of being overridden by necessary implication), §96 (provision for use of torture “would have to be expressly provided in primary legislation”), §114 (“This is not a matter that can be left to implication. Nothing short of an express provision will do, to which Parliament has unequivocally committed itself”); {56.2.7} (obligatory (statutory) relevancy: by necessary implication); {35.4.5} (POL: statutory abrogation by ‘necessary implication’). 7.4.8 ‘Easy to say so’. R (Coughlan) v Minister for the Cabinet Office [2020] EWCA Civ 723 [2020] 1 WLR 3300 at §36 (McCombe LJ: “If such a restriction had been intended, it would have been quite simple for Parliament to introduce it. It did not do so”); R (Forge Care Home Ltd) v Cardiff and Vale University Health Board [2017] UKSC 56 [2017] PTSR 1140 at §37 (Lady Hale: “Parliament … could and would have said so”); R (George) v SSHD [2014] UKSC 28 [2014] 1 WLR 1831 at §29 (“it is much more likely that it would have been specifically provided for if it had been intended”); R (Alvi) v SSHD [2012] UKSC 33 at §98 (Lord Dyson: “if my interpretation … is unacceptable to the Secretary of State, she can amend the 1971 Act and introduce a clear expanded definition”); R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] UKSC 11 [2010] 2 AC 70 at §97 (“Parliament has not amended the law despite the known problems”); Ward v Metropolitan Police Commissioner [2005] UKHL 32 [2006] 1 AC 23 at §22 (“if … Parliament had wished to include the power …, it would have 113

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been simple to say so”); R v Oldham Metropolitan Borough Council, ex p Garlick [1993] AC 509, 518B (“If this had been the intention of Parliament it would surely have said so”); R v Tower Hamlets LBC, ex p Chetnik Developments Ltd [1988] AC 858, 880B-E (Parliament could have made the need to budget a relevancy through “express provision”); Pearlberg v Varty [1972] 1 WLR 534, 548F (“it would have been easy and natural to insert an express provision”). 7.4.9 Whether to ‘read in words’. R (Noone) v Governor of Drake Hall Prison [2010] UKSC 30 [2010] 1 WLR 1743 at §§31-32 (SC reading in words as a purposive interpretation to avoid absurd consequences); R (BA (Nigeria)) v SSHD [2009] UKSC 7 [2010] 1 AC 444 at §29 (no need to read in words here); Thompson v Goold & Co [1910] AC 409, 420 (Lord Mersey: “It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”), cited in Grunwick Processing Laboratories Ltd v Advisory Conciliation & Arbitration Service [1978] AC 655, 699G, 692E; R v Director of the Serious Fraud Office, ex p Smith [1993] AC 1, 44A (“neither history nor logic demands that any qualification of what Parliament has so clearly enacted ought to be implied”); Daymond v Plymouth City Council [1976] AC 609, 645E (“If there is … a defect, it is not for us sitting judicially to remedy it by legislating to put into section 30 words which Parliament could, if it had wished, have inserted”); R v SSHD, ex p Oladehinde [1991] 1 AC 254, 303E (court “very slow to read into the statute a further implicit limitation”); {29.1.8) (rectifying construction: altered language effecting Parliament’s intention). 7.4.10 ‘Change is for Parliament’. Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 (SC quashing Orders under the principle of legality, primary legislation being needed for such curtailments of fundamental rights) at §157 (Lord Phillips: “Nobody should conclude that the result of these appeals constitutes judicial interference with the will of Parliament. On the contrary it upholds the supremacy of Parliament in deciding whether or not measures should be imposed that affect the fundamental rights of those in this country”); R v Secretary of State for Home Department, ex p Virk [1996] COD 134 (granting judicial review on the basis that the effect of the statute was plain, albeit unlikely, and if the result was “cloud cuckoo land” it was for Parliament to remedy the defect); R v Trent River Authority, ex p National Coal Board [1971] AC 145, 154E (“Rectification of the defect in the Act, if it be a defect, is a matter for the legislature and not for this House in the exercise of its judicial functions”); Barnard v Gorman [1941] AC 378, 384 (“Our duty in the matter is plain. We must not give the statutory words a wider meaning merely because, on a narrower construction the words might leave a loophole for frauds against the Revenue. If, on the proper construction, of the section, that is the result, it is not for judges to attempt to cure it. That is the business of Parliament”); R v Hull University Visitor, ex p Page [1993] AC 682, 694E (Lord Griffiths: “If it is thought that the exclusive jurisdiction of the visitor has outlived its usefulness, which I beg to doubt, then I think that it should be swept away by Parliament and not undermined by judicial review”); Wandsworth LBC v Winder [1985] AC 461, 510C (“If the public interest requires that persons should not be entitled to defend actions brought against them by public authorities, where the defence rests on a challenge to a decision by the public authority, then it is for Parliament to change the law”); Murphy v Brentwood District Council [1991] 1 AC 398, 482C (“It is pre-eminently for the legislature to decide whether [the] policy reasons should be accepted as sufficient for imposing on the public the burden of providing compensation”); In re F (Adult: Court’s Jurisdiction) [2001] Fam 38 (court entitled to use inherent jurisdiction to fill statutory lacuna), 56E (Sedley LJ: “the courts … have from time to time had to speak where Parliament, although the more appropriate forum, was silent. Both can find themselves left behind by time and tide, and that is what has happened here”); R v SSHD, ex p Pegg [1995] COD 84, 85 (although up to Parliament to remedy unsatisfactory state of affairs, reviewing court to be extra vigilant on judicial review). 7.4.11 Legislative supremacy is not absolute: judicial review of primary legislation. {12.3} (judicial review of primary legislation at common law). 7.4.12 Judicial review’s constitutional inalienability. {1.3} 114

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7.5 Access to justice. The right of recourse to the Courts is a core constitutional right recognised by the common law, itself linked to the rule of law and the separation of powers. In vindicating it, the Courts are simultaneously protecting the rights and interests of persons needing effective judicial protection under the law and discharging their own judicial responsibilities in providing it. 7.5.1 Access to justice as a constitutional right. R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §65 (Lord Reed, describing “the constitutional principles which underlie the text” of primary legislation, as including “the constitutional right of access to justice: that is to say, access to the courts (and tribunals …)”), §66 (“The constitutional right of access to the courts”), §76 (“the constitutional right of unimpeded access to the courts”); R (Medical Justice) v SSHD [2011] EWCA Civ 1710 at §5 (immigration removal policy “unlawful because it abrogated the constitutional right of access to justice”); R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §26 (“the right of access to justice … is a fundamental and constitutional principle of our legal system”); R v SSHD, ex p Leech [1994] QB 198, 210A (“It is a principle of our law that every citizen has a right of unimpeded access to a court … Even in our unwritten constitution it must rank as a constitutional right”); R v Lord Chancellor, ex p Witham [1998] QB 575 (access to law a constitutional right); R v SSHD, ex p Pierson [1998] AC 539, 589B-E (Lord Steyn), 575B-C (Lord Browne-Wilkinson); Colley v Council for Licensed Conveyancers [2001] EWCA Civ 1137 [2002] 1 WLR 160 at §26 (Sir Andrew Morritt V-C: “the right of access to a court is of fundamental constitutional importance”); Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39 [2003] 1 WLR 1763 at §18 (constitutional right of access to justice); {7.6} (constitutional/ common law rights). 7.5.2 Access to justice is inherent in the rule of law. R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §66 (Lord Reed: “The constitutional right of access to the courts is inherent in the rule of law”); R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168 at §122 (“The rule of law requires effective access to justice”); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §146 (“Access to a court to protect one’s rights is the foundation of the rule of law”); Dill v Secretary of State for Communities and Local Government [2020] UKSC 20 [2020] 1 WLR 2206 at §20 (issue of statutory construction approached as “subject to the rule of law that individuals affected by legal measures should have a fair opportunity to challenge these measures and to vindicate their right in court proceedings”, referring to Boddington v British Transport Police [1999] 2 AC 143 and Art 6); R (AM) v DPP [2012] EWHC 470 (Admin) at §10 (Charles J: “A person has a right of access to the courts to establish their legal rights. That is part of the rule of law”). 7.5.3 Access to justice: access to the Courts. R (Haworth) v HMRC [2019] EWCA Civ 747 [2019] 1 WLR 4708 at §36(v) (relying on constitutional right of access to the courts, inherent in the rule of law); R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §76 (“the constitutional right of unimpeded access to the courts … which can only be curtailed by clear statutory enactment”); Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 [2017] ICR 1327 at §14 (Lord Sumption: “The ‘right to a court’ corresponds to a right which the common law has recognised for more than two centuries”, citing Blackstone in 1876); R (Sathanantham) v SSHD [2016] EWHC 1781 (Admin) [2016] 4 WLR 128 at §72 (“a right of access to a tribunal is just as important and fundamental as a right of access to the ordinary courts”); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §146 (“Access to a court to protect one’s rights is the foundation of the rule of law”), §184 (“basic common law rights of … access to the courts”); R (Chester) v Governor of Wakefield Prison [2000] EWHC 63 (Admin) at §35 (Foskett J: “Long before the [HRA] it was clear that a prisoner was entitled to unimpeded access to the courts, a right that could only be removed by express enactment: see Chester v Bateson [1920] 1 KB 829 and R & W Paul Ltd v The Wheat Commission [1937] AC 139, both being referred to by Lord Bridge in Raymond v Honey [1983] 1 AC 1 at 14”); R v Legal Aid Board, ex p Duncan [2000] COD 159 (transcript) at §456) (“there is a common law right of access to the courts which is of fundamental importance in our legal system”); 115

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R (Kehoe) v Secretary of State for Work and Pensions [2004] EWCA Civ 225 [2004] QB 1378 at §§79, 84 (recourse to the court to enforce maintenance payments as “a constitutional safeguard”) (HL is [2005] UKHL 48 [2006] 1 AC 42); A v SSHD [2004] EWCA Civ 1123 [2005] 1 WLR 414 at §143 (access to law applicable to the special immigration appeals tribunal) (HL is [2005] UKHL 71 [2006] 2 AC 221); R v SSHD, ex p Saleem [2001] 1 WLR 443 (access to court extending, by analogy, to right of access to specialist tribunals: here, immigration tribunals); R (G) v Immigration Appeal Tribunal [2004] EWHC 588 (Admin) [2004] 1 WLR 2953 at §8 (Collins J: “Access by a citizen or a person who is entitled while in this country to the protection of its laws to the Court is a right of the highest constitutional importance. Legislation which removes that right is inimical to the rule of law”) (CA is [2004] EWCA Civ 1731 [2005] 1 WLR 1445). 7.5.4 Access to justice: access to a lawyer.23 R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 [2017] 4 WLR 92 at §42 (“Bearing in mind what fairness is likely to require where the issue is factually or legally complex or the consequences for the individual are serious, the common law rules of fairness will generally entitle a person to have access to legal advice and to be able to communicate confidentially with a legal adviser as part of the fundamental right of access to justice and to the courts”), §47 (common law capable of supporting a requirement for legal aid); R (AM) v DPP [2012] EWHC 470 (Admin) at §12 (Charles J, referring to the “long … recognised” principle “that the citizen has a right of access to a lawyer as part of the right of access to the courts”), §13 (“unimpeded right of access to a lawyer is part of our conception of the rule of law”), §14 (a “constitutional right”); R (T) v SSHD [2010] EWHC 435 (Admin) at §5 (same-day removals of minors, without any opportunity to contact a lawyer or anyone else, unlawful); R v SSHD, ex p Anderson [1984] QB 778 (judicial review of standing orders restricting access to legal advice ultra vires, where infringing fundamental human right of access to the courts); R v SSHD, ex p Leech [1994] QB 198, 210A-H, 216D-E, H (judicial review of prison rule enabling governor to read letters from solicitor, ultra vires as hindering right of access to the courts); R v Chief Constable of the Royal Ulster Constabulary, ex p Begley [1997] 1 WLR 1475 (considering extent of common law right of access to a solicitor); R v Shayler [2002] UKHL 11 [2003] 1 AC 247 at §73 (Lord Hope: “Access to legal advice is one of the fundamental rights enjoyed by every citizen under the common law”); Ramsarran v Attorney-General of Trinidad and Tobago [2005] UKPC 8 [2005] 2 AC 614 (PC recognising constitutional right of informed access to lawyer, whenever individual detained). 7.5.5 Access to justice: access to the law. R (L) v SSHD [2003] EWCA Civ 25 [2003] 1 WLR 1230 at §17 (“legal certainty is an aspect of the rule of law”), §25 (“It is an aspect of the rule of law that individuals and those advising them, since they will be presumed to know the law, should have access to it in authentic form”). 7.5.6 Access to justice: equal protection under the law. R v SSHD, ex p Khawaja [1984] AC 74, 111H (Lord Scarman: “Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection”). 7.5.7 Access to law: not excluded at least unless ‘clear words’. Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, 286 (“the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words”), applied in Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §§75, 240, in Boddington v British Transport Police [1999] 2 AC 143, 161E and in Seal v Chief Constable South Wales Police [2007] UKHL 31 [2007] 1 WLR 1910 at §18; Raymond v Honey [1983] 1 AC 1, 14G (“a citizen’s right to unimpeded access to the courts can only be taken away by

23The

equivalent paragraph in a previous edition was relied on in R (Gul) v SSJ [2014] EWHC 373 (Admin) [2014] ACD 106 at §78 (Beatson LJ).

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express enactment”); Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 577H (“a citizen should have unimpeded access to the courts unless such right has been expressly removed by statute”); R v SSHD, ex p Ruddock [1987] 1 WLR 1482, 1492F (need “the most clear and unequivocal words”); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 366C (Lord Diplock: “the courts lean heavily against a construction of the Act which would have this effect”); R v Lord Chancellor, ex p Lightfoot [2000] QB 597 (right capable of being overridden by irresistible inference as opposed to express provision); R v Chief Constable of the Royal Ulster Constabulary, ex p Begley [1997] 1 WLR 1475, 1480H, 1481D-G (beyond the power of the HL to extend the common law right of access to a solicitor to cover a situation contrary to the expressed will and deliberate legislative policy of Parliament); {7.4.7} (necessary implication). 7.5.8 Unlawfulness because of impact on access to justice. {35.2.10} (principle of legality: measure violating access to justice). 7.5.9 Liberty and access to law. {7.6.6} (right to personal liberty/habeas corpus at common law).

7.6 Constitutional/common law rights. Parliament imposes on Courts statutory duties to give statutorily prescribed protection to certain statutory rights, most obviously through the Human Rights Act 1998 (HRA). But there is a well-established, prior and freestanding protection of basic rights at common law. The Courts discern, from the common law, autonomous and self-sufficient judicial duties effectively to protect common law rights and values, some of which have the elevated status of being recognisably constitutional rights and values. 7.6.1 ‘Constitutional rights’. {7.1.4} 7.6.2 Right to life at common law. R (Elgizouli) v SSHD [2020] UKSC 10 [2020] 2 WLR 857 at §175 (Lord Reed, discussing “the idea of a right to life”: “the authorities support the recognition of what might more aptly be described as a value to which the courts attach great significance when exercising their supervisory jurisdiction”); R (Amin) v SSHD [2003] UKHL 51 [2004] 1 AC 653 at §30 (Lord Bingham: “A profound respect for the sanctity of human life underpins the common law”). 7.6.3 Right of humanity/dignity/freedom from destitution at common law. R (W) v SSHD [2020] EWHC 1299 (Admin) at §§60-61 (SSHD’s duties to act where an individual is suffering or will imminently suffer inhuman and degrading treatment, applicable under Art 3 but “would also follow at common law even in the absence of Article 3”), §34 (“the law of humanity”), applying R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, 292F-G (human rights at issue so basic that unnecessary to resort to the pre-HRA ECHR; applying “the law of humanity”); R (Othman) v Secretary of State for Work and Pensions [2001] EWHC Admin 1022 (2002) 5 CCLR 148 at §52 (referring to the common law’s “humanitarian safety net”), §56 (“the law of humanity applies as much to a European directive as it does to any other law which is applicable in this country”); R v Lincolnshire County Council and Wealden District Council, ex p Atkinson, Wales and Stratford (1996) 8 Admin LR 529, 535H (shelter); R v Governor of Frankland Prison, ex p Russell [2000] 1 WLR 2027 (prisoner’s right to food); R v SSHD, ex p Herbage (No 2) [1987] QB 1077, 1095F-G (if there were “cruel and unusual punishment”, then “it would be an affront to common sense that the court should not be able to afford [a remedy]”); Yildiz v Secretary of State for Social Security [2001] EWCA Civ 309 at §18 (need “very clear words” to implement a policy imposing “a life so destitute that no civilised nation can tolerate it”); R v Wandsworth LBC, ex p O [2000] 1 WLR 2539 (freedom from destitution); cf R (Limbuela) v SSHD [2005] UKHL 66 [2006] 1 AC 396 (approaching destitution in the context of primary legislation by applying the HRA). 7.6.4 Protection against torture at common law. A v SSHD [2005] UKHL 71 [2006] 2 AC 221 at §§11-12 (Lord Bingham, describing the common law prohibition on torture 117

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“as a constitutional principle”), §64 (Lord Nicholls: “for centuries the common law has set its face against torture”), §83 (Lord Hoffmann: “the rejection of torture by the common law has a special iconic importance as the touchstone of a humane and civilised legal system … a constitutional resonance for the English people which cannot be overestimated”), §129 (Lord Rodger), §152 (Lord Carswell); Jones v Ministry of Interior of Saudi Arabia [2006] UKHL 26 [2007] 1 AC 270 (discussing the prohibition on torture in international law); R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2008] EWHC 2048 (Admin) [2009] 1 WLR 2579 at §142 (status of prohibition on torture at common law and under international law), §178 (whether prohibition on torture could give rise to a positive obligation to act on the international plane). 7.6.5 Protection against torture-obtained evidence at common law. A v SSHD [2005] UKHL 71 [2006] 2 AC 221 (exclusion of evidence obtained by torture) at §52 (Lord Bingham: “The principles of the common law, standing alone, … compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice”); cf R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §29 (no “duty to inquire into the possible reliance on [torture-tainted] evidence by other states”). 7.6.6 Right to personal liberty/habeas corpus at common law. R (Jollah) v SSHD [2020] UKSC 4 [2020] 2 WLR 418 (common law liberty breached by curfew conditions) at §1 (Lady Hale: “The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the [ECHR]”); J v Welsh Ministers [2018] UKSC 66 [2019] 2 WLR 82 at §24 (liberty at common law extending to community treatment order conditions having concrete effect of depriving of liberty); R (B (Algeria)) v Special Immigration Appeals Commission [2018] UKSC 5 [2018] AC 418 at §29 (Lord Lloyd-Jones: “It is a fundamental principle of the common law that in enacting legislation Parliament is presumed not to intend to interfere with the liberty of the subject without making such an intention clear”, a principle applicable to “a power to grant bail … because the conditions which may be attached to a grant of bail are capable of severely curtailing the liberty of the person concerned”); R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46 [2017] AC 52 at §23(1) (Lord Wilson, referring to liberty and Magna Carta); A v SSHD [2004] UKHL 56 [2005] 2 AC 68 at §36 (Lord Bingham, describing the “fundamental importance of the right to personal freedom”, reflected in “the long libertarian tradition of English law … upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day”), §86 (Lord Hoffmann); R (Lumba) v SSHD [2011] UKSC 12 [2012] 1 AC 245 at §341 (Lord Brown, quoting Lord Bingham’s Romanes lecture: “Freedom from executive detention is arguably the most fundamental right of all”); B v Secretary of State for Justice [2011] EWCA Civ 1608 [2012] 1 WLR 2043 at §53 (Arden LJ: “The right to liberty of the person is a fundamental right. It has been so regarded since at least the time of the well-known provisions of clause 39 of Magna Carta, which in due course found its reflection in article 9 of the Universal Declaration of Human Rights and article 5 of the [ECHR]. A person cannot have his right to liberty taken away unless that is the clear effect of a statute”); R (McAuley) v Coventry Crown Court [2012] EWHC 680 (Admin) [2012] 1 WLR 2766 at §25 (Sir John Thomas P: “The time limit placed on trying those in custody is a vital feature of our system of justice”, serving to “provide sure means of compliance with a principle of the common law as old as Magna Carta that justice delayed is justice denied”); Naidike v Attorney-General of Trinidad and Tobago [2004] UKPC 49 [2005] 1 AC 538 at §48 (need for clear words to interfere with liberty); R (Saadi) v SSHD [2001] EWCA Civ 1512 [2002] 1 WLR 356 (CA) at §69 (Lord Phillips MR, referring to the “recognition, that is part of our heritage, of the fundamental importance of liberty”); D v Home Office [2005] EWCA Civ 38 [2006] 1 WLR 1003 at §69 (importance attached by English law to the right to liberty); R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 [2003] UKHRR 76 at §60 (“The underlying principle, fundamental in English law, is that every imprisonment is prima facie unlawful”); Eshugbayi Eleko v Government of Nigeria [1931] AC 662, 670 (Lord Atkin: “no member of the executive can interfere with the liberty 118

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or property of a British subject except on the condition that he can support the legality of his action before a court of justice”); In re Wilson [1985] AC 750, 757H (Lord Roskill: “in principle, the subject must not be deprived of his liberty save after the performance of a judicial act effected with judicial propriety”); R v Maidstone Crown Court, ex p Clark [1995] 1 WLR 831 (important in cases involving liberty that courts can grant redress); R v SSHD, ex p Khawaja [1984] AC 74, 111F (“If Parliament intends to exclude effective judicial review of the exercise of a power in restraint of liberty, it must make its meaning crystal clear”), 122E-F (Lord Bridge: duty to “regard with extreme jealousy any claim by the executive to imprison a citizen without trial and allow it only if it is clearly justified by the statutory language relied on”; “a robust exercise of the judicial function in safeguarding the citizen’s rights”); Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, 111E (“the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention”); R v London (North) Industrial Tribunal, ex p Associated Newspapers Ltd [1998] ICR 1212, 1224 (“a provision which enables interference to take place with basic constitutional rights should be narrowly construed”); R (Kelly) v Secretary of State for Justice [2008] EWCA Civ 177 [2009] QB 204 (rectifying construction albeit penal statute affecting liberty, because no settled right to liberty being interfered with); R (M) v Hackney LBC [2011] EWCA Civ 4 [2011] 1 WLR 2873 at §100 (Toulson LJ: “Our system of law is rightly scrupulous to ensure that in matters affecting individual liberty the law is strictly applied. It is a hallmark of a constitutional democracy”); {35.2.12} (principle of legality: liberty). 7.6.7 Liberty and access to justice: right to habeas corpus at common law. Rahmatullah v Secretary of State for Defence [2011] EWCA Civ 1540 [2012] 1 WLR 1462 at §43 (Lord Neuberger MR, explaining why “habeas corpus has … been described as ‘perhaps the most important right known to the constitutional law of England’”) (SC is [2012] UKSC 48 [2013] 1 AC 614); H v Lord Advocate [2012] UKSC 24 [2013] 1 AC 413 at §32 (Lord Hope, citing authority as to requiring “the strongest words … to remove the ancient remedy of habeas corpus”); R (Hilali) v Governor of Whitemoor Prison [2008] UKHL 3 [2008] 1 AC 805 at §21 (“the remedy of habeas corpus must be taken to have been excluded by the clear and unequivocal wording”). 7.6.8 Liberty and freedom from search/impedence at common law. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §40 (describing as one of the “constitutional principles developed by the common law” the principle that “the Government cannot search private premises without lawful authority”), §32 (referring to 18th-century authority for the proposition that “the Secretary of State could not order searches of private property without authority conferred by an Act of Parliament or the common law”); R (Roberts) v Metropolitan Police Commissioner [2015] UKSC 79 [2016] 1 WLR 210 at §29 (Lady Hale: “the legal protection of the citizen pre-dates the Human Rights Act. In relation to searches, the starting point is the common law, under which it is contrary to constitutional principle and illegal to search someone to establish whether there are grounds for an arrest. … Powers of stop and search therefore require Parliamentary authority”); SSHD v GG [2009] EWCA Civ 786 [2010] QB 585 at §12 (Sedley LJ: “the common law rights of personal security and personal liberty prevent any official search of an individual’s clothing or person without explicit statutory authority”); R (W) v Metropolitan Police Commissioner [2005] EWHC 1586 (Admin) [2005] 1 WLR 3706 at §21 (describing the “right to walk the streets without interference from police … unless they possess common law or statutory powers to stop us”); Attorney-General of Jamaica v Williams [1998] AC 351, 354H (“The fundamental human right to protection against unlawful searches … is part of the English common law”); R (Bright) v Central Criminal Court [2001] 1 WLR 662, 679G-681A (freedom from search as a constitutional right). 7.6.9 Accused’s right of confrontation at common law. R v Davis [2008] UKHL 36 [2008] 1 AC 1128 at §5 (criminal accused’s right to confront their accusers). 7.6.10 Privilege against self-incrimination (PSI) at common law. Volaw Trust and Corporate Services Ltd v Office of the Comptroller of Taxes (Jersey) [2019] UKPC 29 (considering PSI 119

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in the context of tax information notices); R (River East Supplies Ltd) v Nottingham Crown Court [2017] EWHC 1942 (Admin) [2017] 4 WLR 135; Beghal v DPP [2015] UKSC 49 [2016] AC 88 at §60 (“privilege against self-incrimination” described as “firmly established judge-made law”), §61 (PSI engaging the principle of legality). 7.6.11 Legal professional privilege (LPP)/litigation privilege at common law. R (Morgan Grenfell & Co Ltd) v Inland Revenue Commissioners [2002] UKHL 21 [2003] 1 AC 563 at §§7, 43 (LPP as a fundamental human right at common law), applied in Quinn Direct Insurance Ltd v Law Society [2010] EWCA Civ 805 [2011] 1 WLR 308 at §§23, 29 (Law Society not obliged or entitled to produce LPP documents to insurer); R (Kelly) v Warley Magistrates’ Court [2007] EWHC 1836 (Admin) [2008] 1 WLR 2001 at §25 (LPP and litigation privilege as fundamental rights); B v Auckland District Law Society [2003] UKPC 38 [2003] 2 AC 736 at §37 (LPP); R v Rochford [2010] EWCA Crim 1928 [2011] 1 WLR 534 at §21 (statute not taking away “fundamental right” of LPP); R (Kelly) v Warley Magistrates Court [2007] EWHC 1836 (Admin) (general provisions incapable of empowering interference with litigation privilege); R (Prudential Plc) v Special Commissioner of Income Tax [2010] EWCA Civ 1094 [2011] QB 669 (considering the scope of legal advice privilege, an aspect of LPP); {35.2.12} (principle of legality: legal professional privilege). 7.6.12 Right to a fair trial/jury trial at common law. R (McKenzie) v Leeds Crown Court [2020] EWHC 1867 (Admin) [2020] 4 WLR 106 at §§16, 22, 25, 28 (Lord Chief Justice’s directions suspending jury trials in Covid-19 pandemic not ultra vires as curtailing a fundamental right to a jury trial); Dennis Hutchings [2019] UKSC 26 (right to trial by jury restricted by lawful exercise of power under primary legislation), §55 (“The fundamental right is to a fair trial”); R (Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWCA Civ 1549 at §20 (“Jury trial is … a hallowed and historic institution”); R v Islington North Juvenile Court, ex p Daley [1983] 1 AC 347, 364B (jury trial as “a right that is deeply rooted in tradition”); {7.7} (basic fairness/natural justice). 7.6.13 Rights of personal autonomy/security at common law. Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 at §6 (Lady Hale, referring to “the right of all human beings, male and female, to decide what shall be done with their own bodies … [which] has long been recognised by the common law”); AKJ v Metropolitan Police Commissioner [2013] EWCA Civ 1342 [2014] 1 WLR 285 at §22 (“establishing and/or maintaining of an intimate sexual relationship for the covert purpose of obtaining intelligence is a seriously intrusive form of investigatory technique … [which] amounts to an invasion of an individual’s common law right to personal security”). 7.6.14 Rights of privacy and confidentiality at common law. R (Ingenious Media Holdings plc) v HMRC [2016] UKSC 54 [2016] 1 WLR 4164 at §17 (Revenue subject to common law duty of confidentiality); Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595 [2006] QB 125 (privacy through the tort of breach of confidence); Wainwright v Home Office [2003] UKHL 53 [2004] 2 AC 406 at §31 (privacy as an underlying value rather than a rule of law); HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776 [2008] Ch 57. 7.6.15 Respect for family life at common law. R v SSHD, ex p Irfan Ahmed [1995] Imm AR 210, 219 (“if the policy of the Home Office were one which ignored the obvious humanitarian principle of respect for family life, that would be a factor in favour of holding the policy to be unreasonable”). 7.6.16 Freedom of religion at common law. R v SSHD, ex p Moon (1996) 8 Admin LR 477, 480F-G (“The common law, like the European Convention on Human Rights, recognises the freedom of individuals to adopt, practise and … change their religion”). 7.6.17 Freedom of expression/freedom of speech at common law. R (Butt) v SSHD [2019] EWCA Civ 256 [2019] 1 WLR 3873 at §179 (referring to “the right to freedom of expression at common law”); R v Shayler [2002] UKHL 11 [2003] 1 AC 247 at §21 (Lord Bingham: “The fundamental right of free expression has been recognised at common law for very many years”); McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, 297F 120

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(Lord Steyn: “Even before the coming into operation of the Human Rights Act 1998 the principle of freedom of expression attained the status of a constitutional right with attendant high normative force”); Rushbridger v HM Attorney-General [2003] UKHL 38 [2004] 1 AC 357 at §7 (“freedom of political speech is a core value of our legal system. Without it the rule of law cannot be maintained”); R v SSHD, ex p Brind [1991] 1 AC 696, 757B-C (Lord Ackner: “In a field which concerns a fundamental human right – namely that of free speech – close scrutiny must be given to the reasons provided as justification for interference with that right”); R v SSHD, ex p Simms [2000] 2 AC 115, 125G (Lord Steyn, speaking of “the right of freedom of expression”: “In a democracy it is the primary right: without it an effective rule of law is not possible”), 126B (ECHR Art 10 reflected in the common law); Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 207G-H (Lord Steyn, dissenting in the result, referring to freedom of expression as a constitutional right); Wainwright v Home Office [2003] UKHL 53 [2004] 2 AC 406 at §31 (Lord Hoffmann, referring to freedom of speech as an “underlying value”, rather than “a rule of law”, being “a value which underlies the existence of a rule of law”); R (Bright) v Central Criminal Court [2001] 1 WLR 662, 681B (freedom of speech as a “fundamental freedom”); Worme v Commissioner of Police of Grenada [2004] UKPC 8 [2004] 2 AC 430 at §19 (PC describing “the importance that is attached to the right of freedom of expression, particularly in relation to public and political matters”); R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172 (Admin) [2013] PTSR 378 at §40 (Beatson J: “It is … important to remember the status of freedom of expression at common law and the relevance of the common law despite the enactment of the Human Rights Act 1998”), referring to R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 [2013] QB 618 at §68 (Toulson LJ); {35.2.16} (principle of legality: freedom of expression). 7.6.18 Freedom of assembly/association at common law. McEldowney v Forde [1971] AC 632, 657F (Lord Pearson: “In construing this regulation one has to bear in mind that it authorises very drastic interference with freedom of association. … Therefore it should be narrowly interpreted”). 7.6.19 Property rights etc at common law. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §40 (describing as one of the “constitutional principles developed by the common law”: “the principle that the executive cannot exercise prerogative powers so as to deprive people of their property without the payment of compensation”); R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 [2016] AC 1457 at §31 (“interference by the state with individual property rights cannot be justified by the exercise of prerogative powers, unsupported by specific statutory authority”); R (British American Tobacco UK Ltd) v Secretary of State for Health [2016] EWCA Civ 1182 [2018] QB 149 at §128 (no “taking or destruction of property” without compensation); R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20 [2011] 1 AC 437 at §9 (“The courts have been astute to impose a strict construction on statutes expropriating private property”), §10 (constitutional law principle that no deprivation of land unless expressly authorised by Parliament and decisively demanded in the public interest); R (Eastenders Cash & Carry Plc) v HMRC [2012] EWCA Civ 15 [2012] 1 WLR 2067 at §88 (Elias LJ: “since we are dealing with a power to interfere with property rights, that power should not be construed more widely than is reasonably necessary”; “before any … implication is made to widen the power of the state to interfere with private property rights, it must be clear that Parliament intended to confer it”), §97 (Davis LJ) (SC is [2014] UKSC 34 [2015] AC 1101); R (London & South Eastern Railway Ltd) v British Transport Police Authority [2009] EWHC 460 at §29 (need for “clear words to show that Parliament had intended to and had overridden existing contractual rights”); Chesterfield Properties Plc v Secretary of State for the Environment [1998] JPL 568, 579-580 (ownership of land recognised as a constitutional right); Attorney-General v Blake [2001] 1 AC 268, 289G (referring to “the established general principle, of high constitutional importance, that there is no common law power to take or confiscate property without compensation”); R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349, 383B-H (presumption that Parliament does not intend to take away property rights without clear language); 121

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Attorney-General of Jamaica v Williams [1998] AC 351, 354H (“The fundamental human right to protection against unlawful searches and seizures is part of the English common law”); R (Bright) v Central Criminal Court [2001] 1 WLR 662, 679G-681A (autonomy of premises and freedom from search as constitutional rights); Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339, 363 (“the principle of construction … that the courts must be slow to impute to Parliament an intention to override property rights in the absence of plain words to that effect”); R v Independent Television Commission, ex p Flextech Plc [1999] COD 108 (interference with existing contractual rights requiring clear and unambiguous express power or duty); R v Herrod, ex p Leeds City Council [1978] AC 403, 424B-E (avoiding a construction which “would have the effect of causing grave hardship by depriving very many people of their livelihood”); R v Coventry City Council, ex p Phoenix Aviation [1995] 3 All ER 37, 62e-63b (decision yielding to disruption of a lawful trade reviewed “with particular rigour”). 7.6.20 Citizenship rights at common law. R (Project for the Registration of Children as British Citizens) v SSHD [2019] EWHC 3536 (Admin) [2020] 1 WLR 1486 at §61 (citizenship rights “not ‘fundamental’ or ‘constitutional’”, but “undeniably important rights to which the principle of legality applies”); Minister of Home Affairs v Barbosa [2019] UKPC 41 [2020] 1 WLR 169 (considering common law rights relating to citizenship); R (Williams) v SSHD [2017] EWCA Civ 98 [2017] 1 WLR 3283 at §45 (Davis LJ: “There is no ‘fundamental’ or ‘constitutional’ right to citizenship registration”); Pomiechowski v District Court of Legnica [2012] UKSC 20 [2012] 1 WLR 1604 at §31 (Lord Mance: “British citizens enjoy a common law right to come and remain within the jurisdiction”), §32 (“a common … law right to enter and remain in the United Kingdom as and when he pleased”); R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 at §39 (“a British subject enjoys a constitutional right to reside in or return to that part of the Queen’s dominions of which he is a citizen”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §89 (arguably a “fundamental principle of English law” that no citizen should be exiled from a British colony). 7.6.21 Right to vote at common law. R (Coughlan) v Minister for the Cabinet Office [2020] EWCA Civ 723 [2020] 1 WLR 3300 at §65 (discussing “the fundamental constitutional right to cast a vote in local elections”), §68 (“the right to vote at any election is an important right”, power of whose curtailment must be “clearly and distinctly conferred by Parliament”); Moohan v Lord Advocate [2014] UKSC 67 [2015] AC 901 at §33 (Lord Hodge, describing “the right to vote as a basic or constitutional right”), §34 (but no “common law … right of universal and equal suffrage from which any derogation must be provided for by law and must be proportionate”); Shindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469 [2017] QB 226 at §49 (no common law right taking precedence over primary legislation, leaving aside an abusive entrenchment). 7.6.22 Other key common law rights and interests. R v Flintshire County Council, ex p Armstrong-Braun [2001] EWCA Civ 345 [2001] LGR 344 (protection for “the functioning of individual elected representatives”) at §60 (as part of collective rights of citizens); Sepet v SSHD [2003] UKHL 15 [2003] 1 WLR 856 at §§20, 53 (whether core human right of conscientious objection); Raymond v Honey [1983] 1 AC 1, 10G-H (“under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”).

7.7 Basic fairness/natural justice. Natural justice is the traditional name for legal standards of basic fairness protected by the law. This common law doctrine, rooted in centuries of legal tradition, readily adds procedural protections to statutory procedural frameworks. Though conventionally associated with standards which are (a) procedural in nature and (b) applicable to public authorities, basic fairness at common law is in each respect broader than that. 7.7.1 Natural justice: rooted in history. R v University of Cambridge (1723) 1 Stra 557, 567 (Fortescue J: “The laws of God and man both give the party an opportunity to make his 122

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defence, if he has any”); Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, 190 (Willes J: “a tribunal which is by law invested with power to affect the property of one of Her Majesty’s subjects, is bound to give such subject an opportunity of being heard before it proceeds … that rule is of universal application, and founded upon the plainest principles of justice”); Board of Education v Rice [1911] AC 179, 182 (Lord Loreburn LC: “they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything”); {2.1.7} (judicial review: the historical context). 7.7.2 Natural justice/procedural fairness as a ground for judicial review. {P61} (procedural unfairness). 7.7.3 Natural justice/fair hearing: a fundamental common law right/principle. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §123 (treating “natural justice” as one of “the essential requirements laid down by the rule of law for [a statutory decision-making] process to be effective”); Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 at §22 (describing the “fundamental common law right” of parties “to participate in the proceedings in accordance with the common law principles of natural justice and open justice”), §72 (describing “the fundamental principles of open justice and of fairness”), §62 (“the fundamental rights of a party to civil litigation recognised at common law”), §67 (“a fundamental common law right”), §89 (“the right to know and effectively challenge the opposing case has long been recognised by the common law as a fundamental feature of the judicial process”); Arkin v Marshall [2020] EWCA Civ 620 [2020] 1 WLR 3284 at §31 (applying Al Rawi); Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at §2 (right to a fair hearing before an impartial tribunal “properly described as fundamental”); Ridge v Baldwin [1964] AC 40, 113-114 (“the essential requirements of natural justice” described as “something which is basic to our system”); Bushell v Secretary of State for the Environment [1981] AC 75, 95B (Lord Diplock, speaking of a public authority with a discretionary function as owing “a constitutional duty to perform it fairly”); R (Hampstead Heath Winter Swimming Club) v Corporation of London [2005] EWHC 713 (Admin) [2005] 1 WLR 2930 at §33 (“the values of the common law are dictated by current concepts of justice and fairness and reasonableness”); {1.2.16} (the rule of law and basic fairness); {35.2.7} (principle of legality and basic common law fairness/natural justice/impartiality). 7.7.4 Natural justice/procedural fairness having a common law source. R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801 at §42 (“The common law imports a duty of fairness”); N v Royal Bank of Scotland Plc [2017] EWCA Civ 253 [2017] 1 WLR 3938 at §59 (Hamblen LJ, referring to “the justice of the common law”); Cooper v Wandsworth Board of Works (1863) 14 CBNS 180 per Byles J at 194 (referring to “the justice of the common law”), cited in Pearlberg v Varty [1972] 1 WLR 534 per Lord Hailsham at 537D; Wiseman v Borneman [1971] AC 297, 309B (Lord Morris: “Natural justice, it has been said, is only ‘fair play in action’. Nor do we wait for directions from Parliament. The common law has abundant riches: there may we find what Byles J called ‘the justice of the common law’”); Reid v Secretary of State for Scotland [1999] 2 AC 512, 541G (Lord Clyde, referring to whether “the tribunal whose decision is being challenged has … departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed”); Stefan v General Medical Council [1999] 1 WLR 1293, 1297C-D (“an obligation to give reasons … may be held to exist by operation of the common law as a matter of fairness”). 7.7.5 Natural justice/procedural fairness and the rule of law. {P61} (procedural unfairness); R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §83 (“fairness is conducive to the rule of law”), citing R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115 at §71 (Lord Reed, discussing “the rule of law”, and observing: “Procedural requirements that decision-makers should listen to persons who have something relevant to say promote congruence between the actions of decision-makers and the law which should govern their actions”); Chuan v Public Prosecutor [1981] AC 648, 670G (approaching the concept of “law” as meaning a system which includes common law natural justice). 123

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7.7.6 Natural justice/procedural fairness supplementing the legislative scheme. {61.3} (procedural fairness: supplementing the legislative scheme); {35.2.8} (principle of legality and procedural fairness ‘supplementing the legislative scheme’). 7.7.7 Basic fairness and the principle of legality. {35.2.7} (principle of legality and basic common law fairness/natural justice/impartiality). 7.7.8 Broader senses of basic fairness/natural justice. R v SSHD, ex p Pierson [1998] AC 539, 591F (Lord Steyn: “the rule of law enforces minimum standards of fairness, both substantive and procedural”); R (Anufrijeva) v SSHD [2003] UKHL 36 [2004] 1 AC 604 at §30 (Lord Steyn: “fairness is the guiding principle of our public law”); R (Nunn) v Chief Constable of Suffolk Police [2014] UKSC 37 [2015] AC 225 at §§22-23 (common law duty to disclose prosecution material, based on fairness); In Re Officer L [2007] UKHL 36 [2007] 1 WLR 2135 at §§22, 27-29 (overlap between common law duty of fairness to a witness and HRA:ECHR Art 2 safeguarding duty); Mahon v Air New Zealand Ltd [1984] AC 808, 820G-H (Lord Diplock, referring to a principle of “natural justice” that an investigative decision-maker “must base his decision upon evidence that has some probative value”); Moses v Macferlan (1760) 2 Burr 1005 (restitution) per Lord Mansfield CJ at 1012 (“the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money”), cited in Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70, 178G, 201G; Atkinson v United States of America Government [1971] AC 197, 231E-F (Lord Reid: asking whether proceedings “oppressive and contrary to natural justice”). 7.7.9 Procedural fairness applicable by contract/to private bodies/functions. R (AW) v St George’s, University of London [2020] EWHC 1647 (Admin) at §68 (implied term of contract between student and University that University would act fairly in its academic appeal procedures); Rashid v Oil Companies International Marine Forum [2019] EWHC 2239 (QB) at §§74, 76 (natural justice applicable to private body removing ship inspector’s accreditation); Bradley v The Jockey Club [2005] EWCA Civ 1056 at §§37, 41; Dymoke v Association for Dance Movement Psychotherapy UK Ltd [2019] EWHC 94 (QB) at §60 (ADMP’s “decision-making powers … subject to an obligation of procedural fairness in just the same way as would apply to decisions of a public body”); Gray v Marlborough College [2006] EWCA Civ 1262 [2006] ELR 516 (public law principles an indicative starting-point for independent school’s contractual duty to act fairly); Modahl v British Athletic Federation (No 2) [2001] EWCA Civ 1447 [2002] 1 WLR 1192 at §117 (fairness in a domestic contractual context involving “a measure of consistency with parallel principles of fairness” in public law and human rights cases); Weinberger v Inglis [1919] AC 606, 636 (Stock Exchange obliged to comply with principles of natural justice); Wandsworth LBC v A [2000] 1 WLR 1246 (local education authority having a duty to act fairly even where acting as landowner); R (Oxford Study Centre Ltd) v British Council [2001] EWHC Admin 207 [2001] ELR 803 (declaration granted that council having acted in breach of implied contractual term of fairness). 7.7.10 Statutory interpretation and basic fairness. {29.3.13} (interpretation to preserve basic fairness).

7.8 Basic reasonableness. Unreasonableness is a recognised ground for judicial review, applied to public authorities. But the common law’s reasonableness imperative reaches further than that. For example, the Courts will strive to avoid a statutory interpretation which leads to an unreasonable consequence. 7.8.1 Unreasonableness as a ground for judicial review. {P57} (unreasonableness). 7.8.2 The ‘rule of reason’ at common law. {57.1.4} (reasonableness: the rule of ‘reason’). 7.8.3 Basic reasonableness and statutory interpretation. R (Noone) v Governor of Drake Hall Prison [2010] UKSC 30 [2010] 1 WLR 1743 at §§31-32 (Lord Phillips, identifying an interpretation to avoid “capricious and anomalous results”), §41 (Lord Saville: “the legislation must be construed so as to avoid what would otherwise produce irrational and indefensible 124

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results that Parliament could not have intended”), §43 (Lord Brown, describing “the most astonishing consequences which no rational draftsman can ever have contemplated, let alone intended”), §72 (Lord Mance: “each literal construction that has been suggested has wholly implausible and unacceptable consequences”), §86 (Lord Judge: rejecting an interpretation as “absurd because it contravened elementary principles of justice”); R (Morgan Grenfell & Co Ltd) v Inland Revenue Commissioners [2002] UKHL 21 [2003] 1 AC 563 at §8 (Lord Hoffmann: “the courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence … as not having been intended to do so”; this “can be traced back at least to Stradling v Morgan (1560) 1 Pl 199”), §44 (Lord Hobhouse: “the principle of statutory construction is not new and has long been applied in relation to the question whether a statute is to be read as having overridden some basic tenet of the common law”); {35.2.9} (principle of legality and basic common law reasonableness); {29.3.12} (interpretation to avoid unreasonableness/absurdity). 7.8.4 Basic reasonableness applicable to private bodies/functions. Rashid v Oil Companies International Marine Forum [2019] EWHC 2239 (QB) at §74, citing Bradley v The Jockey Club [2005] EWCA Civ 1056 (court asks “in relation to the decision of a domestic body … whether any exercise of judgment or discretion fell within the limits open to the decision maker”); Dymoke v Association for Dance Movement Psychotherapy UK Ltd [2019] EWHC 94 (QB) at §59, citing Braganza v BP Shipping Ltd [2015] UKSC 17 [2015] 1 WLR 1661 (implied contract term including lawful and rational decision-making); Weinberger v Inglis [1919] AC 606 (HL considering whether proprietors of stock exchange had acted arbitrarily or capriciously); Wandsworth LBC v A [2000] 1 WLR 1246 (local education authority having a duty to act reasonably and fairly even where authority acting as a landowner); James D’Avila v Tom Sawyer 22 March 1996 unreported (considering whether decision of Labour Party’s National Executive Committee irrational); Edge v Pensions Ombudsman [2000] Ch 602, 628D (considering analogy between duties of trustees and Wednesbury principles); Colgan v Kennel Club 26 October 2001 unreported (Kennel Club sanction manifestly excessive and disproportionate). 7.8.5 Primary legislation which is ‘irrational’. R (Nicklinson) v Ministry of Justice [2014] UKSC 38 [2015] AC 657 at §75 (Lord Neuberger, describing the case of In re G (Adoption: Unmarried Couple) [2008] UKHL 38 [2009] AC 173 as a HRA-incompatibility case which had involved “the irrationality of the legislation”).

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P8 EU law. A body of principles, recognised while the UK belonged to the EU, governed the compatibility of legislation and decision-making with applicable EU law. 8.1 Basic features of EU law

8.1 Basic features of EU law. Between 1973 and 2020, while the UK was a member of the EU, a body of legal instruments, principles and case law directly governed questions addressed by the judicial review Courts regarding the compatibility of domestic public authority action with EU law. They will continue to apply, during the Brexit transitional period, and then to the extent operational in the context of retained law. Beyond that, a grasp of the key features and principles of EU accountability will continue to be helpful: (i) to understand distinctions and contrasts between public law before and after Brexit; (ii) to understand case law and legal tools, even if ultimately from a ‘comparative law’ perspective. Time will tell whether and in what respects features learned and familiar through EU law accountability will prove enduringly to have permeated the language and philosophy of domestic public law. 8.1.1 EU law applicable during the Brexit implementation period. R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2020] EWCA Civ 649 at §7 (rules applicable during implementation period); R (Simonis) v Arts Council England [2020] EWCA Civ 374 at §§9-10; R (Hughes) v Board of the Pension Protection Fund [2020] EWHC 1598 (Admin) at §108; R (Fratila) v Secretary of State for Work and Pensions [2020] EWHC 998 (Admin) at §15 (basis of claim based on EU Treaty right would disappear at the end of the implementation period, pursuant to European Union (Withdrawal) Act 2018 s.1A and the European Union (Withdrawal Agreement) Act 2020 s.39); R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) at §107 (“the United Kingdom remains subject to EU law during the implementation period”). 8.1.2 The principles of EU law supremacy and ‘direct effect’. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §60 (discussing the European Communities Act 1972); P v Commissioner of Police of the Metropolis [2017] UKSC 65 [2018] ICR 560 at §27 (Lord Reed describing, in the context of “directly effective EU rights”, EU law taking “priority over domestic law”); A v Chief Constable of West Yorkshire [2004] UKHL 21 [2004] ICR 806 at §9 (EU law “prevail[ed] over any provision of domestic law inconsistent with it”); R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603, 659A-C (1972 Act accorded “supremacy to rules of Community law in those areas to which they apply”); R v Secretary of State for Transport, ex p Factortame Ltd [1990] 2 AC 85, 151C (Lord Bridge: “Directly enforceable Community rights … automatically available and must be given unrestricted retroactive effect. The persons entitled to the enjoyment of such rights are entitled to direct and immediate protection against possible infringement of them. The duty to provide such protection rests with the national court. The remedy to be provided against infringement must be effective, not merely symbolic or illusory. The rules of national law which render the exercise of directly enforceable Community rights excessively difficult or virtually impossible must be overridden”). 8.1.3 EU law principles of effectiveness/equivalence/effective protection. Littlewoods Ltd v HMRC [2017] UKSC 70 [2018] AC 869 (applying “the principle of effectiveness”) §43 (which principle “prohibits a member state from rendering the exercise of rights conferred by the EU legal order impossible in practice or extremely difficult”); R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §106 (“the principle of effectiveness: that is to say, that the procedural requirements for domestic actions must not be ‘liable to render practically impossible or excessively difficult’ the exercise of rights conferred by EU law”); P v Commissioner of Police of the Metropolis [2017] UKSC 65 [2018] ICR 560 at

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§29 (“principle of equivalence” meaning “right to bring claims for treatment contrary to the Directive before … the specialist forum for analogous claims of discriminatory treatment under our domestic law”); Tariq v Home Office [2011] UKSC 35 [2012] 1 AC 452 at §15 (“basic principle” of “effective legal protection” requiring “a system of legal remedies and procedures which ensure respect for the relevant right”); FA (Iraq) v SSHD [2011] UKSC 22 [2011] 4 All ER 503 at §12 (“principle of effectiveness”: “National rules may not render the exercise of rights conferred by EU law virtually impossible to achieve or excessively difficult to access”; and “principle of equivalence”: “Nor must national rules be less favourable than those governing comparable domestic actions”); Test Claimants in FII Group Litigation v HMRC [2012] UKSC 19 [2012] 2 AC 337 (discussing the principles of “effectiveness”, “equivalence” and “legal certainty”). 8.1.4 EU law principle of ‘conforming interpretation’: Marleasing. Shields-McKinley v Secretary of State for Justice [2019] EWCA Civ 1954 [2020] QB 521 at §43 (“the conforming principle”); Szatkowski v Poland [2019] EWHC 883 (Admin) [2019] ACD 62 at §21 (under “the principle of conforming interpretation”, “the obligation of the Court when interpreting the [domestic] Act” being “to give effect to the [EU] Framework Decision so far as possible in the light of its wording and purpose in order to attain the result which it pursues provided that such an interpretation does not contradict the clear intent of the Act”), §34 (here, “implication of words necessary to comply with Community law obligations”); R (Shirley) v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 22 [2019] 2 CMLR 503 at §51; P v Commissioner of Police of the Metropolis [2017] UKSC 65 [2018] ICR 560 at §§32-34 (adopting a “conforming interpretation” as to how the statute “should be interpreted”, to resolve the problem of failure to implement directly effective rights in an EU Directive; identifying an interpretation which “runs with the grain of the legislation, and is warranted under EU law, as given domestic effect by the 1972 Act”); United States of America v Nolan [2015] UKSC 63 [2016] AC 463 at §14; Hashwani v Jivraj [2011] UKSC 40 [2011] 1 WLR 1872 at §8 (“the Regulations must, so far as possible, be construed to give effect to the objective of the Directive which they were designed to implement”, applying Marleasing [1992] 1 CMLR 305); Russell v Transocean International Resources Ltd [2011] UKSC 57 [2012] 2 All ER 166 at §22 (regulations “must be interpreted, so far as possible, in conformity with the wording and purposes of the Directive” which it was their “purpose … to implement”); Ghaidan v Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557 at §45 (recognising the parallel between the Marleasing principle and s.3 HRA), §48; Assange v Swedish Prosecution Authority [2012] UKSC 22 [2012] 2 AC 471 at §§207-217 (EU duty of compatible interpretation not applying to determine criminal liability on the basis of an EU framework decision); {46.2.1} (construction to allow validity/compatibility). 8.1.5 Legitimate expectation as a ‘general principle’ of EU law. R v Ministry for Agriculture Fisheries & Food, ex p Hamble Fisheries (Offshore) Ltd [1995] 2 All ER 714, 726a-b; Milk Marketing Board of England and Wales v Tom Parker Farms Ltd [1999] EuLR 154, 164F-G (“the purpose of the principle of protection of legitimate expectations is the avoidance of prejudice to a party who has justifiably relied on the continuance of the other party’s anterior position but where the latter party has changed that anterior position to the detriment of the other”); CNTA v Commission [1975] ECR 533 (compensation in EU law for breach of a legitimate expectation). 8.1.6 Equality/non-discrimination/equal treatment in EU law. R (Hughes) v Board of the Pension Protection Fund [2020] EWHC 1598 (Admin) at §§105, 137, 230 (statutory cap in compensation scheme unjustified age discrimination, contrary to Art 21(1) of the Charter of Fundamental Rights); R (Fratila) v Secretary of State for Work and Pensions [2020] EWHC 998 (Admin) at §§32-33 (social security rules EU law compatible, being objectively justified indirect discrimination on grounds of nationality); R (Seabrook Warehousing Ltd) v HMRC [2019] EWCA Civ 1357 (proportionate interference with EU principle of nationality non-discrimination); P v Commissioner of Police of the Metropolis [2017] UKSC 65 [2018] ICR 560 (panel immunity from suit incompatible with directly effective EU equal treatment rights); R (Cielecki) v SSHD [2017] EWHC 3298 (Admin) [2018] 4 WLR 9 127

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(guidance targeting rough-sleeping EEA nationals for immigration enforcement action constituting unlawful discrimination on grounds of nationality); Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783 (whether domestic state pension credit regulation unlawful as unjustified indirect discrimination on grounds of nationality, contrary to EU Regulation). 8.1.7 EU law general principle of legal certainty. FMX Food Merchants Co Ltd v HMRC [2020] UKSC 1 [2020] 1 WLR 757 at §16. 8.1.8 International law: influence via EU law. Abdulla v Bundesrepublik Deutschland (C175/08) [2011] QB 46 at §§52-53 (EU asylum Directive to be interpreted so as to respect the Refugee Convention, as the cornerstone instrument being given effect in EU law); H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 [2013] 1 AC 338 at §155 (UN Convention on the Rights of the Child Art 3.1 via EU Charter of Fundamental Rights Art 24.2); A v Chief Constable of West Yorkshire [2004] UKHL 21 [2004] ICR 806 (decision incompatible with EU law as influenced by ECHR, rather than by HRA standing alone since ECtHR decisions characterised as prospective only), §13 (ECHR “shaping the current European understanding of what fundamental human rights mean and require”); R v Hertfordshire County Council, ex p Green Environmental Industries Limited [2000] 2 AC 412, 422B (statute giving effect to Directive so “it must be interpreted according to principles of Community law, including its doctrines of fundamental human rights”). 8.1.9 Claimed incompatibility with EU Treaty rights: illustrations. R (Countryside Alliance) v Attorney General [2007] UKHL 52 [2008] 1 AC 719 (freedom of import); R (MAS Group Holdings Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2019] EWHC 158 (Admin) (freedom of export); Gubeladze v Secretary of State for Work and Pensions [2019] UKSC 31 [2019] AC 885 (free movement of persons); R (Simonis) v Arts Council England [2020] EWCA Civ 374 (free movement of goods); R v HM Treasury, ex p Daily Mail & General Trust Plc [1989] QB 446 (freedom of establishment); R (EU Lotto Ltd) v Secretary of State for Digital Culture Media and Sport [2018] EWHC 3111 (Admin) [2019] 1 CMLR 41 (freedom of services); R (Nouazli) v SSHD [2016] UKSC 16 [2016] 1 WLR 1565 at §61 (protection against discrimination on grounds of nationality); R v Secretary of State for Trade and Industry, ex p BT3G Ltd [2001] EWCA Civ 1448 [2001] EuLR 822 (state aid prohibition); Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] UKSC 25 [2011] 1 WLR 1546 (charge with equivalent effect to a customs duty); Sanneh v Secretary of State for Work and Pensions [2015] EWCA Civ 49 [2016] QB 455 (effective citizenship). 8.1.10 Claimed incompatibility of domestic instruments with EU law: illustrations. R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2020] EWCA Civ 649 (whether primary legislation incompatible with EU law); R (Seabrook Warehousing Ltd) v HMRC [2019] EWCA Civ 1357 (whether regulations incompatible with EU law); R (Hemmati) v SSHD [2019] UKSC 56 [2019] 3 WLR 1156 (whether immigration detention policy incompatible with EU Regulation). 8.1.11 EU Charter of Fundamental Rights (CFR). R (Sanneh) v Secretary of State for Work and Pensions [2017] UKSC 73 [2019] AC 845 at §28 (CFR not applicable because state making welfare provision to an individual “personally within the scope of EU law”, but not the “implementation” of EU law); R (Hughes) v Board of the Pension Protection Fund [2020] EWHC 1598 (Admin) at §§105, 137, 230 (statutory cap in compensation scheme unjustified age discrimination, contrary to CFR Art 21(1)); R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §§116-117 (Fees Order incompatible with CFR Art 47); P v Commissioner of Police of the Metropolis [2017] UKSC 65 [2018] ICR 560 at §28 (applying “the right to an effective remedy under article 47 of the Charter”), §30 (applying “the right not to be discriminated against on grounds of disability [as] a fundamental right in EU law, protected by article 21(1) of the Charter”); Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 [2017] ICR 1327 at §§78-78 (statutory provision disapplied because violating CFR article 47). 128

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8.1.12 Proportionality under EU law. {37.1.10} (EU proportionality: formulations). 8.1.13 Reasonableness under EU law. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §75 (Wednesbury standard of review applicable to decisions under EU environmental framework, there being no “fundamental EU rights … interfered with”), §136. 8.1.14 Reference to the Court of Justice of the EU (CJEU). Zipvit Ltd v HMRC [2020] UKSC 15 [2020] STC 865 (reference in a VAT case); R (Association of Independent Meat Suppliers) v Food Standards Agency [2019] UKSC 36 [2019] PTSR 1443 (food standards process issues referred); Wightman v Secretary of State for Exiting the European Union (Case C-621/18) [2019] QB 199 (reference to the CJEU on irrevocability of Brexit notification). 8.1.15 Damages under EU law. Secretary of State for Transport v Arriva Rail East Midlands Ltd [2019] EWCA Civ 2259 [2020] 3 All ER 948 at §72 (Francovich damages a claim in tort for breach of statutory duty); R (Hemmati) v SSHD [2019] UKSC 56 [2019] 3 WLR 1156 at §86; Allen v HM Treasury [2019] EWHC 1010 (Ch) at §§36, 55-56 (applying Francovich v Republic (Italy) [1995] ICR 722 (liability for failure to implement Directive) at 772C-773A); also discussed in EnergySolutions EU Ltd v Nuclear Decommissioning Authority [2017] UKSC 34 [2017] 1 WLR 1373 at §11; Bioplus Life Sciences Private Ltd v Secretary of State for Health [2020] EWHC 329 (QB) at §§8-9, 32 (identifying principles from the case law). As to state liability and domestic courts, see Cooper v Attorney General [2010] EWCA Civ 464 [2011] QB 976; Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156 [2012] PTSR 645 (damages claim under EU-based procurement Regulations); Three Rivers District Council v Bank of England [2003] 2 AC 1, 198G-199B (EU law “capable of conferring upon individuals the right to claim damages from a national authority by one or other or both of two distinct routes. … The first route by which the right to claim damages against the state or an emanation of the state for the non-implementation or misimplementation of a Directive may be asserted is based upon the principle of direct effect. … The second route is based upon the principle of state liability”), 199B-200B (situations where direct effect giving a damages right), 200B-G (state liability for failure to implement a Directive), 200H-201G (both routes involving “three conditions … the rule of law infringed must have been intended to confer rights on individuals, the breach must have been sufficiently serious, and there must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties”).

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P9 The HRA. Domestic legislation must wherever possible be interpreted, and public authorities must act, compatibly with Convention (HRA:ECHR) rights. 9.1 HRA: key features and themes 9.2 HRA s.2: relationship with Strasbourg 9.3 HRA s.3: compatible interpretation 9.4 HRA s.6: compatible public authority action 9.5 HRA just satisfaction

9.1 HRA: key features and themes. By the Human Rights Act 1998 (HRA) Parliament enacted into domestic law protections for rights found in the European Convention on Human Rights (ECHR). It was a transformative change for domestic public law. The HRA, with its various features, requires the Courts to act to provide effective protection in relation to ‘the Convention rights’ in Schedule 1 to the Act. 9.1.1 A constitutional text. Gwinnutt v George [2019] EWCA Civ 656 [2019] Ch 471 at §34 (Singh LJ: “the HRA is … a constitutional statute and permeates the entirety of our legal system”); McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, 297G (HRA meaning that the ECHR “fulfills the function of a Bill of Rights in our legal system”; “the Human Rights Act 1998 is a constitutional measure”); Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) [2003] QB 151 at §§62-64 (HRA as a constitutional statute {6.1.2}); R v SSHD, ex p Simms [2000] 2 AC 115, 131G-132B (HRA meaning “the principles of fundamental human rights which exist at common law [are] supplemented by a specific text, namely the European Convention on Human Rights and Fundamental Freedoms”); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §182 (referring to the HRA’s “unusual” and “perhaps unique” range); In re McKerr [2004] UKHL 12 [2004] 1 WLR 807 at §77 (an “elegant and comprehensive solution”); R (M) v Secretary of State for Health [2003] EWHC 1094 (Admin) [2003] UKHRR 746 at §18 (“The architecture of the Act and its paradigmatic relationship with the doctrine of separation of powers were the product of great legal and constitutional ingenuity”). 9.1.2 Supplementary nature of the HRA: safeguard for existing rights/remedies. See the long title to the 1998 Act (“An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights …”); s.11 (headed “Safeguard for existing human rights”, which provides: “A person’s reliance on a Convention right does not restrict (a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom; or (b) his right to make any claim or bring any proceedings which he could make or bring apart from sections 7 to 9”). 9.1.3 An enhanced rights-based culture. R (P and Q) v SSHD [2001] EWCA Civ 1151 [2001] 1 WLR 2002 at §56 (“the introduction of a rights-based culture into English public law”); R (International Transport Roth GmbH) v SSHD [2002] EWCA Civ 158 [2003] QB 728 at §27 (Simon Brown LJ: “the court’s role under the [HRA] is as the guardian of human rights”); Redmond-Bate v DPP [2000] HRLR 249, 257 (“the constitutional shift which is now in progress”); Douglas v Hello! Ltd [2001] QB 967 at §64 (describing the change from the position in which English law was “historically based on freedoms, not rights”); Venables v News Group Newspapers Ltd [2001] Fam 430 at §100 (HRA as “a new era”); R (Wooder) v Feggetter [2002] EWCA Civ 554 [2003] QB 219 at §45 (“a new and different paradigm of superimposed law”); R v Lambert [2001] UKHL 37 [2002] 2 AC 545 at §6 (“It is clear that the 1998 Act must be given its full import and that long or well entrenched ideas may have to be put aside, sacred cows culled”); Sheffield City Council v Smart [2002] EWCA Civ 4 [2002] HLR 639 at §20 (HRA “not an extension of the jurisdiction. That has not changed. What has changed is the substantive law which governs the actions and omissions of

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public authorities”); R v Kansal (No 2) [2001] UKHL 62 [2002] 2 AC 69 at §51 (“The development of our jurisprudence on [the HRA 1998] has only just begun. New problems are being revealed every week, if not every day”); R (Khan) v Secretary of State for the Health [2003] EWCA Civ 1129 [2004] 1 WLR 971 at §99 (“human rights law casts long shadows in exceptional cases”); Rowland v Environment Agency [2003] EWCA Civ 1885 [2005] Ch 1 at §101 (“a fundamental watershed in the development of both substantive and procedural law”). 9.1.4 Civil and political, not social and economic, rights. R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §29 (ECHR “is not aimed at securing social and economic rights”, but “predominantly civil and political in nature”, “Within the legal framework established by the Council of Europe, social and economic rights are protected by a separate treaty, the European Social Charter”). 9.1.5 ‘Practical and effective’ rights protection. Re Jordan’s Application for Judicial Review [2019] UKSC 9 [2019] HRLR 225 at §29 (“Convention rights must be applied in a way which renders them practical and effective, not theoretical and illusory”); R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 (Lord Reed: “the emphasis placed by the Strasbourg court on the protection of rights which are not theoretical and illusory, but practical and effective. That is consistent with the recognition in domestic law that the impact of restrictions must be considered in the real world”); R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 [2015] 1 WLR 3820 at §24); R (N) v Lewisham LBC [2014] UKSC 62 [2015] AC 1259 at §62 (Lord Hodge: “The ECHR guarantees rights that are practical and effective”); R v Shayler [2002] UKHL 11 [2003] 1 AC 247 at §61 (need for “the fundamental rights enshrined in the Convention … to remain practical and effective”). 9.1.6 Not requiring the impossible/impracticable. R (B) v Secretary of State for Justice [2019] EWCA Civ 9 [2019] 4 WLR 42 at §145 (positive obligations under Arts 2 and 3 “must be interpreted in such a way which does not impose an impossible or disproportionate burden on the authorities”, citing Osman (1998) 29 EHRR 245 §116); R (Hicks) v Commissioner of Police of the Metropolis [2017] UKSC 9 [2017] AC 256 at §29 (Art 5 “must not be interpreted in such a way as would make it impracticable for the police to perform their duty”); Brown v Parole Board [2017] UKSC 69 [2018] AC 1 at §28 (need for “realism” in application of Art 5 requirement for prison facilities). 9.1.7 The ‘mirror principle’: HRA and ECtHR. Fearn v Board and Trustees of the Tate Gallery [2020] EWCA Civ 104 [2020] 2 WLR 1081 at §90 (the “‘mirror principle’ … that our courts should keep pace with, but not go beyond, Strasbourg … dictates caution”); Foreign and Commonwealth Office v Warsama [2020] EWCA Civ 142 [2020] 3 WLR 351 at §111 (“Whilst the Strasbourg Court has not had occasion to consider an argument that an independent inquiry established by the government of a State party to investigate a matter of public concern is not subject to the ECHR, we consider that such an argument is unsustainable”); D v Commissioner of Police of the Metropolis [2018] UKSC 11 [2019] AC 196 at §§76-78 (Lord Kerr, explaining that national courts’ “pronouncements” need not “precisely match those of Strasbourg”), §77 (where no relevant Strasbourg decision, domestic courts “must determine for ourselves the existence or otherwise of an alleged Convention right”), §78 (“Reticence by the courts of the UK to decide whether a Convention right has been violated would be an abnegation of our statutory obligation under section 6 HRA”), §152 (Lord Mance, describing the “general aim of the Human Rights Act 1998” as being “to align domestic law with Strasbourg”), §153 (“If the existence or otherwise of a Convention right is unclear, then it may be appropriate for domestic courts to make up their minds whether the Convention rights should or should not be understood to embrace it. Further, where the European Court of Human Rights has left a matter to states’ margin of appreciation, the domestic courts have to decide what the domestic position is, what degree of involvement or intervention by a domestic court is appropriate, and what degree of institutional respect to attach to any relevant legislative choice”); In re McCaughey [2011] UKSC 20 [2012] 1 AC 725 at §59 (Lord Phillips, describing “the mirror principle”: “The object of the Act was to bring human rights home. This will only be achieved if claimants are able to bring in this jurisdiction claims that they would otherwise 131

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be permitted to bring before the Strasbourg court”); In re McKerr [2004] UKHL 12 [2004] 1 WLR 807 at §63 (Lord Hoffmann, describing “incorporation” as “a misleading metaphor. What the Act has done is to create domestic rights expressed in the same terms as those contained in the Convention. But they are domestic rights, not international rights. Their source is the statute, not the Convention. They are available against specific public authorities, not the United Kingdom as a state. And their meaning and application is a matter for domestic courts, not the court in Strasbourg”), §26 (Lord Nicholls); R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 [2008] AC 153 (territorial reach of the HRA matching the ECHR); R (Animal Defenders International) v Secretary of State for Culture Media and Sport [2008] UKHL 15 [2008] 1 AC 1312 at §§37, 53 (HRA matching ECHR); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57 [2006] 1 AC 529 (mirror as to territoriality); {9.1.23} (meaning of ‘the Convention rights’); {9.2} (HRA s.2: relationship with Strasbourg). 9.1.8 HRA and autonomous human rights jurisprudence. Kay v Lambeth LBC [2006] UKHL 10 [2006] 2 AC 465 at §44 (Lord Bingham: “it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions”); R (M) v Commissioner of Police of the Metropolis [2001] EWHC Admin 553 (HRA meaning “we are to fashion a municipal jurisprudence of human rights”); R (International Transport Roth GmbH) v SSHD [2002] EWCA Civ 158 [2003] QB 728 at §81 (task “to develop an autonomous, and not merely an adjectival, human rights jurisprudence”); Begum v Tower Hamlets LBC [2002] EWCA Civ 239 [2002] 1 WLR 2491 (CA) at §17 (task “to develop a municipal law of human rights by the incremental method of the common law, case by case, taking account of the Strasbourg jurisprudence”). 9.1.9 HRA canons of interpretation. {9.3} (HRA s.3: compatible interpretation); R v SSHD, ex p Simms [2000] 2 AC 115, 131G-132B (Lord Hoffmann, referring to “the principle of legality … expressly enacted as a rule of construction in section 3” and which gains “further support from the obligation of the minister in charge of a Bill to make a statement of compatibility under section 19”); {29.5.5} (interpreting the ECHR). 9.1.10 ECHR key principles. {59.1.5} (the ECHR ‘requirement of legality’ (‘prescribed by law’ etc)); {37.1.3} (proportionality and HRA:ECHR rights); {37.1.15} (fair balance/ excessive burden); {58.5.9} (proportionality: ‘fair balance’); {58.5.10} (beware of the Strasbourg margin of appreciation); {58.5.6} (HRA latitude: the ‘discretionary area of judgment’); R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §27 (explaining that “a qualified right” is one with which “the Convention permits interference … in certain prescribed circumstances”). 9.1.11 The HRA and legislative supremacy. R (National Council for Civil Liberties) v SSHD [2018] EWHC 975 (Admin) [2019] QB 481 at §62 (HRA declaration of incompatibility not affecting the validity, continuing operation or enforcement of primary legislation); SSHD v AF (No 3) [2009] UKHL 28 [2010] 2 AC 269 at §93 (Lord Scott: “It is, of course, open to Parliament to enact legislation that is incompatible with one or more of the Convention rights. The ability to do so is inherent in the constitutional role of a sovereign Parliament”); R v DPP, ex p Kebilene [2000] 2 AC 326, 367A (Lord Steyn: “the carefully and subtly drafted Human Rights Act 1998 preserves the principle of parliamentary sovereignty. In a case of incompatibility … the courts may not disapply the legislation. The court may merely issue a declaration of incompatibility which then gives rise to a power to take remedial action: see section 10”); R v Lyons [2002] UKHL 44 [2003] 1 AC 976 at §58 (Lord Hutton: “Parliament is the supreme law-making body for the United Kingdom and a statute enacted by Parliament which cannot be read under section 3(1) of the Human Rights Act 1998 in a way which is compatible with the Convention prevails over any provision of the Convention or any judgment of the European Court [of Human Rights]”); Doherty v Birmingham City Council [2008] UKHL 57 [2009] AC 367 at §21 (HRA preserving parliamentary sovereignty); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §127 (Lord Hobhouse); 132

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{12.2} (HRA s.4: declaration of incompatibility); {7.4.1} (legislative supremacy: a paramount constitutional principle). 9.1.12 The HRA and ‘subordinate legislation’. R (W) v SSHD [2020] EWHC 1299 (Admin) at §37 (Bean LJ and Chamberlain J, explaining that, as to rules which are “‘subordinate legislation’ as defined by s.21(1), s.3 requires that they be read and given effect in a way which is compatible with the Convention rights. … Even if they cannot be so read, [unless] the material provisions are … mandated by primary legislation, s.6 obliges the Secretary of State to ignore them if and to the extent that they would require her to act incompatibly with Convention rights”), citing Mahad v Entry Clearance Officer [2009] UKSC 16 [2010] 1 WLR 48 at §§28-30 and RR v Secretary of State for Work and Pensions [2019] UKSC 52 [2019] 1 WLR 6430 at §§29-30. 9.1.13 The Strasbourg safety-net: resort to the ECtHR. Celebrated examples include Smith and Grady v United Kingdom (1999) 29 EHRR 493 (after R v Ministry of Defence, ex p Smith [1996] QB 517); A v United Kingdom (2009) 49 EHRR 625 (after A v SSHD [2004] UKHL 56 [2005] 2 AC 68) and Al-Skeini v Secretary of State for Defence (2011) 53 EHRR 589 (after R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 [2008] 1 AC 153). 9.1.14 Citing Strasbourg authority: the need for discipline. {11.1.13} (citing/handling Strasbourg authority). 9.1.15 Temporality and the HRA. R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 (whether a present HRA:ECHR Art 2 duty to investigate 1948 military massacre); In re McCaughey [2011] UKSC 20 [2012] 1 AC 725 at §58 (Lord Phillips: “the HRA does not have retroactive effect. … It does not permit a claimant to bring a claim for breach of a Convention obligation that occurred before the Act came into force”), §67, §85; Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 (no jurisdiction to grant DOI in respect of events pre-2 October 2000; HRA s.3 not applying to a pre-2 October 2000 civil cause of action to alter vested rights); R v Lyons [2002] UKHL 44 [2003] 1 AC 976 at §§18, 25, 61; R v Benjafield; R v Rezvi [2002] UKHL 1 & 2 [2003] 1 AC 1099; JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 [2003] 1 AC 419 at §§65, 73; R v Lambert [2001] UKHL 37 [2002] 2 AC 545; R v Kansal (No 2) [2001] UKHL 62 [2002] 2 AC 69; Magill v Porter [2001] UKHL 67 [2002] 2 AC 357 at §82; Pearce v Mayfield School [2003] UKHL 34 [2004] 1 All ER 339 at §23. 9.1.16 Procedural flexibility: HRA and issues of temporality (October 2000). R (Montana) v SSHD [2001] 1 WLR 552 at §14 (ECHR applied by the Court even though decision predated application of the HRA); R (Mahmood) v SSHD [2001] 1 WLR 840 (although strictly HRA not applicable, CA recognising artificiality of such an approach, especially where defendant had had regard to ECHR); R (Isiko) v SSHD [2001] UKHRR 385 at §4 (treating HRA as if in force, even though policy and implementation in question predated 2 October 2000); R (Fleurose) v Securities and Futures Authority [2001] EWCA Civ 2015 at §3 (Court content to assume that ECHR should apply); R (Wright) v SSHD [2001] EWHC Admin 520 [2001] UKHRR 1399 (‘continuing’ failure); R (Mellor) v SSHD [2001] EWCA Civ 472 [2002] QB 13 at §21 (treating HRA as applicable even though decision pre-2 October 2000); R (MacNeil) v Parole Board [2001] EWCA Civ 448 at §14 (apply the HRA anyway); MacDonald v Ministry of Defence [2001] HRLR 77 (apply ECHR to pre-October 2000 decision because legislation ambiguous); Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37 [2004] 1 AC 546 at §§4, 31, 80, 141 (in case concerning recovery of church repair levy, assuming as agreed by the parties that HRA applicable where ongoing proceedings for recovery of repair liability); R (Bewry) v Norwich City Council [2001] EWHC Admin 657 [2002] HRLR 21 (immaterial that decision pre-October 2000, because common law matching HRA:ECHR Art 6 as to independent and impartial tribunal); R (Wilkinson) v Responsible Medical Officer Broadmoor Hospital [2001] EWCA Civ 1545 [2002] 1 WLR 419 at §25 (focus on legality of future certified treatment, not just past decisions, so HRA treated as applicable); R (Waite) v Hammersmith and Fulham LBC [2002] EWCA Civ 482 [2003] HLR 24 (although acts in question pre-dated October 2000, parties inviting the Court 133

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to decide the case on the basis of the HRA); A v Chief Constable of West Yorkshire [2002] EWCA Civ 1584 [2003] HRLR 137 at §42 (“because of the date at which the acts complained of took place, the Convention jurisprudence is introduced into domestic law not by the medium of the HRA, but by the medium of the [EU] Equal Treatment Directive”). R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29 [2005] 1 WLR 1681 at §58 (sufficient that claimant reaffirmed wish to claim discriminatorily denied welfare benefit after 2 October 2000); R (Juncal) v SSHD [2008] EWCA Civ 869 (applying common law principle of legality where impugned hospital order preceded HRA). 9.1.17 HRA: positive obligations/horizontal effect. R (Ullah) v SSHD [2004] UKHL 26 [2004] 2 AC 323 at §34 (Lord Bingham: “For the purpose of rendering fundamental rights under the ECHR more effective, the ECtHR has developed certain positive obligations viz obligations which require states to take action”); MS (Pakistan) v SSHD [2020] UKSC 9 [2020] 1 WLR 1373 at §35 (breach of positive obligation to investigate Art 4 breach); Fearn v Board and Trustees of the Tate Gallery [2020] EWCA Civ 104 [2020] 2 WLR 1081 at §§88-95 (whether extension of common law tort of nuisance appropriate in the light of Art 8); ZXC v Bloomberg LP [2020] EWCA Civ 611 (claim for misuse of private information an action for breach of privacy rights); R (Joint Council for the Welfare of Immigrants) v SSHD [2020] EWCA Civ 542 (whether Government scheme violating Art 14 because causing private landlords to discriminate); R (LW) v Sodexo Ltd [2019] EWHC 367 (Admin) [2019] 1 WLR 5654 at §§109-110 (Secretary of State in breach of positive obligation under Art 8 to secure adequate and effective arrangements to protect prisoners at contracted-out prisons from systemic non-compliant strip searches); Khuja v Times Newspapers Ltd [2017] UKSC 49 [2019] AC 161 at §21 (Lord Sumption, explaining how the courts “expanded the scope of the equitable action for breach of confidence by absorbing into it the values underlying articles 8 and 10 of the [ECHR], thus effectively recognising a qualified common law right of privacy”), §22 (“the cause of action for invasion of a claimant’s right to private and family life … originates in the incorporation into our law of the [ECHR]”); Staffordshire County Council v K [2016] EWCA Civ 1317 [2017] Fam 278 (Art 5 positive obligations in context of welfare order where private sector provision for person lacking mental capacity); Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799 at §32 (whether Art 8 in a deportation context “analysed in terms of positive or negative obligations is … unlikely to be of substantial importance”); McDonald v McDonald [2016] UKSC 28 [2017] AC 273 (Art 8 not having the consequence that proportionality question arising in possession proceedings by private landlord), §34 (different if landlord a public authority), §41 (“would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, whereas the purpose of the Convention is … to protect citizens from having their rights infringed by the state”); O (A Child) v Rhodes [2015] UKSC 32 [2016] AC 219 at §120 (Art 10 jurisprudence relevant to a “purely common law issue” where a child claiming in tort against a parent and seeking an injunction restraining publication of an autobiographical book); {59.3.2} (Article 2: positive obligation (safeguarding)); {59.3.2} (Article 3: positive obligation (safeguarding)); {59.6.2} (Article 8: ‘positive’ obligation: illustrations). 9.1.18 Issues of HRA territoriality. ECHR Art 1 (“The high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section I of this Convention”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010 (HRA not applicable in context of British Indian Ocean Territory); Lord Advocate v Dean [2017] UKSC 44 [2017] 1 WLR 2721 (applicability of HRA based on ill-treatment after extradition); R (Ismail) v SSHD [2016] UKSC 37 [2016] 1 WLR 2814 (authorising service of foreign judgment not engaging Convention rights); R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 [2014] 1 WLR 2697 at §34 (British national detained overseas outside Art 1 jurisdiction in relation to decisions regarding funding of representation); Smith v Ministry of Defence [2013] UKSC 41 [2014] AC 52 (extra-territoriality); R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29 [2011] 1 AC 1 (extra-territoriality); R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 [2008] 1 AC 153 (HRA extra-territorial reach matching ECHR Art 1 jurisdiction); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] 134

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UKHL 57 [2006] 1 AC 529 (Protocol I not extended to this British Overseas Territory); R (Ullah) v SSHD [2004] UKHL 26 [2004] 2 AC 323 (ECHR rights engaged in immigration removal based on risk of rights-violations there). 9.1.19 Duty to take account of Strasbourg case law: HRA s.2. {9.2} 9.1.20 HRA and authority/precedent. {11.1.10} (precedent and HRA: binding domestic precedent governs). 9.1.21 Relationship between the ECHR and the common law. {6.3.9} (international law: guiding development of the common law). 9.1.22 HRA and proper defendant. R (Amin) v SSHD [2002] EWCA Civ 390 [2003] QB 581 (CA) at §39 (central government as “the proper body to stand in the shoes of the state when it is called on to answer an alleged violation of article 2”) (HL is at [2003] UKHL 51 [2004] 1 AC 653). 9.1.23 Meaning of ‘the Convention rights’. See HRA s.1 (“the Convention rights”), s.2 (“Interpretation of Convention rights”), also s.21(1) (“Interpretation”); In re McKerr [2004] UKHL 12 [2004] 1 WLR 807 at §25 (Lord Nicholls, referring to rights “created by the 1998 Act by reference to the Convention”); R (S) v Chief Constable of South Yorkshire [2004] UKHL 39 [2004] 1 WLR 2196 at §66 (emphasising the importance of “the equivalent rights in the Convention”); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §181 (“Convention rights are to be seen as an expression of fundamental principles rather than as a set of mere rules”); {9.1.7} (the ‘mirror principle’: HRA and ECtHR). 9.1.24 ECHR provisions not expressly included within the HRA. See ECHR Art 1 (“Obligation to respect human rights. The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”; {9.1.18} (issues of HRA territoriality)); {59.10.11} (ECHR Art 13 (not in HRA): the right to an effective remedy); R (Aru) v Chief Constable of Merseyside [2004] EWCA Civ 199 [2004] 1 WLR 1697 at §13 (ECHR Protocol VI not domesticated); R (Mullen) v SSHD [2004] UKHL 18 [2005] 1 AC 1 (UK not having signed or ratified Protocol VII but relevant to understanding the jurisprudence). 9.1.25 Violation of Convention rights. {P59} (HRA violation). 9.1.26 Derogation. See HRA s.14 (“derogations”); ECHR Art 15(1) (“Derogation in time of emergency”, providing that: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”). 9.1.27 HRA s.13: determination affecting freedom of thought, conscience and religion. HRA s.13 (“Freedom of thought, conscience and religion. (1) If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right. (2) In this section ‘court’ includes a tribunal”).

9.2 HRA s.2: relationship with Strasbourg. The Convention rights scheduled to the HRA are seen to ‘mirror’ those contained in the ECHR. Under the ECHR system the Convention rights are enforceable through applications to the European Court of Human Rights in Strasbourg. A statutory duty in HRA s.2 requires domestic courts to take account of Strasbourg case law. That means: (1) clear Strasbourg authority about the nature and application of the Convention rights is likely to be followed; (2) the domestic Court may decline to do so, especially where further ‘dialogue’ with Strasbourg is considered appropriate; (3) the domestic Courts can, in a principled way, fashion an autonomous rights jurisprudence (including applying the Convention rights ‘ahead’ of where Strasbourg has 135

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yet been); and (4) where Strasbourg identifies a ‘margin of appreciation’ (an area for permissible domestic evaluative judgment), that space is occupied by both the impugned executive authority and the reviewing Court, as a space within which the Court could (in its judicial evaluative judgment) overturn as HRA-incompatible what the executive (in its executive evaluative judgment) has decided or done. 9.2.1 Taking account of Strasbourg: HRA s.2. See HRA s.2(1)(a) (“A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights …, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen”). 9.2.2 Domestic HRA precedent governs. {11.1.10} (precedent and HRA: binding domestic precedent governs). 9.2.3 HRA s.2: general. Manchester City Council v Pinnock (No 1) [2010] UKSC 45 [2011] 2 AC 104 at §48 (Lord Neuberger: “This court is not bound to follow every decision of the European court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in a constructive dialogue with the European court which is of value to the development of Convention law. … Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, … it would be wrong for this court not to follow that line”); R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 [2015] AC 1344 at §72 (“The degree of constraint imposed or freedom allowed by the phrase ‘must take into account’ is context specific”), applied in R (Hallam) v Secretary of State for Justice [2019] UKSC 2 [2020] AC 279 at §§72, 89. 9.2.4 Following Strasbourg. Brown v Parole Board [2017] UKSC 69 [2018] AC 1 at §44 (appropriate now to adopt the same approach to Art 5 as followed by the Strasbourg Court); Poshteh v Kensington and Chelsea Royal LBC [2017] UKSC 36 [2017] AC 624 at §36 (Lord Carnwath: “we would normally follow a ‘clear and constant line’ of chamber decisions”); R (Chester) v Secretary of State for Justice [2013] UKSC 63 [2014] AC 271 at §§34, 110, 137 (appropriate to follow Grand Chamber decisions on prisoner voting ban); SSHD v AF (No 3) [2009] UKHL 28 [2010] 2 AC 269 at §70 (Strasbourg judgment (Grand Chamber) “requires these appeals to be allowed”), §64 (describing the issue as resolved by Strasbourg), §98 (Lord Rodger: “Strasbourg has spoken, the case is closed”); Manchester City Council v Pinnock (No 1) [2010] UKSC 45 [2011] 2 AC 104 at §48 (“we should usually follow a clear and constant line of decisions by the European court. … But we are not actually bound to do so”); In re McCaughey [2011] UKSC 20 [2012] 1 AC 725 at §121 (applying “an important decision of the Grand Chamber which is now well entrenched in the Strasbourg jurisprudence”); Cadder v HM Advocate [2010] UKSC 43 [2010] 1 WLR 2601 at §§47-48 (consistent line of case law); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §26 (Lord Slynn: “In the absence of some special circumstances … the court should follow any clear and constant jurisprudence of the European Court of Human Rights”); R (Ullah) v SSHD [2004] UKHL 26 [2004] 2 AC 323 at §20 (Lord Bingham: “the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg Court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law”), applied in N v SSHD [2005] UKHL 31 [2005] 2 AC 296 at §24; R (S) v Chief Constable of South Yorkshire [2004] UKHL 39 [2004] 1 WLR 2196 at §66 (Strasbourg decisions “provide authoritative guidance”); Pelling v Bruce-Williams [2004] EWCA Civ 845 [2004] Fam 155 at §35 (not “strictly bound” but it would “challenge the fundamental purpose of the Convention were we to prefer the conclusions of the minority to those of the majority without any fresh development or argument to justify departure”); R (Beeson) v Dorset County Council [2002]

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EWCA Civ 1812 [2003] UKHRR 353 at §19 (“not precedent” but “the integrity of our law as a whole presses in favour of shared principle between London and Strasbourg”). 9.2.5 The ‘mirror principle’: HRA and ECtHR. {9.1.7} 9.2.6 HRA and autonomous human rights jurisprudence. {9.1.8} 9.2.7 Grand Chamber and Chamber. R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 [2009] AC 311 at §31 (speaking of a reasoned decision of the Strasbourg Grand Chamber: “it would require the most exceptional circumstances before any national court should refuse to apply the decision”); R (Anderson) v SSHD [2002] UKHL 46 [2003] 1 AC 837 at §18 (Court “will not without good reason depart from the principles laid down in a carefully considered judgment of the [Strasbourg] Court sitting as a Grand Chamber”); SSHD v AF (No 3) [2009] UKHL 28 [2010] 2 AC 269 at §§70, 108, 114 (appropriate to follow decision of Grand Chamber); Cadder v HM Advocate [2010] UKSC 43 [2010] 1 WLR 2601 at §46 (“formidable reason” for following unanimous decision of the Grand Chamber); Manchester City Council v Pinnock (No 1) [2010] UKSC 45 [2011] 2 AC 104 at §48 (“we are not actually bound … (in theory at least) to follow a decision of the Grand Chamber”); Poshteh v Kensington and Chelsea Royal LBC [2017] UKSC 36 [2017] AC 624 at §37 (declining to follow decision of Chamber, where “unlikely to be the last word”; “without disrespect to the Chamber” its decision “not … a sufficient reason to depart from the fully considered and unanimous conclusion [of this Court]”; “It is appropriate that we should await a full consideration by a Grand Chamber before considering whether (and if so how) to modify our position”). 9.2.8 Commission. HRA s.2(1)(b) and (c) (“A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any … (b) opinion of the Commission given in a report adopted under Article 31 of the Convention, (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen”); R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926 [2003] QB 1300 at §37 (s.2 duty applying to “the jurisprudence of the Convention organs, including the Commission”) (HL is at [2005] UKHL 15 [2005] 2 AC 246); Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932 [2005] HRLR 1136 (taking account of Commission decisions under s.2). 9.2.9 Committee of Ministers. HRA s.2(1)(d) (“A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any … (d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen”); Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §§142-146 (not following decision of Committee of Ministers where context and circumstances had changed). 9.2.10 Nature of the content of the Strasbourg authority. M v Secretary of State for Work and Pensions [2006] UKHL 11 [2006] 2 AC 91 at §29 (wrong “save for good reason” to “depart from a decision of the ECtHR on the interpretation of an article in the Convention”); Kay v Lambeth LBC [2006] UKHL 10 [2006] 2 AC 465 at §28 (Lord Bingham: “it is ordinarily the clear duty of our domestic courts … to give practical recognition” to “the principles laid down by the Strasbourg Court as governing the Convention rights”); Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2001] EWCA Civ 713 [2002] Ch 51 at §44 (“task is not to cast around in the European Human Rights Reports like blackletter lawyers seeking clues”, but “to draw out the broad principles which animate the Convention”) (HL is [2003] UKHL 37 [2004] 1 AC 546); R (Saunders) v Independent Police Complaints Commission [2008] EWHC 2372 (Admin) [2009] 1 All ER 379 at §40 (Underhill J: “Decisions of the European Court of Human Rights on the facts of a particular case ought not to be treated as a binding precedent, even in a case where the material facts appear to be

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similar. The only authoritative parts of a judgment are the statements of principle which it expounds”). 9.2.11 ‘Keeping pace’ and ‘marching ahead’. R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559 [2020] 2 All ER 813 at §72 (“The approach which the courts take under the HRA is in general to keep pace with the jurisprudence of the Strasbourg Court but not to go beyond it”); R (National Council for Civil Liberties) v SSHD [2019] EWHC 2057 (Admin) [2020] 1 WLR 243 at §335 (“We do not consider that the present context is an appropriate one in which this Court should go further than the Strasbourg Court has to date been prepared to go”); R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 [2008] 1 AC 153 at §§90, 105-106 (need to keep pace; not leaping ahead); R (A) v Director of Establishments of Security Service [2009] UKSC 12 [2010] 2 AC 1 at §30 (declining to “go further than the Strasbourg jurisprudence has yet gone”); R (Ullah) v SSHD [2004] UKHL 26 [2004] 2 AC 323 at §20 (“duty … to keep pace … no more”); IR (Sri Lanka) v SSHD [2011] EWCA Civ 704 [2012] 1 WLR 232 at §16 (suggested approach “would involve marching ahead”); R (Black) v Secretary of State for Justice [2009] UKHL 1 [2009] AC 949 at §58 (“our courts should be slow to go beyond what the European court has held”), §85 (appropriate to “leave any such development to the European court itself”); Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §74 (“It must be for the Strasbourg court to provide the authoritative guidance that is needed”); Ambrose v Harris [2011] UKSC 43 [2011] 1 WLR 2435 at §19 (“Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on treaty obligation, into free-standing rights of the court’s own creation”), §20 (“It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies”). 9.2.12 Going with the natural flow of the Strasbourg case law. Moohan v Lord Advocate [2014] UKSC 67 [2015] AC 901 at §13 (Lord Hodge: “On occasion our courts may choose to go further in the interpretation and application of the ECHR than Strasbourg has done where they reach a conclusion which flows naturally from Strasbourg’s existing case law”); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §219 (sufficient if “we can … ‘reasonably foresee’ … how the case would be decided in Strasbourg”); Rabone v Pennine Care NHS Trust [2012] UKSC 2 [2012] 2 AC 72 at §112 (appropriate to recognise “a conclusion to flow naturally from existing Convention case law”, even if the “particular question which arises under the Convention has not yet been specifically resolved by the Strasbourg jurisprudence”); R (Quila) v SSHD [2011] UKSC 45 [2012] 1 AC 621 at §43 (declining to follow an “old decision” of the ECtHR, with which more recent decisions “are inconsistent”, albeit no “clear and consistent jurisprudence”). 9.2.13 Going further than Strasbourg has. R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 [2015] AC 1344 at §18 (“The domestic court may have to decide for itself what the Convention rights mean, in a context which the European court has not yet addressed”); Moohan v Lord Advocate [2014] UKSC 67 [2015] AC 901 at §52 (Lord Neuberger: “It is open to us to go further than the Strasbourg court in deciding on the ambit of a provision in the Convention, but such an unusual course would require sound justification”), §105 (Lord Wilson (dissenting in the result): “where there is no directly relevant decision of the ECtHR … we … must determine for ourselves the existence or otherwise of an alleged Convention right”); BBC v Sugar (No 2) [2012] UKSC 4 [2012] 1 WLR 439 at §59 (Lord Wilson, recognising that the court may need to “do more than to shadow the European Court of Human Rights … no doubt in aid of the further development of human rights and sometimes in aid of their containment within proper bounds”), §113 (Lord Mance, agreeing); R (MK (Iran)) v SSHD [2010] EWCA Civ 115 [2010] 1 WLR 2059 at §74 (Sedley LJ, explaining that “some commentators” had found “surprising” the then stated “strong … imperative not to move ahead of Strasbourg jurisprudence”); Ambrose v Harris [2011] UKSC 43 [2011] 1 WLR 2435 at §128 (Lord Kerr, dissenting in the result: “in the absence of a declaration by the European Court of Human Rights as to the validity of a claim to a Convention right, 138

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it is not open to courts in this country to adopt an attitude of agnosticism and refrain from recognising a right simply because Strasbourg has not spoken”); cf Al Rawi v Security Service [2011] UKSC 34 [2012] 1 AC 531 at §68 (“It is … open to our courts to provide greater protection through the common law than that which is guaranteed by the Convention”). 9.2.14 Declining to follow Strasbourg: general. R (Hallam) v Secretary of State for Justice [2019] UKSC 2 [2020] AC 279 (doubting clarity and coherence of Strasbourg case law and, if necessary, declining to follow it); In re McLaughlin [2018] UKSC 48 [2018] 1 WLR 4250 [2018] 1 WLR 4250 at §49 (Lord Mance, describing a Strasbourg authority as one to be “regarded as wrong or should not be followed, at least domestically”); Poshteh v Kensington and Chelsea Royal LBC [2017] UKSC 36 [2017] AC 624 at §37 (Strasbourg Chamber decision not “a sufficient reason to depart from the fully considered and unanimous decision” of the SC), §33 (in circumstances where the Chamber “failed to address in any detail” the SC’s reasoning and concerns), §34 (unclear whether “fully appreciated the width of the discretion”); R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 [2015] AC 1344 at §18 (Lord Mance and Lord Hughes: “the domestic court may conclude that such Strasbourg authority as exists cannot be supported, and may decline to follow it in the hope that it may be reconsidered”); Brown v Parole Board [2017] UKSC 69 [2018] AC 1 at §44 (departing from Kaiyam and now following Strasbourg line of authority, in light of subsequent cases); R (Animal Defenders International) v Secretary of State for Culture Media and Sport [2008] UKHL 15 [2008] 1 AC 1312 (declining to follow unpersuasive Strasbourg decision); R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23 [2003] 2 AC 295 at §76 (doubting applicability of decisions if they “compelled a conclusion fundamentally at odds with the distribution of powers under the British constitution”); Napier v Scottish Ministers [2005] UKHRR 268 (domestic court not required to have regard to ECtHR decisions as to standard of proof). 9.2.15 Declining to follow Strasbourg: misappreciation and ‘dialogue’. McDonald v McDonald [2016] UKSC 28 [2017] AC 273 at §24 (describing Pinnock [2010] UKSC 45 as “the resolution of a protracted inter-judicial dialogue between the House of Lords and the Strasbourg court”; as to which see too Aster Communities Ltd v Akerman-Livingstone [2015] UKSC 15 [2015] AC 1399 at §20); R v Horncastle [2009] UKSC 14 [2010] 2 AC 373 at §11 (Lord Phillips: open to decline to follow Strasbourg on “rare occasions where the where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process … to give the Strasbourg court the opportunity to reconsider the particular aspect … [in] what may prove to be a valuable dialogue”), §107 (“the case law appears to have developed without full consideration of the safeguards against an unfair trial that exist under the common law procedure”), §108 (inviting Strasbourg to take account of reasons for not following its previous case law), §§117-118 (Lord Brown, inviting the Grand Chamber to overrule previous decision), leading to Al Khawaja v United Kingdom (2012) 54 EHRR 807 (Strasbourg position modified, with Judge Bratza acknowledging the “judicial dialogue” which had occurred); R v Lyons [2002] UKHL 44 [2003] 1 AC 976 at §46 (“obviously highly desirable that there should be no divergence between domestic and ECtHR jurisprudence” but may decline to follow if apparent that “the ECtHR has misunderstood or been misinformed about some aspect of English law”); R (Chester) v Secretary of State for Justice [2013] UKSC 63 [2014] AC 271 at §§34, 137 (no prospect of further meaningful dialogue). 9.2.16 Domestic HRA law incompatibility within the ‘margin of appreciation’. {58.5.12} (MOA is shared between branches of the state: HRA-breach within the MOA). 9.2.17 Common law rights going further than the ECHR. {7.1.13}

9.3 HRA s.3: compatible interpretation. Section 3 of the Human Rights Act 1998 imposes a strong obligation to interpret domestic legislation, wherever “possible”, compatibly with Convention rights. Much is “possible”. In those (rare) cases where it is truly impossible for primary legislation to be interpreted so that it (or secondary 139

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legislation made under it) is ECHR-compatible, there is the last-resort ‘declaration of incompatibility’, triggering a fast-track mechanism of amendment by Parliament. 9.3.1 Rule of interpretation (s.3): reading legislation ECHR-compatibly. See HRA s.3 (“Interpretation of legislation. (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section – (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility”); DPP v Ziegler [2019] EWHC 71 (Admin) [2020] QB 253 at §61 (Singh LJ and Farbey J: “the first port of call is the strong obligation of interpretation in section 3 of the HRA”); Ghaidan v GodinMendoza [2004] UKHL 30 [2004] 2 AC 557 at §26 (describing s.3 as “a key section” in the HRA; “one of the primary means by which Convention rights are brought into the law of this country”), §39 (s.3 as “the principal remedial measure”); cf {8.1.4} (EU law principle of ‘conforming interpretation’: Marleasing); {35.1.8} (principle of legality as a principle of statutory interpretation). 9.3.2 HRA s.3: in a nutshell. Smith v Lancashire Teaching Hospitals NHS Trust [2017] EWCA Civ 1916 [2018] QB 804 at §96 (Sir Terence Etherton MR: “the interpretive power under section 3 is very wide and can require a court to read in words which change the meaning of the enacted legislation. The only limitations are that the court cannot adopt a meaning which goes against the grain of the legislation, that is to say which is inconsistent with a fundamental feature of the legislation, and the court cannot make decisions for which they are not equipped”). 9.3.3 HRA s.3 legislative compatibility: focus in time. WB v W District Council [2018] EWCA Civ 928 [2018] HLR 30 at §35 (Arden LJ: “The question whether an interpretation is ‘possible’ must fall to be determined by this Court at today’s date”); Ghaidan v GodinMendoza [2004] UKHL 30 [2004] 2 AC 557 at §23 (question is not whether the legislation was compatible when enacted, but whether it is compatible when the issue arises for determination); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 at §144 (compatibility at date when applied not enacted); Hounslow LBC v Powell [2011] UKSC 8 [2011] 2 AC 186 at §98 (HRA s.3 can alter the construction of pre-HRA legislation, by having “the effect of amending legislation”). 9.3.4 Key guidance on HRA s.3. Gilham v Ministry of Justice [2019] UKSC 44 [2019] 1 WLR 5905 at §39 (Lady Hale, summarising these principles: that HRA s.3 is “the primary remedy”; that “what is ‘possible’ goes well beyond the normal canons of literal and purposive statutory construction”; that “what was possible by way of interpretation under EU law was a pointer to what [is] possible under section 3(1)”; that the obligation does “not depend critically on the particular form of words used, as opposed to the concept”; that “to attach decisive importance to the precise adjustments required to the language of the particular provision would reduce the exercise to a game”; that the “limits [are] that it [is] not possible to ‘go against the grain’ of the legislation in question or to interpret it inconsistently with some fundamental feature of the legislation”), §44 (s.3 solution here); Ghaidan v Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557 at §30 (“the interpretative obligation decreed by section 3 is of an unusual and far-reaching character” which bids the Court to “depart from the unambiguous meaning the legislation would otherwise bear” and from “the intention reasonably to be attributed to Parliament in using the language in question”), §32 (“a court can modify the meaning, and hence the effect, of primary and secondary legislation”), §33 (but “cannot … adopt a meaning inconsistent with a fundamental feature of legislation”, the adopted meaning being one which “must be compatible with the underlying thrust of the legislation being construed”); Sheldrake v DPP [2004] UKHL 43 [2005] 1 AC 264 at §28 (Lord Bingham, asking whether the suggested interpretation “would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the 140

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substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation”); Principal Reporter v K [2010] UKSC 56 [2011] 1 WLR 18 at §§60-61 (summarising key authorities); R v Lambert [2001] UKHL 37 [2002] 2 AC 545 at §79 (whether meaning contradicted by express words or necessary implication: no power “to overrule decisions which the language of the statute shows have been taken on the very point at issue by the legislator”); R v A (No 2) [2001] UKHL 25 [2002] 1 AC 45 at §§13, 43 (“possible” interpretation under s.3 may be one which ordinary literal and purposive approaches could not yield), §44 (“the interpretative obligation under section 3 of the 1998 Act is a strong one”; “it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort”); In re S (Care Order: Implementation of Care Plan) [2002] UKHL 10 [2002] 2 AC 291 at §40 (“a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate”). 9.3.5 HRA s.3: interpreting not legislating. McDonald v McDonald [2016] UKSC 28 [2017] AC 273 at §69 (“there is a difference between interpretation, which is a matter for the courts and others who have to read and give effect to legislation, and amendment, which is a matter for Parliament”; “Reading in … would not ‘go with the grain of the legislation’ but positively contradict it”), §68 (“there are substantive limits to what the courts can achieve under section 3(1)”); Principal Reporter v K [2010] UKSC 56 [2011] 1 WLR 18 at §61 (“an important distinction between interpretation and amendment”), §69 (reading in a phrase which secures compatibility and “goes very much with, rather than against, the grain of the legislation”); R (Wright) v Secretary of State for Health [2009] UKHL 3 [2009] AC 739 at §39 (not for the court “to attempt to rewrite the legislation”, since the necessary “delicate balance” should “be struck in the first instance by the legislature”); R (Anderson) v SSHD [2002] UKHL 46 [2003] 1 AC 837 at §30 (compatible interpretation “would not be judicial interpretation but judicial vandalism: it would give the section an effect quite different from that which Parliament intended and would go well beyond any interpretative process sanctioned by section 3 of the 1998 Act”), §59 (“It would … be … interpolation inconsistent with the plain legislative intent. … Section 3(1) is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute”); R v Shayler [2002] UKHL 11 [2003] 1 AC 247 at §52 (“If compatibility cannot be achieved without overruling decisions which have already been taken on the very point at issue by the legislator, or if to do so would make the statute unintelligible or unworkable, it will be necessary to leave it to Parliament to amend the statute”); R (Wilkinson) v Commissioners of Inland Revenue [2005] UKHL 30 [2005] 1 WLR 1718 at §17 (HRA s.3 not “requiring the courts to give the language of statutes acontextual meanings”; “the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute”), §19 (reinterpretation one which “no way … any reasonable reader” could have understood the words used); Bellinger v Bellinger [2003] UKHL 21 [2003] 2 AC 467 (refusing to give “male” and “female” a novel and extended meaning). 9.3.6 Minimum necessary reinterpretation. R (Middleton) v West Somerset Coroner [2004] UKHL 10 [2004] 2 AC 182 at §34 (HL accepting that there should be “no greater revision of the existing regime than is necessary to secure compliance with the Convention”; “the scheme enacted by and under the authority of Parliament should be respected save to the extent that a change of interpretation (authorised by section 3 of the Human Rights Act 1998) is required to honour the international obligations of the United Kingdom expressed in the Convention”); R (Hurst) v London Northern District Coroner [2007] UKHL 13 [2007] 2 AC 189 at §52 (strained interpretation not applying where no HRA-incompatibility would arise). 9.3.7 HRA s.3 in action: further illustrations. WB v W District Council [2018] EWCA Civ 928 [2018] HLR 30 at §35 (Arden LJ: “it is not the function of section 3 to require the courts 141

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to apply a Convention-compliant interpretation if other principles of interpretation prevent it from doing so”); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §41 (suggested reading-down “would depart from the statutory scheme, and run contrary to the grain of the legislation”), §137; R v Waya [2012] UKSC 51 [2013] 1 AC 294 at §16 (reading an A1P1-compatibility proviso into the proceeds-of-crime legislation); Pomiechowski v District Court of Legnica [2012] UKSC 20 [2012] 1 WLR 1604 at §39 (reading in a discretion to extend time for extradition appeals by UK citizens); Hounslow LBC v Powell [2011] UKSC 8 [2011] 2 AC 186 at §§51, 56 (mandatory statutory grounds for possession read to allow Art 8 proportionality challenge), §62 (but HRA s.3 reading down not possible as to statutory maximum postponement of possession order); R (GC) v Metropolitan Police Commissioner [2011] UKSC 21 [2011] 1 WLR 1230 (SC addressing the relationship between ECHR-compatible interpretation under HRA s.3 and the legislative intent/purposive meaning of the relevant domestic statute), §56 (Lord Phillips, suggesting that matters “extrinsic to the wording” would need to be “extraordinarily cogent in order to overcome the effect of section 3”); Thomas v Bridgend County Borough Council [2011] EWCA Civ 862 [2012] PTSR 441 at §68 (not necessary to identify a precise form of words applicable under the s.3 reinterpretation); R v Briggs-Price [2009] UKHL 19 [2009] AC 1026 (reading down as to standard of proof); SSHD v AF (No 3) [2009] UKHL 28 [2010] 2 AC 269 at §§67, 95 (fairness proviso read into control order regime), after SSHD v MB [2007] UKHL 46 [2008] 1 AC 440 at §§72, 92; R (Middleton) v West Somerset Coroner [2004] UKHL 10 [2004] 2 AC 182 at §35 (reinterpreting coroner’s statutory function to ensure Art 2 compatibility); R (Baiai) v SSHD [2008] UKHL 53 [2009] AC 287 at §32 (implied limiting proviso to secure Art 12 compatibility); R (Hammond) v SSHD [2005] UKHL 69 [2006] 1 AC 603 (implied condition to ensure Art 6 compatibility); R v DPP, ex p Kebilene [2000] 2 AC 326, 373F (s.3 as “a strong adjuration”); R v Z [2005] UKHL 22 [2005] 2 AC 467 at §62 (HRA s.3 “a strong obligation”; “a strong rebuttable presumption”). 9.3.8 Relationship between HRA s.3 and principle of legality/common law position. Ahmed v HM Treasury [2010] UKSC 2 [2010] 2 AC 534 at §112 (Lord Phillips: “the House of Lords has extended the reach of section 3 of the HRA beyond that of the principle of legality”), §117 (“I do not consider that the principle of legality permits a court to disregard an unambiguous expression of Parliament’s intention. To this extent its reach is less than that of section 3 of the HRA”); Sheffield City Council v Smart [2002] EWCA Civ 4 [2002] HLR 639 at §42 (“we have reached the point, and did so before incorporation of ECHR, where if Parliament is to legislate so as to deny or frustrate what the law recognises as a fundamental or constitutional right, the courts will look for specific provision or necessary implication to that effect”); cf R (Noone) v Governor of Drake Hall Prison [2010] UKSC 30 [2010] 1 WLR 1743 (purposive interpretation “possible”, including reading in words, to avoid absurd consequences); {P35} (principle of legality); {29.1.2} (purposive interpretation). 9.3.9 HRA s.3: further matters. Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 (use of HRA s.3 inapt where compatibility could be secured by another statute or use of common law powers); R (South Gloucestershire Local Education Authority) v South Gloucestershire Schools Appeal Panel [2001] EWHC Admin 732 [2002] ELR 309 at §49 (in determining the meaning of a policy, duty to have regard to the ECHR and so far as possible adopt a compatible interpretation); {46.2.3} (construction to allow ECHR-compatibility (HRA s.3): reading down/reading in). 9.3.10 HRA s.4: declaration of incompatibility. {12.2}

9.4 HRA s.6: compatible public authority action. Section 6 of the Human Rights Act 1998 prohibits action (or inaction) by a “public authority” which is incompatible with the Convention rights. Under section 7 the “victim” of an ECHR-violation is entitled to bring proceedings, including by judicial review. 9.4.1 HRA s.6: public authority duty to act ECHR-compatibly. HRA s.6 (“It is unlawful for a public authority to act in a way which is incompatible with a Convention right. 142

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(2) Subsection (1) does not apply to an act if – (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section ‘public authority’ includes – (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, Human Rights Act 1998 but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. … (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private. (6) ‘An act’ includes a failure to act but does not include a failure to – (a) introduce in, or lay before, Parliament a proposal for legislation; or (b) make any primary legislation or remedial order”); R (National Council for Civil Liberties) v SSHD [2019] EWHC 2057 (Admin) [2020] 1 WLR 243 at §67 (Singh LJ and Holgate J: “The main way in which the Convention rights are given effect in domestic law is through the obligation in section 6”); Attorney General’s Reference No 2 of 2001 [2003] UKHL 68 [2004] 2 AC 72 at §32 (“The object of … section 6(1) is plain: such conduct should not occur. Public authorities cannot lawfully, that is, properly, conduct themselves in a way which is incompatible with a Convention right”); R (Morris) v Westminster City Council [2005] EWCA Civ 1184 [2006] 1 WLR 505 at §66 (s.6 can turn a statutory power into a statutory duty, as where the failure to exercise the power would mean acting ECHR-incompatibly); R (Roberts) v Metropolitan Police Commissioner [2015] UKSC 79 [2016] 1 WLR 210 at §42 (Lady Hale: “It cannot be too often stressed that, whatever the scope of the power in question, it must be operated in a lawful manner. It is not enough simply to look at the content of the power. It has to be read in conjunction with section 6(1) of the Human Rights Act 1998, which makes it unlawful for a police officer to act in a manner which is incompatible with the Convention rights of any individual”). 9.4.2 The HRA s.6(2) defences: exceptions of legislative incompatibility. HRA s.6(2) {9.4.1}; RR v Secretary of State for Work and Pensions [2019] UKSC 52 [2019] 1 WLR 6430 at §29 (Lady Hale: “The obligation in section 6(1), not to act in a way which is incompatible with a Convention right, is subject to the exception in section 6(2). But this only applies to acts which are required by primary legislation”). 9.4.3 ‘Public authority’ under the HRA: principles. R (Cornerstone (North East) Adoption and Fostering Service Ltd) v Office for Standards in Education, Children’s Services and Skills [2020] EWHC 1679 (Admin) at §§240-243 (discussing the relevant principles from the case law), especially TA v Chapter of Worcester Cathedral [2016] EWHC 1117 (Admin) at §59 (Coulson J: “the court has to ask three questions: (a) Is the body a ‘core’ public authority? (b) Is the body a ‘hybrid’ public authority? (c) Is the particular act in question private in nature?”), §64 (“the court should consider in determining whether or not the [body is] a ‘hybrid’ public authority …: (a) Is the body performing a task which a ‘core’ public authority is under a duty to perform, and which has been delegated to it? (b) To what extent is the function of a governmental nature and/or a part of public administration? (c) Does the body have any special statutory powers in relation to the function in question? (d) To what extent is the body supported or subsidised from public funds? (e) To what extent is the body democratically accountable? (f) Would the allegations, if made against the United Kingdom, render it in breach of its international law obligations?”). 9.4.4 ‘Public authority’ under the HRA: illustrations. Foreign and Commonwealth Office v Warsama [2020] EWCA Civ 142 [2020] 3 WLR 351 (members of panel conducting nonstatutory inquiry a “public authority”), §110 (“only government could initiate a comprehensive inquiry. That was a core governmental function. [The] team were performing a function on behalf of the Government in the public interest”), §111 (“the Inquiry was performing a public and not private function”); R (Cornerstone (North East) Adoption and Fostering Service Ltd) v Office for Standards in Education, Children’s Services and Skills [2020] EWHC 1679 (Admin) at §244 (independent fostering agency a hybrid public authority for the purposes of the HRA); Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank 143

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[2003] UKHL 37 [2004] 1 AC 546 (PCC pursuing statutory chancel repair costs not a public authority) at §7 (characteristics of “core public authorities”), §§11-12 (factors as to whether a “hybrid public authority”); R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 [2010] 1 WLR 363 (registered social landlord a hybrid (functional) public authority, and termination of tenancy not a private act), §35 (Elias LJ, identifying the relevant principles from the then leading authorities); YL v Birmingham City Council [2007] UKHL 27 [2008] 1 AC 95 (private care home not exercising a public function in relation to local authority-placed residents); A v Head Teacher and Governors of Lord Grey School [2004] EWCA Civ 382 [2004] QB 1231 (headteacher and governors treated as HRA public authorities) (HL is [2006] UKHL 14 [2006] 2 AC 363); Marcic v Thames Water Utilities Ltd [2002] QB 929 (High Court) (statutory sewerage undertaker treated as public authority for HRA) (HL is [2003] UKHL 66 [2004] 2 AC 42); R (D) v SSHD [2006] EWHC 980 (Admin) at §59 (independent contractor running immigration detention centre a functional public authority); RSPCA v Attorney-General [2002] 1 WLR 448 at §37 (RSPCA not an HRA public authority); R (A) v Lord Saville of Newdigate [2001] EWCA Civ 2048 [2002] 1 WLR 1249 at §6 (Bloody Sunday Tribunal an HRA public authority); R (A) v Partnerships in Care Ltd [2002] EWHC 529 (Admin) [2002] 1 WLR 2610 (managers of private psychiatric hospital an HRA public authority); R (West) v Lloyds of London [2004] EWCA Civ 506 [2004] 3 All ER 251 at §39 (Lloyds not an HRA public authority); Cameron v Network Rail Infrastructure Ltd [2006] EWHC 1133 (QB) [2007] 1 WLR 163 (NRIL not an HRA public authority for running railway nor for safety function). 9.4.5 The court as an HRA public authority. Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §152 (Lord Kerr: “s.6 of HRA … requires any public authority, including a court, not to act in a way which is a contravention of a Convention right”); RR v Secretary of State for Work and Pensions [2019] UKSC 52 [2019] 1 WLR 6430 at §32 (never proper for a court to act in HRA-incompatible way, citing Attorney General’s Reference No 2 of 2001 [2003] UKHL 68 [2004] 2 AC 72 at §30 per Lord Bingham); Re B (Secure Accommodation Order) [2019] EWCA Civ 2025 [2020] Fam 221 at §97 (“the court’s duty under s.6”), §116; R (National Council for Civil Liberties) v SSHD [2019] EWHC 2057 (Admin) [2020] 1 WLR 243 at §68 (s.6(3)(a) “makes clear” that public authority “includes a court or tribunal”); JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313 at §122 (referring to “the court’s duty under section 6(1)” to treat HRA-incompatible provision of subordinate legislation has having no effect); McDonald v McDonald [2016] UKSC 28 [2017] AC 273 at §38 (“the domestic court would be regarded by the Strasbourg court as part of the state, and therefore obliged to respect individual rights enshrined in the Convention”), §43 (“a court … is a public authority for the purposes of the 1998 Act (and is regarded as part of the state by the Strasbourg court)”); Birmingham City Council v Afsar [2019] EWHC 3217 (QB) at §23 (Warby J: “Unless compelled by statute, I must not act incompatibly with the Convention rights”). 9.4.6 Proceedings alleging s.6 breach: HRA s.7. See HRA s.7 (“Proceedings. (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may – (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. (2) In subsection (1)(a) ‘appropriate court or tribunal’ means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding. (3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act. … (5) Proceedings under subsection (1)(a) must be brought before the end of – (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. (6) In subsection (1)(b) ‘legal proceedings’ includes – (a) proceedings brought by or at the instigation of a public authority; and (b) an appeal against the decision of a court or tribunal. (7) For the purposes of this section, a person is a 144

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victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. (8) Nothing in this Act creates a criminal offence …”), s.8(1) (“Judicial remedies. (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate”), s.9(1)-(2) (“Judicial acts. (1) Proceedings under section 7(1)(a) in respect of a judicial act may be brought only – (a) by exercising a right of appeal; (b) on an application … for judicial review; or (c) in such other forum as may be prescribed by rules. (2) That does not affect any rule of law which prevents a court from being the subject of judicial review”), s.11(b) (safeguard for existing remedies {38.4.3}); R (A) v Director of Establishments of Security Service [2009] UKSC 12 [2010] 2 AC 1 (s.7(2) allocation of HRA claims exclusively to Investigatory Powers Tribunal); Gilham v Ministry of Justice [2019] UKSC 44 [2019] 1 WLR 5905 at §27 (Lady Hale: “there is a remedy for breach of the Convention rights, by way of an action under section 7 of the Human Rights Act 1998, which can result in an award of damages, if this is necessary to afford just satisfaction for the wrong done”); R (Wilkinson) v Responsible Medical Officer Broadmoor Hospital [2001] EWCA Civ 1545 [2002] 1 WLR 419 at §61 (proceedings under s.7(1) not confined to judicial review). 9.4.7 Standing and proceedings alleging s.6 breach: the victim test (s.7). {38.4} (standing and HRA s.6: the ‘victim’ test). 9.4.8 Delay and proceedings under the HRA: the one-year rule (s.7(5)). See HRA s.7(5) {9.4.6}; O’Connor v Bar Standards Board [2017] UKSC 78 [2017] 1 WLR 4833 at §23 (HRA s.7(5)(a) applicable to “a continuing act of alleged incompatibility”), §30 (where “a single continuing act of alleged incompatibility … time runs from the date when the continuing act ceased”); AP v Tameside Metropolitan Borough Council [2017] EWHC 65 (QB) [2017] 1 WLR 2127 at §65 (King J: “It is for the court to determine what is ‘equitable in all the circumstances’. The discretion conferred on the court by the section is expressed in broad terms, and is a wide one”), §67 (“It is for the court to examine all the relevant factors in the circumstances of the case and then decide whether it is equitable to provide for a longer period. There is no predetermined list of relevant factors although proportionality will generally be taken into account. The weight to be given to any particular factor is a matter for the particular court having regard to the facts and circumstances of the particular case. There is no pre-ordained principle as to the weight to be given to any particular factor”); R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 at §109 (claim, insofar as well-founded, would have been out of time); Rabone v Pennine Care NHS Trust [2012] UKSC 2 [2012] 2 AC 72 at §75 (Lord Dyson, identifying the relevant principles in applying s.7(5)); R (Cockburn) v Secretary of State for Health [2011] EWHC 2095 (Admin) at §36 (one-off act with continuing consequences, so out of time), §37 (equitable to extend time because raising a matter of public importance, likely impact on other pension schemes and absence of hardship or detriment caused by the delay); Dunn v Parole Board [2008] EWCA Civ 374 [2009] 1 WLR 728 (discussing the approach to s.7(5)); A v Essex County Council [2010] UKSC 33 [2011] 1 AC 280 at §§167-169 (upholding judge’s refusal to extend time); Cameron v Network Rail Infrastructure Ltd [2006] EWHC 1133 (QB) [2007] 1 WLR 163 at §47 (not equitable to extend time, the burden being on the claimant); Weir v Secretary of State for Transport [2004] EWHC 2772 (Ch) [2005] UKHRR 154 (time extended having regard to nature of and reason for delay and lack of prejudice); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWHC 1743 (Admin) (permission to extend time to include damages claim) at §38 (considering reasons for delay and prejudice) (HL is [2005] UKHL 57 [2006] 1 AC 529). 9.4.9 HRA and remedies: general. HRA s.8(1) {9.5.1} (any just and appropriate available remedy); s.7(8) (no criminal offence created). 9.4.10 HRA and remedies: freedom of expression. HRA s.12 (“Freedom of expression. (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (2) If the person 145

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against whom the application for relief is made (‘the respondent’) is neither present nor represented, no such relief is to be granted unless the court is satisfied – (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to – (a) the extent to which – (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code. (5) In this section – ‘court’ includes a tribunal; and ‘relief’ includes any remedy or order (other than in criminal proceedings)”), discussed in Taveta Investments Ltd v Financial Reporting Council [2018] EWHC 1662 (Admin) at §92; A v British Broadcasting Corporation [2014] UKSC 25 [2015] AC 588 at §63; PJS v News Group Newspapers [2016] UKSC 26 [2016] AC 1081 at §§19-20.

9.5 HRA just satisfaction. The victim of an HRA violation can claim the remedy of monetary ‘just satisfaction’. 9.5.1 ‘Just satisfaction’ damages: HRA s.8. See HRA s.8(1)-(4) (“Judicial remedies. (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including – (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining – (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention”). 9.5.2 Procedural rigour: HRA damages claims. {19.2.11} 9.5.3 Approach to HRA just satisfaction/damages. Foreign and Commonwealth Office v Warsama [2020] EWCA Civ 142 [2020] 3 WLR 351 at §§94, 100 (“loss of chance basis” of damages “not open” to claimants under HRA s.8); D v Commissioner of Police of the Metropolis [2018] UKSC 11 [2019] AC 196 at §65 (just satisfaction for Art 3 violation by ineffective investigation geared principally to upholding of relevant human rights standards); R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 [2015] AC 1344 at §39 (where Art 5 violated by failure to provide rehabilitative courses in prison, but detention lawful, just satisfaction as “damages for legitimate frustration and anxiety”); R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115 at §114 (surveying the approach to just satisfaction in Art 5(4) cases); R (Sturnham) v Parole Board [2013] UKSC 23 [2013] 2 AC 254 at §§13, 26-39 (approach to HRA damages); Rabone v Pennine Care NHS Trust [2012] UKSC 2 [2012] 2 AC 72 at §82 (Lord Dyson, discussing the approach to just satisfaction); R (Wilkinson) v Commissioners of Inland Revenue [2005] UKHL 30 [2005] 1 WLR 1718 at §28 (no just satisfaction award because, if discrimination removed, claimant would have been no better off); R (Greenfield) v SSHD [2005] UKHL 14 [2005] 1 WLR 673 at §3 (primary aim of ECHR to protect against and prevent human rights violations), §13 (just satisfaction may be appropriate if sufficient causal connection between the violation and an otherwise favourable outcome); Watkins v SSHD [2006] UKHL 17 [2006] 2 AC 395 at §64 (exemplary damages no part of the ECtHR jurisprudence), §26 (but could arise as compensation for non-pecuniary loss, rather than to punish); Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406 [2004] QB 1124 at §§53, 56-57, 63. 146

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9.5.4 Whether judgment/declaration constituting just satisfaction. R (Greenfield) v SSHD [2005] UKHL 14 [2005] 1 WLR 673 at §8 (finding of violation generally sufficing in Art 6 cases); Alleyne v Attorney General of Trinidad and Tobago [2015] UKPC 3 at §39 (in a constitutional motion, as under the ECHR: “Sometimes the court may judge a declaration to be sufficient … But often the court will find that more than words are required to redress what has happened”); R (H) v SSHD [2003] UKHL 59 [2004] 2 AC 253 at §30 (just satisfaction not called for because “(a) the violation has been publicly acknowledged and the appellant’s right thereby vindicated, (b) the law has been amended in a way which should prevent similar violations in future, and (c) the appellant has not been the victim of unlawful detention, which article 5 is intended to avoid”); Shahid v Scottish Ministers [2015] UKSC 58 [2016] AC 429 at §89 (although segregation violating Art 8, lack of prejudice and suffering justifying sole relief being declaratory); Winspear v Sunderland NHS Foundation Trust [2015] EWHC 3250 (QB) [2016] QB 691 at §64 (declaration “sufficient satisfaction for the claimant”). 9.5.5 HRA just satisfaction damages: further cases. Mott v Environment Agency [2019] EWHC 1892 (Admin) at §§5, 31 (applying the ‘restitutio in integrum’ approach to award £187,000 plus interest for A1P1 breach in restricting salmon fishing rights); R (Bruton) v Governor of Swaleside Prison [2017] EWHC 704 (Admin) [2017] ACD 69 at §61 (necessary and appropriate to award just satisfaction for infringement of Art 8 rights in repeatedly interfering with legally privileged correspondence); R (Infinis Plc) v Gas and Electricity Markets Authority [2011] EWHC 1873 (Admin) at §§106-107 (applying the principle of ‘restitutio in integrum’ to award over £93,000 in respect of statutory entitlement wrongly denied); R (DL) v Newham LBC (No 2) [2011] EWHC 1890 (Admin) [2012] 1 FLR 1 (just satisfaction refused, despite procedural breach of Art 8, because a fair process would have yielded the same outcome); R (Faulkner) v Secretary of State for Justice [2011] EWCA Civ 349 [2011] HRLR 489 (just satisfaction for Art 5 violation including loss of the opportunity to be released earlier); R (AM) v Chief Constable of West Midlands Police [2010] EWHC 1228 (Admin) (£500 just satisfaction under Art 8 where unlawful caution for sexual offence); R (Degainis) v Secretary of State for Justice [2010] EWHC 137 (Admin) (monetary award not necessary under Art 5(5), where breach of Art 5(4) acknowledged and apology made); R (B) v DPP [2009] EWHC 106 (Admin) [2009] 1 WLR 2072 at §71 (£8,000 justification under Art 3 for unlawful decision to discontinue assault prosecution); R (Johnson) v SSHD [2007] EWCA Civ 427 [2007] 1 WLR 1990 (HRA s.7 damages securing compensation guaranteed by Art 5(5)); R (Bernard) v Enfield LBC [2002] EWHC 2282 (Admin) [2003] UKHRR 148 (£10,000 just satisfaction for 20 months of unsuitable accommodation); R (KB) v Mental Health Review Tribunal [2003] EWHC 193 (Admin) [2004] QB 936 at §§47, 53 (compensatory approach using tort parallel); Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39 [2003] 1 WLR 1763 at §79 (Lord Millett, referring to the absence of principles in the Strasbourg jurisprudence), §§81-84 (wrong to award HRA damages where no damage to compensate); In re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] Fam 377 at §§118-128 (wrong in principle to treat DOI as triggering damages); In re Medicaments and Related Classes of Goods (No 4) [2001] EWCA Civ 1217 [2002] 1 WLR 269 (refusing costs reimbursement as HRA damages, where proceedings had violated Art 6); R (A) v SSHD [2002] EWHC 1618 (Admin) [2003] 1 WLR 330 at §74 (Art 5(4) liability for damages not that of the Secretary of State, but the hospital authority); R (Wilkinson) v Commissioners of Inland Revenue [2003] EWCA Civ 814 [2003] 1 WLR 2683 at §63 (HRA damages inappropriate where anomalous and discriminatory tax concession provided to comparators now abolished); R (W) v Doncaster Metropolitan Borough Council [2004] EWCA Civ 378 [2004] LGR 743 at §65 (erroneous perception “that damages under the Human Rights Act 1998 might be of a lower order than those for a tortious award”); Re P [2007] EWCA Civ 2 (just satisfaction not appropriate for procedural Art 8 violation regarding care plan). 9.5.6 HRA damages and judicial acts: s.9(3). See HRA s.9(3)-(5) (“(3) In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention. (4) An award of damages permitted by subsection (3) is to be made against the Crown; but no 147

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award may be made unless the appropriate person, if not a party to the proceedings, is joined. (5) In this section – ‘appropriate person’ means the Minister responsible for the court concerned, or a person or government department nominated by him; ‘court’ includes a tribunal; ‘judge’ includes a member of a tribunal, a justice of the peace … and a clerk or other officer entitled to exercise the jurisdiction of a court; ‘judicial act’ means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge; and ‘rules’ has the same meaning as in section 7(9)”); Mazhar v Lord Chancellor [2019] EWCA Civ 1558 [2020] 2 WLR 541 at §§64, 67 (s.9(3) permitting HRA damages claim for Art 5 violation by good faith judicial act, available by reason of s.9(1)(c) by originating action in the High Court against the Lord Chancellor, even where the impugned judicial act was itself in the High Court); R (Moris) v Westminster Magistrates’ Court [2018] EWHC 3954 (Admin) at §4 (mandatory statutory requirement of joining Lord Chancellor as a party); LL v Lord Chancellor [2017] EWCA Civ 237 [2017] 4 WLR 162 at §§104, 108, 114 (damages for errors made by a High Court judge, constituting gross and obvious procedural irregularity, in the context of detention for contempt of court); Webster v Lord Chancellor [2015] EWCA Civ 742 [2016] QB 676.

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P10 Candour & cooperation. The Court expects, from all parties, fully cooperative behaviour between themselves and with the Court, including candid disclosure. 10.1 Judicial review as a cooperative enterprise 10.2 ADR/mediation and judicial review 10.3 Claimant’s duty of candour 10.4 Defendant/interested party’s duty of candour

10.1 Judicial review as a cooperative enterprise.24 The supervisory jurisdiction works as a relationship of mutual respect and cooperation, including between the Court and the defendant public authority. Mutual respect is linked to the constitutional principle of the separation of powers. The respect and cooperation underpinning judicial review is illustrated by judicial review remedies, which can involve the defendant being relied on to act, without the need for coercive remedies, in accordance with: (1) quashing with remittal (for reconsideration); (2) declarations (clarificatory orders); and (3) rulings embodied in a judgment (no formal order being necessary). Judges have high expectations of the behaviour of judicial review parties and their representatives, and will expect cooperation with the Court, with each other, and with the process. 10.1.1 The ‘duty of candour and cooperation’. R (TP) v Secretary of State for Work and Pensions [2020] EWCA Civ 37 at §136 (Sir Terence Etherton MR and Singh LJ, referring to “the duty of candour and cooperation with the court, which falls upon public authorities in judicial review proceedings”); R (Terra Services Ltd) v National Crime Agency [2019] EWHC 1933 (Admin) at §§9, 14 (“the duty of candour and cooperation with the court”); R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §105 (“the duty of candour and cooperation”); Bahamas Hotel Maintenance & Allied Workers v Bahamas Hotel Catering & Allied Workers [2011] UKPC 4 at §23 (Lord Walker: “Judicial review proceedings are … meant to be conducted with cooperation and candour”) R (Gillan) v Commissioner of Police of the Metropolis [2004] EWCA Civ 1067 [2005] QB 388 (CA) at §54 (“the general obligation on parties conducting judicial review proceedings to do so openly”); Administrative Court: Judicial Review Guide (2020 edition) at §6.1.2 (“The Court expects the parties to liaise with each other and the ACO to ensure that the claim is ready for determination by the Court. An open dialogue between the parties and the staff of the Administrative Court Office is essential to the smooth running of any case”). 10.1.2 Duty of candour owed by all parties. Administrative Court: Judicial Review Guide (2020 edition) at §6.4 (duty of candour owed by all parties), §14.1 (“There is a special duty which applies to parties to judicial review known as the ‘duty of candour’ which requires the parties to ensure that all relevant information and facts are put before the Court. This means that parties must disclose any relevant information or material fact which either supports or undermines their case”), §14.1.6 (“The duty of candour is a continuing duty on all parties”). 10.1.3 Parties’ duty to cooperate with each other and the Court. Administrative Court: Judicial Review Guide (2020 edition) at §6.1.2 {10.1.1}, §12.2.2 (“the parties have a duty to ensure that they maintain effective, constructive, and regular communication with each other and the ACO”), §12.2.5 (“If the parties are able to agree the form of any case management order and/or interim relief, they should file an agreed draft order (i.e. a draft consent order), which will be subject to the Court’s approval. A fee is payable when submitting a draft

24The

equivalent section in a previous edition was relied on in Bahamas Hotel MAW v Bahamas Hotel CAW [2011] UKPC 4 at §23 (Lord Walker).

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consent order and the reasons for requesting the order should be included in an accompanying application notice (N244 or PF244). A draft order (even if is agreed by the parties) does not have the status of an order until it has been approved by the Court”), §12.2.7 (“If the parties are aware that a case is likely to settle without the further involvement of the Court they should inform the ACO as soon as possible”), §12.7.6 (agreed case-management order: application by consent); {20.1.5} (cooperation and interim relief). 10.1.4 Judicial review as ‘a common enterprise’. R (Terra Services Ltd) v National Crime Agency [2019] EWHC 1933 (Admin) at §15 (Singh LJ and Carr J: “The underlying principle is that public authorities are not engaged in ordinary litigation trying to defend their own private interests. Rather, they are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) [2018] ACD 91 at §20 (Singh LJ, describing judicial review as “a common enterprise with the court to fulfil the public interest in upholding the rule of law”), §22 (public authorities “are involved in the provision of fair and just public administration and must present their cases dispassionately and in the public interest”); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §45 (describing “the duty of cooperation which the parties ow[e] to each other and to the court”); R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §105 (Lady Hale: “I may be (like Nellie) a cockeyed optimist, but I believe that our Government does, on the whole, try to act within the law (there was a time when every senior civil servant carried a copy of guidance entitled The Judge Over Your Shoulder); that law now requires the Government to respect human rights, and so it must try to do so. There are occasions when they get it wrong, and we must say so if they do”); R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941, 945c (Sir John Donaldson MR, describing judicial review as a “relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration”), applied in Graham v Police Service Commission [2011] UKPC 46 at §18; M v Home Office [1992] 1 QB 270 (CA), 314F-315A (Nolan LJ, referring to “the crucial need … for mutual respect between the judges and the executive”: “judgments and orders of the courts are meaningless without the willingness and ability of the executive to enforce them”; “the proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the court as to what its lawful province is”); Fothergill v Monarch Airlines Ltd [1981] AC 251, 279G (Lord Diplock: “when it is engaged in reviewing the legality of administrative action, [the court] is doing so as mediator between the state in the exercise of its legislative power and the private citizen for whom the law made by Parliament constitutes a rule binding upon him and enforceable by the executive power of the state”); R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §89 (Lord Phillips: “The administration of justice and upholding of the rule of law involves a partnership between Parliament and the judges”); R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935 [2002] 1 WLR 803 at §3 (“the courts should deter the parties from adopting an unnecessarily confrontational approach to the litigation”); {13.1.4} (Parliament, the executive and the Courts: mutual respect). 10.1.5 Cooperation: duty to try and resolve the dispute. Administrative Court: Judicial Review Guide (2020 edition) at §12.2.1 (“The parties must make efforts to settle the claim without requiring the intervention of the Court. This is a continuing duty and, whilst it is preferable to settle the claim before it is started, the parties must continue to evaluate the strength of their case throughout proceedings, especially after any indication as to the strength of the case from the Court (such as after the refusal or grant of permission to apply for judicial review). The parties should consider using alternative dispute resolution (for example, mediation) to explore settlement of the case, or at least to narrow the issues in the case”). 10.1.6 Public authorities needing good legal advice. R v Somerset County Council, ex p Fewings [1995] 1 All ER 513, 523c-d (Laws J: “In taking their decisions on behalf of the local community, members of local authorities are entitled to, and should, receive accurate advice from the council’s lawyers as to the extent of their powers”); R v Secretary of State for 150

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Education, ex p Prior [1994] ELR 231, 251A-B (Brooke J: “this case shows very vividly how important it is that the governors of a grant-maintained school should have access to good legal advice before they set in motion dismissal procedures”). 10.1.7 Defendant should not act to undermine effectiveness of judicial review. R (Linse) v Chief Constable of North Wales [2020] EWHC 1288 (Admin) [2020] 1 WLR 3540 at §§36-37 (defendant should not have acted to “defeat the claim”, by disposing of seized vehicle where court “order … made quite clear that the court was seized of the matter and that there was a hearing to be listed”); R (Somerset County Council) v Secretary of State for Education [2020] EWHC 1675 (Admin) at §40 (Fraser J, describing as “somewhat unseemly” the defendant’s action “during the pre-action protocol period” which “also potentially undermines the purpose of the judicial review pre-action protocol itself”); Gouriet v Union of Post Office Workers [1978] AC 435, 507D (citing Deare v Attorney-General (1835) 1 Y & C Ex 197, 208 per Abinger CB: “it has been the practice, which I hope never will be discontinued, for the officers of the Crown to throw no difficulty in the way of any proceeding for the purpose of bringing matters before a court of justice, where any real point of difficulty that requires judicial decision has occurred”); R v Reading Justices, ex p South West Meat Ltd (1992) 4 Admin LR 401 (dismissal of a late and “cynical” application that judicial review proceedings should continue as if begun by claim form); R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin) [2012] 1 WLR 838 at §25 (inimical to the rule of law to curtail public funding in order to avoid unwelcome judicial review judgments); R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339 at §97 (Beatson LJ, criticising defendant’s holding back of supplementary letters, as being “not consistent with the overriding objective”). 10.1.8 Cooperation: defendant facilitating judicial review. R (Tesco Stores Ltd) v Birmingham Magistrates’ Court [2020] EWHC 799 (Admin) [2020] 2 Cr App R 14 at §35 (magistrates stay to allow judicial review challenge to preliminary ruling); In re Wilson [1985] AC 750, 755A-B (magistrates acting to “enable” judicial review to be sought); B v Chief Constable of Northern Ireland [2015] EWHC 3691 (Admin) [2016] ACD 30 at §6 (defendant “agreed to delay the exercise of its powers … until this court has considered the issue”); R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42 (magistrates staying criminal proceedings for judicial review on extradition abuse); Panday v Virgil [2008] UKPC 24 [2008] 1 AC 1386 at §§33-34 (abuse of process normally to be decided by criminal court, not by adjourning for judicial review); EN (Serbia) v SSHD [2009] EWCA Civ 630 [2010] QB 633 at §87 (tribunal should consider adjourning for judicial review if prospect of holding statutory instrument to be unlawful); R (Mahfouz) v General Medical Council [2004] EWCA Civ 233 at §40 (“it was important that the committee should not impede [the claimant’s] undoubted right to test their decision before the High Court”), §41 (unfair of GMC’s professional conduct committee not to adjourn for a short period for application to the High Court for judicial review and a stay based on apparent bias through knowledge of prejudicial material); R (London Borough of Hounslow) v School Admission Appeals Panel for the London Borough of Hounslow [2002] EWCA Civ 900 [2002] 1 WLR 3147 at §51 (wrong in principle here for appeals panel to adjourn for judicial review); {20.1.6} (interim relief: undertakings in lieu of court order); {20.1.25} (no interim relief: dangers of deciding to press ahead); {11.1.11} (cooperation: avoiding problem of binding domestic HRA precedent); {10.4.9} (defendant’s candour: beyond the pleaded case). 10.1.9 Procedural rigour: professional responsibilities and hopeless claims/defences. {3.1} (procedural rigour); Nazeer v Solicitors Regulation Authority [2019] EWHC 37 (Admin) at §9 (Lavender J: “the process of this court is open to abuse in immigration cases if applications for judicial review are made which have no merit, but which are brought solely for the purpose of delaying the removal of an individual from the United Kingdom. The courts have repeatedly warned solicitors of their responsibilities in this regard”), referring to Madan v SSHD [2007] EWCA Civ 770 at §8 (“professional misconduct to make an unjustified application with a view to postponing the implementation of a previous decision”); Awuku v SSHD [2012] EWHC 3690 (Admin) [2013] ACD 26 at §4 (Sir John Thomas P: “it has always been the professional obligation of solicitors and counsel, when renewing applications or 151

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making applications on an ex parte basis, to satisfy themselves that the claim being advanced is one that they can properly make. This is particularly important and the onus on counsel and solicitors is high”); R (N) v North Tyneside Borough Council [2010] EWCA Civ 135 [2010] ELR 312 (defendant conceding, for the first time at the hearing in the CA, that decision unlawful) at §18 (Sedley LJ: “Counsel have a duty not only to their clients but to the court (and, I would add, to the other party) to make a professional appraisal of their case and to advise accordingly. It is not acceptable for a party to come to court when it knows that it has no legal leg to stand on in the hope that something may turn up”); R v Minister for Roads and Traffic, ex p McCreery 15 September 1994 unreported (Minister should consent to quashing of order, in the light of a related decision of CA); {18.1.18} (costs against courts/tribunals: magistrates; including where unreasonable refusal to sign consent orders); Land Securities Plc v Fladgate Fielder [2009] EWCA Civ 1402 [2010] Ch 467 (tort of abuse of process not extending to pursuit of judicial review), §112 (claimant with permission to pursue arguable judicial review claim should not be deterred by threat of claim for economic loss). 10.1.10 Procedural rigour: preparation of the case. R (Adriano) v Surrey County Council [2002] EWHC 2471 (Admin) [2003] Env LR 559 at §51 (criticising lack of “member involvement in the preparation of the defendant’s response to this judicial review”, “leading counsel was instructed by Officers to submit that the Local Waste Plan should be construed to precisely the opposite effect” to what “councillors had made … perfectly clear” was their wish when adopting the plan). 10.1.11 Procedural rigour: providing documents and materials. R (Caroopen) v SSHD [2016] EWCA Civ 1307 [2017] 1 WLR 2339 at §97 (Beatson LJ, criticising defendant’s holding back of supplementary letters, as being “not consistent with the overriding objective”; also criticising acknowledgments of service which are “unparticularised and [have] an almost template and generic feel” and which are “not of much assistance”). 10.1.12 Procedural rigour: cooperation and candour in drafting witness statements. R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) [2018] ACD 91 at §22 (citing Downes [2006] NIQB 77 per Girvan J at §31: witness statements “of all parties should be drafted in clear and unambiguous language” which must not “deliberately or unintentionally obscure areas of central relevance” and “not contain any ambiguity or [be] economical with the truth of the situation. There can be no place for … ‘spin’”). 10.1.13 Special responsibility of lawyers drafting reasons. {64.3.8} (drafting reasons: proper limits of the lawyer’s function). 10.1.14 Procedural rigour: high standards and ‘self-policing’. R (Ismail) v SSHD [2019] EWHC 3192 (Admin) [2020] ACD 18 at §6 (Margaret Obi: “disclosure in judicial review proceedings is not dependent on requests being made. … Parties must disclose any information or material facts which either support or undermine their case to assist the Court”), §8 (referring to “[t]he trust and confidence upon which the duty of candour depends”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1282 (Admin) at §14 (Singh LJ, explaining in the context of public interest immunity that in certain situations “some of the ‘policing mechanisms’ which would ordinarily be available are not”, which “means that there [is] a heightened responsibility on the part of the executive”). 10.1.15 Effective judicial review: providing reasons/materials and the ‘presumption of regularity’. R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168 at §127 (Hickinbottom LJ: “The right to judicial review must have substance. … [R]easons not only assist the courts in performing their supervisory function, they are often required if that function is not to be disarmed”); R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §52 (Lord Mance, declining to follow line of authority which had permitted the ‘presumption of regularity’ to be applied to uphold decisions without the Court being aware of the basis on which they had been reached, that approach being “capable of depriving judicial review of any real teeth. … Judicial review should be effective and 152

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able to address the decision under review on the same basis that the decision was taken”), considered in R (Belhaj) v DPP [2018] UKSC 33 [2019] AC 593 at §36; R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §187 (“an inseparable part or corollary of the [claimants’] right of access to the court entitles them to be given some information about the substance of the … decision”); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171G-H (albeit no duty to give reasons, FCC “acted with complete propriety” in giving them), 199D-E (“it very properly disclosed its reasons”); {42.1.3} (whether a presumption of regularity applies to decision-making); {64.1.7} (judicial review is disarmed absent reasons); {64.2.15} (reasons required to facilitate a challenge); {42.2.4} (inferences and lack of candour/reasons). 10.1.16 Remedy and cooperation/respect: defendant relied on to comply. R (Langton) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 597 (Admin) at §130 (no “need for declaratory relief” where defendant “has indicated that it is ready to take any action required by the judgment”); R (National Council for Civil Liberties) v SSHD [2018] EWHC 975 (Admin) [2019] QB 481 at §52 (“There is a constitutional convention that the executive will comply with a declaration made by the court even though it does not have coercive effect”), §51 (declaration is binding); R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28 [2015] PTSR 909 (making a mandatory order) at §31 (Lord Carnwath: “In normal circumstances, where a responsible public authority is in admitted breach of a legal obligation, but is willing to take appropriate steps to comply, the court may think it right to accept a suitable undertaking, rather than impose a mandatory order. However, [counsel] candidly accepts that this course is not open to her, given the restrictions imposed on Government business during the current election period”); {2.6.1} (quash and remit); {24.2} (the declaration); In re McFarland [2004] UKHL 17 [2004] 1 WLR 1289 at §7 (Lord Bingham: “Parliament and the executive must respect judicial decisions whether they approve of them or not, unless and until they are set aside”); R (JM) v Croydon LBC [2009] EWHC 2474 (Admin) [2010] 1 WLR 1658 at §12 (“it is to be expected that a public body would not deliberately flout an order of the court”); R v Secretary of State for Transport, ex p Factortame Ltd [1990] 2 AC 85, 150D (“A declaration of right made in proceedings against the Crown is invariably respected and no injunction is required”); M v Home Office [1994] 1 AC 377, 423A (“the Crown can be relied upon to cooperate fully with such declarations”); R v Licensing Authority established under Medicines Act 1968, ex p Smith Kline & French Laboratories Ltd (No 2) [1990] 1 QB 574, 596B (no need to consider final injunction, rather than a declaration); R v Hillingdon LBC, ex p Royco Homes Ltd [1974] QB 720, 732F (decision quashed and so falls to be reconsidered; mandamus adjourned “with liberty to apply in case it proves necessary hereafter to achieve the proper solution to this problem”); R v Rochdale Metropolitan Borough Council, ex p Schemet [1994] ELR 89, 109A-D (declaration, and terms of judgment, sufficient; no need for mandatory order); {24.4.26} (no order/judgment speaking for itself/declaratory judgment); {2.6.22} (court making observations, notwithstanding the outcome); {1.2.14} (the rule of law and coercive remedies). 10.1.17 Cooperation and case-management. CPR 1.4(2) (active case-management including “encouraging the parties to cooperate with each other in the conduct of the proceedings”). 10.1.18 Judicial review as last resort: delay/alternative remedy and cooperation. R (Archer) v HMRC [2019] EWCA Civ 1021 [2019] 1 WLR 6355 at §92 (Henderson LJ: “both sides are under a duty to act responsibly and to take all reasonable steps to ensure that judicial review proceedings are not prematurely pursued while other forms of dispute resolution are in progress”); {36.3.5} (judicial review as a last resort); {26.3.4} (extension of time: parties’ prior agreement ‘not to take a time point’ (‘shield letter’)). 10.1.19 Cooperation: costs where the claim has become academic. Administrative Court: Judicial Review Guide (2020 edition) at Annex 5 (ACO Costs Guidance April 2016) §§5-8 (how the parties should assist the court before sending submissions on costs): {18.5.3} (costs where claim has settled (or become academic): the practice). 153

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10.1.20 Praising cooperation between the parties. R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058 at §3 (Sir Terence Etherton MR, Dame Victoria Sharp P and Singh LJ, recording: “the co-operative and helpful way in which the case had been presented on all sides in order to ascertain the court’s early guidance as to the legal parameters and framework relating to [automated facial recognition technology] while it is still in its trial phase and before it is rolled out nationally”); Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455, 487E-F, 500B (CA expressing “indebtedness … for the cooperation which the court has received from all parties … by means of which alone it has been possible to deal with a complex and difficult case as swiftly”); R v SSHD, ex p Moon (1996) 8 Admin LR 477, 479H (parties cooperating so that permission granted as a formality and Court proceeding immediately to hear as hearing of the judicial review); West Glamorgan County Council v Rafferty [1987] 1 WLR 457, 471B (“Much was agreed between the parties. The [authority] have contested the issues with complete candour and have wasted no time whatever on peripheral matters”). 10.1.21 Cooperation between the parties: statement of agreed facts. {17.1.15} 10.1.22 Procedural rigour: candour as to contact with Court/documents lodged at Court. R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2010] EWCA Civ 158 [2011] QB 218 at §6 (“It is an elementary rule of the administration of justice that none of the parties to civil litigation may communicate with the court without simultaneously alerting the other parties to that fact”); R v SSHD, ex p Shahina Begum [1995] COD 176 (criticising the claimant’s advisers’ failure to put the defendant’s letter to the judge, and their refusal to provide it with a copy of the bundle lodged with the Administrative Court Office). 10.1.23 Parties’ duty of ongoing evaluation. Administrative Court: Judicial Review Guide (2020 edition) at §12.2.1 (“the parties must continue to evaluate the strength of their case throughout proceedings, especially after any indication as to the strength of the case from the Court (such as after the refusal or grant of permission to apply for judicial review)”); Keep Bourne End Green v Buckinghamshire Council [2020] EWHC 1984 (Admin) at §40 (Holgate J: “the parties on both sides are under a duty to keep the merits of the grounds of challenge under review as a claim progresses”); {19.3.19} (claimant’s duty to re-evaluate after AOS); {22.1.8} (procedural rigour: claimant’s duty of re-evaluation if circumstances change); {22.1.4} (procedural rigour: defendant’s ongoing duty of re-evaluation). 10.1.24 Procedural rigour: keeping the court informed. {3.1.17} 10.1.25 Cooperation: position where Court inviting defendant to attend oral permission hearing. Levey {21.1.21}. 10.1.26 Cooperation: claimant’s duty to allow appropriate assessment. Croydon LBC v Y [2016] EWCA Civ 398 [2016] 1 WLR 2895 at §22 (strike out of age-assessment judicial review proceedings appropriate if claimant refused to cooperate with expert assessment legitimately required by defendant). 10.1.27 Cooperation: specific topics. {11.1.11} (avoiding problem of binding domestic HRA precedent) {11.1.23} (bundles of authorities) {17.1.15} (statement of agreed facts) {19.3.17} (AOS of court defendant in challenge to case stated refusal) {20.1.5} (interim relief) {21.1.5} (permission unopposed by defendant/interested party) {22.1.37} (core bundle) {22.4.28} (attempting to agree an order) {26.3.4} (parties’ prior agreement ‘not to take a time point’ (‘shield letter’)) {38.4.4} (HRA victim test problem solved by cooperation)

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10.2 ADR/mediation and judicial review. Alternative dispute resolution (ADR) and mediation are said to have an important role in public law. The Courts encourage recourse to ADR in appropriate cases. However, compromise may be difficult: the nature of public authority functions and responsibilities can mean a position comes to be maintained, unless and until a Court rules against its lawfulness. 10.2.1 ADR/mediation and active case-management. CPR 1.4 (active case management including “encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure” and “helping the parties to settle the whole or part of the case”). 10.2.2 Cooperation: duty to try and resolve the dispute. {10.1.5} 10.2.3 ADR/mediation: Judicial review Pre-Action Protocol. Judicial Review Pre-Action Protocol §9 (“The courts take the view that litigation should be a last resort. The parties should consider whether some form of alternative dispute resolution (‘ADR’) or complaints procedure would be more suitable than litigation, and if so, endeavour to agree which to adopt. Both the claimant and defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered. Parties are warned that if the protocol is not followed (including this paragraph) then the court must have regard to such conduct when determining costs. However, parties should also note that a claim for judicial review should comply with the time limits set out in the Introduction above. Exploring ADR may not excuse failure to comply with the time limits. If it is appropriate to issue a claim to ensure compliance with a time limit, but the parties agree there should be a stay of proceedings to explore settlement or narrowing the issues in dispute, a joint application for appropriate directions can be made to the court”), §10 (“[S]ummarised below are some of the options for resolving disputes without litigation which may be appropriate, depending on the circumstances: Discussion and negotiation; Using relevant public authority complaints or review procedures; Ombudsmen …; Mediation – a form of facilitated negotiation assisted by an independent neutral party”), §12 (“If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate in ADR or refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs”). 10.2.4 Judicial review as a remedy of last resort. {36.3.5} (judicial review as a last resort). 10.2.5 Alternative remedy. {P36} 10.2.6 ADR/mediation and judicial review: guidance. R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935 [2002] 1 WLR 803 (closure of a residential home) at §1 (Lord Woolf CJ: “even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible” and “the contribution alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves time, expense and stress”), §2 (“The courts should … make appropriate use of their ample powers under the CPR to ensure that the parties try to resolve the dispute with the minimum involvement of the courts”), §3 (“the court may have to hold, on its own initiative, an inter partes hearing at which the parties can explain what steps they have taken to resolve the dispute without the involvement of the courts. In particular the parties should be asked why a complaints procedure or some other form of ADR has not been used or adapted to resolve or reduce the issues which are in dispute”); Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 [2004] 1 WLR 3002 at §11 (Dyson LJ: “All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR. But … the court’s role is to encourage, not to compel”), §9 (“to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court”), §§32-33 (describing a form 155

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of order requiring the parties to consider ADR and file a witness statement explaining why it was considered inappropriate). 10.2.7 ADR/mediation in judicial review: further cases. R (LXD) v Chief Constable of Merseyside Police [2019] EWHC 1685 (Admin) at §105 (Dingemans J: “this was a case where the parties should have undertaken a mediation. It would, at the least, have resolved what was in issue for the hearing. It would also have enabled the defendant to address the real and continuing fears of the … claimant”); Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at §10 (mediation successful in dispute between student and university); R (Lloyd) v Barking and Dagenham LBC (2001) 4 CCLR 27 at §14 (CA granting permission to appeal but expecting the parties’ “undertakings to engage in mediation availing themselves if they are requested of the Court’s ADR service with a view to compromising all of the outstanding issues or at least of reducing the differences between them so as to limit the eventual appeal to the true and essential areas of dispute”); R (Lloyd) v Dagenham LBC [2001] EWCA Civ 533 (2001) 4 CCLR 196 at §§12-13 (ADR having failed because mediation had begun from “entrenched positions”); R (Arca) v Cumbria County Council [2003] EWHC 232 (Admin) at §21 (urging the parties to enter into discussions and seek to avoid further litigation); Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 [2004] 1 WLR 3002 at §7 (describing Government pledge 23 March 2001 whereby “Government Departments and agencies” made “commitments” that ADR “will be considered and used in all suitable cases wherever the other party accepts it”) §§34-35 (no special rule when considering ADR and public bodies). 10.2.8 Costs and non-pursuit of ADR/mediation. {18.1.13} (costs and failure to explore alternative dispute resolution (ADR)).

10.3 Claimant’s duty of candour.25 Judicial review claimants are under an important, continuing duty to make full disclosure to the Court of material facts and known impediments to the claim (eg. alternative remedy, delay, adverse case law, statutory ouster, change of circumstances). In the old pre-CPR days, when permission (“leave”) for judicial review was a without notice (“ex parte”) application, the principal response to material non-disclosure was the setting aside of permission. With the pre-action protocol, and with permission as a stage at which defendants and interested parties have the right to file summary grounds of resistance, those parties are better protected. However, the claimant’s duty of candour remains and compliance is important. It has a special significance in urgent cases (eg if urgent interim relief is sought without notice), where matters are known only to the claimant, or where circumstances change. 10.3.1 Claimant’s duty of candour. R (Khan) v SSHD [2016] EWCA Civ 416 at §35 (Beatson LJ: “The duty to disclose all material facts known to a claimant in judicial review proceedings including those which are or appear to be adverse to his case prior to applying for permission is well established”), §36 (“the provision for a respondent to judicial review proceedings to file an acknowledgement of service and summary grounds does not justify a claimant taking a more relaxed view of the duty of candour”); Cocks v Thanet District Council [1983] 2 AC 286, 294G (need for “frank disclosure of all relevant facts”); R v Leeds City Council, ex p Hendry (1994) 6 Admin LR 439, 444D (“fundamental importance that applications for judicial review should be made with full disclosure of all material available”); R (F) v Head Teacher of Addington High School [2003] EWHC 228 (Admin) (wasted costs ordered against claimant’s solicitors where grounds not provided to defendant and defendant’s letter not drawn to attention of permission judge, and so misleading impression given as to defendant’s inaction); {21.1.20} (refusing permission because of claimant’s lack of candour). 10.3.2 Procedural rigour: claimant candour and urgent interim relief. R (Short) v Police Misconduct Tribunal [2020] EWHC 385 (Admin) [2020] ACD 47 at §118 (vital importance of 25The

equivalent paragraph in a previous edition was relied on in R (Khan) v SSHD [2008] EWHC 1367 (Admin) at §12 (Sedley LJ); Re A [2010] NIQB 25 at §20 (Treacy J).

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claimant’s duty of candour when seeking urgent interim relief), §113 (“wholly unacceptable” that pre-action correspondence not included in the papers for the Court); Administrative Court: Judicial Review Guide (2020 edition) at §14.1.2 (duty of candour “is particularly important where the other party has not had the opportunity to submit its own evidence or make representations (usually an urgent application …)”), §15.3.5 (“[where] a judge is being asked to make an order out of hours, usually without a hearing, and often without any representations from the defendant’s representatives and in a short time frame … the duty of candour (to disclose all material facts to the judge, even if they are not of assistance to the claimant’s case) is particularly important”); {20.1.10} (procedural rigour and interim relief: claimant’s duty of candour). 10.3.3 Procedural rigour: claimant candour and urgent immigration cases. R (SB (Afghanistan)) v SSHD [2018] EWCA Civ 215 [2018] 1 WLR 4457 at §57 (Lord Burnett CJ, Sales and Flaux LJJ: “The duty of candour is directed … to ensuring that matters unfavourable to the applicant are drawn to the attention of the judge” and “there is a strong imperative for those instructed late in the day to make no representations or factual assertions which do not have a proper foundation in the materials available to them”); R (MS) v SSHD [2010] EWHC 2400 (Admin) (vital importance of disclosure in immigration removal injunction cases, including promptly eliciting and supplying the immigration history); R (Madan) v SSHD [2007] EWCA Civ 770 [2007] 1 WLR 2891 at §17 (importance of candour where immigration removal challenged and injunction sought). 10.3.4 Claimant candour: duty of proactive explanation. R (Khan) v SSHD [2016] EWCA Civ 416 at §45 (claimant’s duty of candour “in some circumstances” will involve “more than to furnish the material document” but “to draw the significance of a document to the attention of the court” and so “ensure that the judge dealing with the application has the full picture”), §71 (“The duty is not to mislead the court which can occur by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact”); cf R v Durham County Council, ex p Huddleston [2000] Env LR D20 (adequate disclosure here, where defendant’s letter exhibited in claimant’s bundle); Administrative Court: Judicial Review Guide (2020 edition) at §14.1.4 (“Claimants in judicial review proceedings must ensure that the Court has the full picture. In some circumstances it may not be sufficient simply to provide the relevant documents, rather a specific explanation of a document or an inconsistency may need to be given, usually by witness statement made by the claimant”). 10.3.5 Continuing duty of claimant candour/duty to update the Court. Administrative Court: Judicial Review Guide (2020 edition) at §14.1.6 (“The duty of candour is a continuing duty on all parties”); Peerless Ltd v Gambling Regulatory Authority [2015] UKPC 29 at §21 (“The duty of candour in judicial review proceedings applies throughout the proceedings”); R (Khan) v SSHD [2016] EWCA Civ 416 at §48 (“the duty of candour is a continuing one. It includes a duty to reassess the viability and propriety of a challenge in the light of the respondent’s acknowledgment of service and summary grounds”); R (Tshikangu) v Newham LBC [2001] EWHC Admin 92 at §23 (claimant’s duty to inform court of “material change in circumstances” or if claimant “no longer needed judicial review”); R (MS) v SSHD [2010] EWHC 2400 (Admin) (immigration removal injunctions) at §13 (HHJ Waksman QC: “the duty of disclosure is a continuing one. Accordingly, if there are further documents which should be disclosed but which cannot be obtained by the time it is necessary to lodge the claim, they should still be obtained as soon as possible thereafter and immediately sent to the Court”); {4.5.4} (procedural rigour: matter becoming academic); {22.1.8} (procedural rigour: claimant’s duty of re-evaluation if circumstances change). 10.3.6 Permission-stage appeal: claimant duty of candour. {23.1.7} 10.3.7 Aspects of claimant candour. See these pre-CPR cases: R v SSHD, ex p Li Bin Shi [1995] COD 135 (duty to cite adverse authority); R v Cornwall County Council, ex p Huntington [1992] 3 All ER 566, 576f-g (duty to point out existence of ouster clause in claim form); R v Law Society, ex p Bratsky Lesopromyshlenny Complex [1995] COD 216 (duty to 157

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identify alternative remedy); R v Lloyd’s of London, ex p Briggs (1993) 5 Admin LR 698, 707D (duty to point out delay and give reason to extend time). 10.3.8 Setting aside permission for claimant non-disclosure. R (Khan) v SSHD [2008] EWHC 1367 (Admin) at §§12-13 (permission set aside for lack of candour and disclosure, in circumstances where no AOS served but judge granting permission had given liberty to apply; absent such conditionality of permission, and given CPR 54.13, Court would have treated as the substantive hearing and dismissed the claim for non-disclosure). Pre-CPR cases included: R v Bromley LBC, ex p Barker [2001] Env LR 1 (setting aside permission where insufficiently candid as to delay); R (Tshikangu) v Newham LBC [2001] EWHC Admin 92 (setting aside permission at the substantive hearing, because claimant had not informed court at permission stage that no longer needed judicial review); R v Bromley LBC, ex p Barker [2001] Env LR 1 (permission set aside, at substantive hearing); R v SSHD, ex p Ketowoglo The Times 6 April 1992 (witness statement misleading as to facts); R v General Medical Council, ex p Chadha 17 May 1996 unreported (inaccurate and misleading affidavit); R v Metropolitan Police Force Disciplinary Tribunal, ex p Lawrence The Times 13 July 1999 (non-disclosure of date and nature of disciplinary hearing); R v SSHD, ex p Beecham [1996] Imm AR 87, 89 (discussing position where “innocent misrepresentation”). 10.3.9 Procedural flexibility: breach of claimant duty of candour. R v Wirral Metropolitan Borough Council, ex p Bell (1995) 27 HLR 234, 238-239 (declining to dismiss permission application for serious non-disclosure alone, since notice to defendant meant no prejudice). 10.3.10 Judicial responses to claimant non-disclosure. Peerless Ltd v Gambling Regulatory Authority [2015] UKPC 29 at §24 (referring to the court’s “armoury of powers” including “ways of marking its disapproval”), §29 (claimant deprived of costs); R (MS) v SSHD [2010] EWHC 2400 (Admin) at §1 (injunction restraining removal discharged, because no arguable case “and because of material non-disclosure in the original ‘without notice’ application”); R v Wealden District Council, ex p Pinnegar [1996] COD 64 (setting aside interim prohibiting order, which could not conceive judge would have made had he known of the relevant facts not disclosed to him); R v Leeds City Council, ex p Hendry (1994) 6 Admin LR 439 (at substantive hearing, remedy refused for non-disclosure at permission stage); R v Liverpool City Council, ex p Filla [1996] COD 24 (claimant refused costs of judicial review proceedings which had become moot post-permission, because of serious breaches of duty of disclosure when applying for permission; emphasising the need of the Court to be able to rely on the claimant’s solicitors); R v SSHD, ex p Shahina Begum [1995] COD 176 (wasted costs order made against solicitor and barrister, for failure to put Treasury Solicitors’ letter (and enclosures) before the Court (despite a request to do so) and refusal to send them the bundle); R (F) v Head Teacher of Addington High School [2003] EWHC 228 (Admin) (wasted costs ordered against claimant’s solicitors where grounds not provided to defendant and defendant’s letter not drawn to attention of permission judge, and so misleading impression given as to defendant’s inaction).

10.4 Defendant/interested party’s duty of candour.26 A defendant public authority and its lawyers owe a vital duty to make full, fair and prompt disclosure of relevant material. That should include: (1) due diligence in investigating what material is available; (2) disclosure which is relevant or assists the claimant, including on some as yet unpleaded 26The

equivalent paragraph in a previous edition was relied on in Bancoult [2016] UKSC 35 [2017] AC 300 at §183 (Lord Kerr); Hoareau [2018] EWHC 1508 (Admin) at §18 (Singh LJ); O’Neill [2004] IESC 7 [2004] 1 IR 298 (Supreme Court of Ireland) at 307 (Keane CJ); Chan Mei Yiu Paddy [2008] 3 HKC 182 at §46 (Saunders J); Capital Rich [2007] HKCA 14 at §51; Broxbourne BC [2009] EWHC 695 (Admin) at §114 (Munby J); Henderson [2010] NZHC 554 at §108 (Miller J); Treasury Holdings [2012] IEHC 66 at §§126-127 (Finlay Geoghegan J); Building Authority [2013] HKCA 387 at §76 (Hon Fok JA); Plantagenet [2013] EWHC 3164 (Admin) [2014] ACD 26 at §70 (Haddon-Cave J); YY [2017] IEHC 176 at §48 (R Humphreys J); Murtagh [2017] IEHC 384 §§7-25 (Barrett J); Jet2.com Ltd [2020] EWCA Civ 35 [2020] 2 WLR 1215 at §52 (Morris J); Barrick [2020] PGNC 199 (Papua New Guinea National Court of Justice) at §15 (Kandakasi DCJ); Shao [2020] IEHC 68 at §4 (R Humphreys J).

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ground; and (3) disclosure at the permission stage if permission is resisted. An interested party is also under a duty of candour. A main reason why disclosure is not ordered in judicial review is because Courts trust public authorities to discharge this self-policing duty, which is why such anxious concern is expressed where it transpires that they have not done so. 10.4.1 Defendant/interested party’s duty of candour encapsulated. Administrative Court: Judicial Review Guide (2020 edition) at §14.1.5 (“Public authorities have a duty of candour and co-operation with the Court and must draw the Court’s attention to relevant matters. A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the Court in ensuring that these high duties are fulfilled. The Court will expect public authorities to comply with the duty of candour without being reminded of it. … Public authorities must provide full explanations of all facts relevant to the issues, and where necessary identify the significance of a document or fact. The public authority’s duty of candour has been recognised as applicable at the permission stage and applicable to interested parties”). 10.4.2 Defendant’s duty of candour. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2016] UKSC 35 [2017] AC 300 at §192 (Lady Hale: “It is a proud feature of the law of judicial review of administrative action … that the public authority whose actions or decisions are under challenge has a duty to make full and fair disclosure of all the relevant material. Only if this is done can the court perform its vital role of deciding whether or not those actions were lawful”); R (AHK) v SSHD (No 2) [2012] EWHC 1117 (Admin) [2012] ACD 66 at §22 (Ouseley J, referring to “the duty on the defendant authority to explain the full facts and reasoning underlying the decision challenged, and to disclose the relevant documents, unless in the particular circumstances of the case, other factors, including those which may fall short of requiring public interest immunity, may exclude their disclosure”); Graham v Police Service Commission [2011] UKPC 46 at §18 (“It is well established that a public authority, impleaded as respondent in judicial review proceedings, owes a duty of candour to disclose materials which are reasonably required for the court to arrive at an accurate decision”); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at §50 (Laws LJ: “there is … a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide”), applied in R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin) [2010] HRLR 12 at §22; Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] UKPC 6 [2004] Env LR 761 at §86 (Lord Walker: “A [defendant] authority owes a duty to the court to cooperate and to make candid disclosure, by way of [witness statement], of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings”); R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941, 945g (judicial review “to be conducted with all the cards face upwards on the table”), 947e (defendant “should set out fully what they did and why, so far as is necessary, fully and fairly to meet the challenge”), applied in Smart v DPP [2019] UKPC 35 at §§32-33; R v Secretary of State for Education, ex p S [1995] ELR 71, 85D (“It was of course incumbent on the Secretary of State in giving his decision to explain adequately how he has come to his conclusion”); R v Kensington and Chelsea Royal Borough Council, ex p Assiter The Times 20 August 1996 (incumbent on authority to explain to the court the basis of decision); Fayed {17.5.5}: {10.4.8} (defendant candour at/prior to the permission stage). 10.4.3 Defendant’s duty of candour: non-appearing defendant. R (Midcounties Co-operative Ltd) v Forest of Dean District Council [2015] EWHC 1251 (Admin) at §151 (Singh J: “if a defendant public authority finds itself in the position where it cannot, for financial reasons, defend its own decision in judicial review proceedings, and in particular where it cannot file a skeleton argument or make oral submissions at a substantive hearing, it should at least consider the following: (1) whether it has complied with its duty of candour 159

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and co-operation, by disclosing all relevant documents; (2) whether its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly; (3) whether it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained; (4) whether a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so”). 10.4.4 Full and accurate explanation of relevant facts/decision-making process. R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §106(3) (Singh LJ: “The duty of candour and co-operation is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide”); R (John-Baptiste) v DPP [2019] EWHC 1130 (Admin) at §6 (defendant having “given a full and accurate explanation of the decision-making process”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) [2018] ACD 91 at §20 (“The duty of candour and cooperation which falls on public authorities … is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide”); R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 [2017] 4 WLR 92 at §52 (“in a systemic unfairness case it [is] incumbent on [the defendant] to supply evidence of the system”); Abraha v SSHD [2015] EWHC 1980 (Admin) [2015] ACD 140 at §124 (Singh J: “the court must not be left guessing about some material aspect of the decision making process”); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at §50 (“duty … to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide”). 10.4.5 Defendant candour: duty of proactive explanation. R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §106(3)(4) (Singh LJ: “The witness statements filed on behalf of public authorities in a case such as this must not either deliberately or unintentionally obscure areas of central relevance; and those drafting them should look carefully at the wording used to ensure that it does not contain any ambiguity or is economical with the truth. There can be no place in this context for ‘spin’. The duty of candour is a duty to disclose all material facts known to a party in judicial review proceedings. The duty not to mislead the court can occur by omission, for example by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) [2018] ACD 91 at §20 (“it is the function of the public authority itself to draw the court’s attention to relevant matters … to identify ‘the good, the bad and the ugly’”), §22 (witness statements “should be drafted in clear and unambiguous language” which must not “deliberately or unintentionally obscure areas of central relevance” and “not contain any ambiguity or [be] economical with the truth of the situation. There can be no place for … ‘spin’”, citing Downes [2006] NIQB 77 at §31), §23 (duty to “identify the significance of a document or fact”); R (Khan) v SSHD [2016] EWCA Civ 416 at §38 (defendant’s duty of candour includes giving “full and accurate explanations of all the facts relevant to the issues”), §71 (“The duty is not to mislead the court which can occur by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact”); UB (Sri Lanka) v SSHD [2017] EWCA Civ 85 at §16 (candour includes drawing attention to relevant documents even if publicly available); Administrative Court: Judicial Review Guide (2020 edition) at §14.1.5 (“Public authorities must provide full explanations of all facts relevant to the issues, and where necessary identify the significance of a document or fact”). 10.4.6 Defendant candour: duty not to be selective. R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) [2018] ACD 91 at §21 (“there is a duty on public authorities not to be selective in their disclosure”); Lancashire County Council v Taylor [2005] EWCA Civ 284 [2005] 1 WLR 266 (discussing evidence on HRA justification and legislative compatibility) at §60 (“Departments of state 160

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need … to bear in mind that they have an advantage in this field. They have access to materials to which other parties have no access or which it would be difficult and expensive for them to search out. But axiomatically an exercise of this kind, if it is to be carried out at all, must disclose the unwelcome along with the helpful”; “the cautionary reminder that if research of this kind is to be placed before the court, it cannot be selective in what it tends to show”); R (National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154 at §47 (Government not entitled to withhold ministerial briefing and give secondary account instead); {17.1.8} (procedural rigour: the need to exhibit primary/best evidence). 10.4.7 Duty of candour as a self-policing duty: due diligence duty of lawyers. R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) [2018] ACD 91 at §18 (Singh LJ: “this is ‘a self-policing duty’. A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the court in ensuring that these high duties on public authorities are fulfilled”); R (KI) v Brent LBC [2018] EWHC 1068 (Admin) (2018) 21 CCLR 294 at §15 (“It is the responsibility of the lawyers involved in such cases to ensure that all those involved in the authority are aware of the duty of candour and comply with it”); {10.1.14} (procedural rigour: high standards and ‘self-policing’); R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin) [2010] HRLR 12 at §42 (“Secretary of State’s agents … [duty] to carry out … critically important and obviously highly relevant searches”; solicitor was required “to take steps to ensure that their client knows what documents have to be disclosed”); R (DL) v Newham LBC [2011] EWHC 1127 (Admin) [2011] 2 FLR 1033 at §42 (Charles J, explaining that it was not fair to place upon untrained employee of defendant authority “the obligation of extracting all relevant material”; “the exercise should be carried out or supervised by a lawyer (or other suitably trained and experienced person) by reference to the issues in the case”); Administrative Court: Judicial Review Guide (2020 edition) at §14.1.5 (“A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the Court in ensuring that these high duties are fulfilled”); cf TSol Guidance [2010] JR 177 at §1.3 (solicitor’s duty to investigate, explain and supervise, to go through the documents, and to ensure ongoing and prompt completeness), §2 (roles and responsibilities), §2.3 (Counsel’s duties to advise on disclosure, on the issues and on the nature and extent of the search to be carried out), §3 (sufficiency of the search “all-important”), §3.2 (relevance and proportionality), §4.2 (public interest immunity), §4.3 (redaction), §6.1 (“the case-handler should prepare and retain a statement recording: all searches made; all decisions (by lawyers and clients) about the extent of searches; all decisions made about the disclosability of documents; all decisions about all actions taken in relation to the preparation of documents for inspection”). 10.4.8 Defendant candour at/prior to the permission stage. R (Terra Services Ltd) v National Crime Agency [2019] EWHC 1933 (Admin) at §9 (Singh LJ and Carr J discussing “the duty of candour and cooperation with the court which applies in judicial review proceedings and, indeed, applies even at the permission stage”), §14 (“the duty of candour and cooperation with the court, particularly after permission to bring a claim for judicial review has been granted … is not confined exclusively to cases in which permission has been granted and may well be applicable, depending on the context, at or even before the permission stage”); Qalter v Preston Crown Court [2019] EWHC 906 (Admin) at §32 (treating the question whether the prosecutor had “complied with its duty of candour” as a relevant question at contested permission hearing); Treasury Holdings v NAMA [2012] IEHC 66 (High Court of Ireland) at §128 (Finlay Geoghegan J, discussing “the extent of the [defendant]’s obligation to disclose documents on an application for [permission]”), §129 (“it appears correct that [the claimant] should not be prejudiced by the absence before the Court of relevant documents”); R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) [2018] ACD 91 at §13 (duty of candour “particularly after permission to bring a claim for judicial review has been granted”); R (I) v SSHD [2010] EWCA Civ 727 at §50 (Munby LJ, leaving the point open: “Whatever may be the position at an earlier stage, once permission has been granted to apply for judicial review there is an obligation on the Secretary of State to make proper disclosure”); R (MP) v Secretary of State for Health and Social Care [2018] EWHC 3392 (Admin) at §5 (Lewis J: “Permission having been granted, 161

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the defendant is under an obligation to provide sufficient information to enable the court to assess the challenge”); Administrative Court: Judicial Review Guide (2020 edition) at §14.1.5 (“The public authority’s duty of candour has been recognised as applicable at the permission stage”); Judicial Review Pre-Action Protocol §13 (“Requests for information and documents made at the pre-action stage should be proportionate and should be limited to what is properly necessary for the claimant to understand why the challenged decision has been taken and/or to present the claim in a manner that will properly identify the issues. The defendant should comply with any request which meets these requirements unless there is good reason for it not to do so. Where the court considers that a public body should have provided relevant documents and/or information, particularly where this failure is a breach of a statutory or common law requirement, it may impose costs sanctions”); TSol Guidance [2010] JR 177, 179 (“Take steps to preserve all potentially relevant documents as soon as proceedings are likely. Start early. At the outset formulate, record and implement a strategy for conducting the disclosure exercise. … Devote sufficient resources from the outset”), §1.2 (“The duty of candour applies as soon as the department is aware that someone is likely to test a decision or action affecting them. It applies to every stage of the proceedings including letters of response under the pre-action protocol, summary grounds of resistance, detailed grounds of resistance witness statements and counsel’s written and oral submissions”); R (Sky Blue Sports & Leisure Ltd) v Coventry City Council [2013] EWHC 3366 (Admin) [2014] ACD 48 at §26 (claimant can “point to the fact that they have not had this disclosure so as to fortify their contention that they should be granted permission”), §29 (“the judge … will … take that into account when determining whether to grant permission”). 10.4.9 Defendant’s candour: beyond the pleaded case. R (MP) v Secretary of State for Health and Social Care [2018] EWHC 3392 (Admin) at §5 (Lewis J: “if a defendant understands, or chooses to read, the claim in a limited way, and thereafter limit the information provided pursuant to its duty of candour accordingly, it is appropriate for [the] defendant to tell the court in its evidence what it has done. Ideally, that will enable any issues in relation to disclosure to be dealt with in advance of the hearing”); R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin) [2012] 1 WLR 838 at §§5, 34 (disclosure properly made, relevant to judicial review ground for which permission had been refused, but which was then permitted to be argued and which succeeded); R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 1 WLR 1052, 1058C-D (claimant permitted to raise matters not in original grounds, because: “It must be remembered that, in applications for [quashing orders], the [claimant] knows very little of what has happened behind the scenes. He only knows that a decision has been taken which is adverse to him, and he complains of it. His statement of grounds … should not be treated as rigidly as a pleading in an ordinary civil action. If the Divisional Court give [permission] (as it did here) the practice is for the [defendant] to put on affidavits the full facts as known to them. The matter is then considered at large upon the affidavits. If there then appear to be other grounds on which [a quashing order] may be granted, the court can inquire into them without being bound by the grounds stated in the original statement. The Divisional Court will always look into the substance of the matter. So here”); R v Waltham Forest LBC, ex p Baxter [1988] QB 419, 422A-B (Sir John Donaldson MR commenting that: “the council rightly responded with additional information, as a result of which four principal issues emerged”); TSol Guidance [2010] JR 177 {10.4.7} at §1.2 (“The duty extends to documents/information which will assist the claimant’s case and/or give rise to additional (and otherwise unknown) grounds of challenge”). 10.4.10 Defendant’s duty of candour as a continuing duty. R (Legard) v Kensington and Chelsea RLBC [2018] EWHC 32 (Admin) [2018] PTSR 1415 at §174 (Dove J: “the duty of candour is a continuous duty”); R (KI) v Brent LBC [2018] EWHC 1068 (Admin) (2018) 21 CCLR 294 at §7 (David Elvin QC, referring to “the continuing duty to consider observance of the duty of candour”); Administrative Court: Judicial Review Guide (2020 edition) at §14.1.6 (“The duty of candour is a continuing duty on all parties”).

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10.4.11 Interested parties also owing a duty of candour. Qalter v Preston Crown Court [2019] EWHC 906 (Admin) at §32 (duty of candour treated as applicable to interested party prosecutor); R (Khan) v SSHD [2016] EWCA Civ 416 at §71 (Ryder LJ: “the duty of candour … to disclose all material facts known to a party in judicial review proceedings applies to all parties in the proceedings”); R (Midcounties Co-operative Ltd) v Forest of Dean District Council [2015] EWHC 1251 (Admin) at §150 (Singh J: “There are circumstances in which an interested party will also be subject to the duty of candour and co-operation”); R (Gillan) v Commissioner of Police of the Metropolis [2004] EWCA Civ 1067 [2005] QB 388 (CA) at §54 (referring to “the general obligation on parties conducting judicial review proceedings to do so openly”); Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] UKPC 6 [2004] Env LR 761 at §87 (Lord Walker, explaining that duty of candour also applicable to third party developer, being in effect partners with the defendant Department in the development project); Administrative Court: Judicial Review Guide (2020 edition) at §14.1.5 (“The public authority’s duty of candour has been recognised as … applicable to interested parties”). 10.4.12 Praising defendants for candour. R (Evans) v Lord Chancellor [2011] EWHC 1146 (Admin) [2012] 1 WLR 838 at §5 (crucial documents “have very properly been produced”); R (Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067 at §63 (commending “the wholly admirable conduct of the relevant government servants and counsel instructed for the [defendants] who have examined and then disclosed without cavil or argument all the material documents contained in the files of government departments, some of which … are embarrassing and worse. This has exemplified a high tradition of cooperation between the executive and the judiciary in the doing of justice, and upholding the rule of law”); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171G-H (albeit no duty to give reasons, FCC “acted with complete propriety” in giving them), 199D-E (“it very properly disclosed its reasons”); R v Army Board of the Defence Council, ex p Anderson [1992] QB 169, 179D (paying tribute to the “total candour” of the defendant’s affidavit); R v SSHD, ex p Launder [1997] 1 WLR 839, 856H (Secretary of State having “decided, in a commendable departure from the normal procedure in extradition cases, to give reasons for his decision”); M v Home Office [1994] 1 AC 377, 425H (privilege “commendably” waived). 10.4.13 Criticising defendants for lack of candour. R (TP) v Secretary of State for Work and Pensions [2020] EWCA Civ 37 at §140 (explanation should have been given in earlier proceedings); R (Ismail) v SSHD [2019] EWHC 3192 (Admin) [2020] ACD 18 at §8 (“The trust and confidence upon which the duty of candour depends is undermined by the events which have occurred in these proceedings”); R (Citizens UK) v SSHD [2018] EWCA Civ 1812 [2018] 4 WLR 123 at §§168, 170 (serious breach of duty of candour and cooperation); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2016] UKSC 35 [2017] AC 300 at §3 (“culpable” breach of the duty of candour); R (I) v SSHD [2010] EWCA Civ 727 at §§53-55 (regrettable state of affairs which could call for inferences adverse to the Secretary of State); R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin) [2010] HRLR 12 at §13 (“the approach of the Secretary of State to disclosure in this case was lamentable”); R (S) v SSHD [2006] EWHC 1111 (Admin) at §117 (indemnity costs awarded where defendant providing no grounds, evidence or explanation); R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at §55 (defendant having “fallen short of those high standards of candour which are routinely adhered to by government departments faced with proceedings for judicial review”), §68 (“the approach taken to the public decisions that had to be made fell unhappily short of the high standards of fairness and openness which is now routinely attained by British government departments”); R (Rashid) v SSHD [2005] EWCA Civ 744 [2005] INLR 550 at §52 (criticising failure to cooperate and make candid disclosure of relevant facts and reasoning behind challenged decision); Central Broadcasting Services Ltd v Attorney General of Trinidad and Tobago [2006] UKPC 35 [2006] 1 WLR 2891 at §§26-27 (non-disclosure of relevant facts),

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§36 (“highly regrettable” that lower courts allowed to proceed on false premise); R v London Borough of Lambeth, ex p Campbell (1994) 26 HLR 618, 622 (“lamentable” failure of duty “to disclose all the facts which it ought reasonably to appreciate are relevant to the issue or issues arising in a judicial review”); Jordan Abiodun Iye v SSHD [1994] Imm AR 63, 67 (“unsatisfactory” inability “to make clear” Secretary of State’s position). 10.4.14 Opportunities for candour. {19.1.9} (letter of response); {19.3} (acknowledging the claim); {22.1.5} (defendant/third party’s detailed response/evidence).

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P11 Precedent & authority. Previous case law may bind, or persuasively influence, the Court’s analysis; but must always be approached with rigour, care and insight. 11.1 Use of precedent and authority

11.1 Use of precedent and authority. Well-established rules and principles regarding precedent and the citing authority apply to judicial review proceedings, with some additional features relevant to the sort of case law encountered in this field. Rigour and selectivity are always appropriate. Having said that, beyond authoritative statements of binding domestic principle, Courts may find illumination in judicial observations and in working illustrations of the application of principles, as well as comparative jurisprudence and academic commentary. They may help. 11.1.1 Case law: a living legacy of real people’s access to justice. R (UNISON) v Lord Chancellor [2017] UKSC 51 [2017] ICR 1037 at §70 (Lord Reed: “Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established”); {7.5} (access to justice). 11.1.2 Judicial statements of principle are not rules set in stone. Woodland v Swimming Teachers Association [2013] UKSC 66 [2014] AC 537 at §28 (Lady Hale: “the words used by judges in explaining why they are deciding as they do are not be treated as if they were the words of statute, setting the rules in stone and precluding further principled development should new situations arise”); R (P) v Secretary of State for Justice [2019] UKSC 3 [2020] AC 185 at §41 (Lord Sumption: “In a precedent-based system, the reasoning of judges has to be approached in the light of the particular problem that was before them. There is a danger in treating a judge’s analysis of that problem as a general statement of principle applicable to a whole area of law”); Armes v Nottinghamshire County Council [2017] UKSC 60 [2018] AC 355 at §36 (Lord Reed: “It is important to bear in mind … that … judicial statements are not to be treated as if they were statutes, and can never be set in stone. Like other judicial statements, [they] … may need to be reconsidered, and possibly refined, in particular contexts”); R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin) [2007] Env LR 623 at §61 (“Judgments are not to be construed as though they were enactments of general application”). 11.1.3 Precedent is a guide, not a cage: the Bingham maxim. R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 690f (Sir Thomas Bingham MR, speaking in the context of substantive unfairness: “precedent should act as a guide not a cage”); applied in R (British Civilian Internees – Far Eastern Region) v Secretary of State for Defence [2003] EWCA Civ 473 [2003] QB 1397 at §69; R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755 at §42; R (Talpada) v SSHD [2018] EWCA Civ 841 at §60; R (Shaw) v Secretary of State for Education [2020] EWHC 2216 (Admin) at §92. 11.1.4 Approach to public law case law. R v Secretary of State for Transport, ex p Richmond upon Thames LBC (No 4) [1996] 1 WLR 1460, 1472E (“It is always unwise to transfer principles established in one branch of administrative law too slavishly into another”); R v Ministry for Agriculture Fisheries & Food, ex p Hamble Fisheries (Offshore) Ltd [1995] 2 All ER 714, 728j (case law approached with “caution, looking not for analogy but for principle”); R (Wooder) v Feggetter [2002] EWCA Civ 554 [2003] QB 219 at §42 (warning in the context of reasons against “treating the categories so far acknowledged in the reactive and exploratory growth of the common law as exhaustive. Rather than try to fit given shapes into pre-formed slots like toddlers in a playgroup …, the courts have to continue the process of working out and refining, case by case, the relevant principles of fairness”) {31.4.3}.

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11.1.5 Cases turning on their facts. Kaur v SSHD [2019] EWCA Civ 1101 [2019] 4 WLR 94 at §23 (Coulson LJ, castigating a “blizzard of references to irrelevant, fact-dependent cases”); Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §26 (Lord Sumption: “Every case turns on its own facts, and analogies with other decided cases can be misleading”); R v Independent Television Commission, ex p TSW Broadcasting Ltd [1994] 2 LRC 414, 430d (Lord Templeman: “Of course in judicial review proceedings, as in any other proceedings, everything depends on the facts”), applied in R v Inland Revenue Commissioners, ex p Unilever Plc [1996] STC 681, 686a; R (PD) v West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311 at §8 (Lord Phillips MR: “The natural reaction of the lawyer to any problem is to look for case precedent and this is true even where the issue is essentially one of fact. In such circumstances precedent can be helpful in focusing the mind on the relevant issues and producing consistency of approach. In a case such as the present, however, [where] the search is for the reaction of the fair-minded and informed observer … citation of authorities may cloud rather than clarify perception. The court must be careful when looking at case precedent not to permit it to drive common sense out of the window”); R v SSHD, ex p Ku [1995] QB 364 (rejecting previous authority as resting on finding of fact with which the present Court disagreed); R v Chief Constable of the Merseyside Police, ex p Merrill [1989] 1 WLR 1077, 1084H-1085A (“Judgments apply specifically to the facts of the case under consideration and only incidentally may have more general application”); R v Central Criminal Court, ex p Hutchinson [1996] COD 14 (reference to previous cases on highly variable context of legality of search warrants unhelpful); Ridge v Baldwin [1964] AC 40, 64-65 (Lord Reid, warning as to “opinions [that] have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist”); R v SSHD, ex p Bobby Gangadia [1994] Imm AR 341, 345 (alternative remedy cases “which depend entirely on their facts get reported in the Immigration Appeal Reports as if they laid down some new principles of law”); cf Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 at §33 (Lord Hoffmann: “A judicial decision must … rest on ‘reasons that in their generality and their neutrality transcend any immediate result that is involved’”). 11.1.6 Caution: older case law. {2.1.7} (judicial review: the historical context); R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §74 (discussing cases which “came at a relatively early state in the evaluation by the courts of the Anisminic principle”); R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §52 (departing from a line of authority which was “unattractive” and “capable of depriving judicial review of any real teeth”), §50 (the key authority dated “from a period when the principles governing judicial review were at a relatively early stage of development”); Palacegate Properties Ltd v Camden LBC [2000] 4 PLR 59, 79F (“the earlier decisions … have to be regarded with a degree of care”); Gibb v Maidstone & Tunbridge Wells NHS Trust [2010] EWCA Civ 678 [2010] IRLR 786 at §54, applying the warning in R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 639H-640D (Lord Diplock: “Any judicial statements on matters of public law if made before 1950 are likely to be a misleading guide to what the law is today”), 656E-H (Lord Roskill: “today of little assistance”); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 400D-E (declining to follow a “case … decided long before the modern development of judicial review”). 11.1.7 Doctrine of precedent. R (Youngsam) v Parole Board [2019] EWCA Civ 229 [2020] QB 387 at §§21, 39, 48 (CA explaining the principle that “The ratio decidendi of a case is any rul[ing on a point] of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him”), §40 (Leggatt LJ: “the ability to identify the ratio of a case and to distinguish it from obiter dicta is an indispensable skill for any common lawyer”); Willers v Joyce (No 2) [2016] UKSC 44 [2018] AC 843 at §§4-9 (Lord Neuberger, explaining the doctrine of precedent and its application), §§11, 16-21 (status of decisions of the Privy Council); Secretary of State for Health v Serview Laboratories Ltd [2019] EWCA Civ 1096 [2020] Ch 193 at §73 (considering nature of ‘ratio’ 166

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of CJEU decisions); Kadhim v Housing Benefit Board, London Borough of Brent [2001] QB 955 (court not bound by proposition of law assumed by an earlier court without argument); R v Simpson [2003] EWCA Crim 1499 [2004] QB 118 at §27 (“The rules as to precedent reflect the practice of the courts and have to be applied bearing in mind that their objective is to assist in the administration of justice. They are of considerable importance because of their role in achieving the appropriate degree of certainty as to the law. This is an important requirement of any system of justice. The principles should not, however, be regarded as so rigid that they cannot develop in order to meet contemporary needs”) Sayce v TNT (UK) Ltd [2011] EWCA Civ 1583 [2012] 1 WLR 1261 at §24 (lower court should follow obiter observations intended to decide a point of principle to clarify the law). 11.1.8 Whether to follow decision of court of coordinate jurisdiction: Tal. Willers v Joyce (No 2) [2016] UKSC 44 [2018] AC 843 at §8 (Court of Appeal “bound by its own previous decisions, subject to limited exceptions”), §9 (“High Court … judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary”); R (DN (Rwanda)) v SSHD [2018] EWCA Civ 273 [2019] QB 71 at §§36-41 (discussing limited circumstances in which CA can properly depart from previous CA authority) (SC is [2020] UKSC 7 [2020] AC 698); R (National Council for Civil Liberties) v SSHD [2018] EWHC 975 (Admin) [2019] QB 481 at §89 (“Although a decision of an earlier Divisional Court will normally be followed by another Divisional Court, it is not strictly binding on it”, referring to R v Greater Manchester Coroner, ex p Tal [1985] QB 67, 79-81); R (VIP Communications Ltd) v SSHD [2019] EWHC 994 (Admin) [2019] ACD 69 at §78 (“powerful reason” here not to follow previous High Court decision); R (Ismail) v SSHD [2019] EWHC 3192 (Admin) [2020] ACD 18 at §58 (previous High Court decisions “clearly wrong”); R (Terra Services Ltd) v National Crime Agency [2020] EWHC 1640 (Admin) at §71 (previous High Court authority “confined to the predecessor legislative regime” or “should not be followed”); R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin) [2019] PTSR 1871 at §106 (DC departing from previous High Court decisions); Knauer v Ministry of Justice [2016] UKSC 9 [2016] AC 908 at §§22-23 (approach to whether SC should depart from previous SC/HL decision); Turani v SSHD [2019] EWHC 1586 (Admin) at §115 (single judge accepting that “must follow” DC); Deane v Secretary of State for Work and Pensions [2010] EWCA Civ 699 [2011] 1 WLR 743 (whether CA should follow decision of Northern Ireland Court of Appeal as to same statutory provision). 11.1.9 Precedent: decisions of the Privy Council. Willers v Joyce (No 2) [2016] UKSC 44 [2018] AC 843 at §12 (PC decision not “binding” but “should … normally be regarded … as being of great weight and persuasive value”), §16 (“can normally be expected to follow”), §17 (judge should not “follow a decision of the PC, if it is inconsistent with the decision of a court which is otherwise binding”), §19 (unless PC “decides” that HL, SC or CA decision “was wrong”). 11.1.10 Precedent and HRA: binding domestic precedent governs. Kay v Lambeth LBC [2006] UKHL 10 [2006] 2 AC 465 at §43 (domestic court bound, in the usual way, by post-HRA decision of the HL or CA as to the content of the ECHR, even if inconsistent with later ECtHR decision); Mendoza v Ghaidan [2002] EWCA Civ 1533 [2003] Ch 380 (CA) at §6 (“a court is bound by any decision within the normal hierarchy of domestic authority as to the meaning of an article of the Convention”) (HL is [2004] UKHL 30 [2004] 2 AC 557); R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926 [2003] QB 1300 at §41 (HL is at [2005] UKHL 15 [2005] 2 AC 246); R (Bright) v Central Criminal Court [2001] 1 WLR 662, 682E-H (inappropriate to re-examine and reinterpret decisions of the ECtHR which have authoritatively been examined by HL or CA); R (McGrath) v Secretary of State for Work and Pensions [2012] EWHC 1042 (Admin) at §24 (High Court unable to “adopt a Strasbourg decision in preference to binding authority of the Court of Appeal”); R (Minter) v Chief Constable of Hampshire Constabulary [2011] EWHC 1610 (Admin) [2012] 167

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1 WLR 1157 at §47 (DC duty to follow HL decision notwithstanding subsequent decision of ECtHR. 11.1.11 Cooperation: avoiding problem of binding domestic HRA precedent. R (RJM) v Secretary of State for Work and Pensions [2007] EWCA Civ 614 [2007] 1 WLR 3067 (CA) at §§21-22 (proper concession enabling reliance on ECtHR decision overriding binding domestic case) (HL is [2008] UKHL 63 [2009] AC 311). 11.1.12 Overruling domestic HRA case of coordinate jurisdiction: new Strasbourg authority. R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 [2009] AC 311 at §66 (CA able, but not obliged, to depart from own previous decision in the light of a contrary ECtHR decision); R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 [2009] AC 311 at §64 (HL alone able to depart from previous HL decision in the light of a contrary ECtHR decision); R (GC) v Metropolitan Police Commissioner [2011] UKSC 21 [2011] 1 WLR 1230 at §15 (HL decision could not stand in light of ECtHR decision); Doherty v Birmingham City Council [2008] UKHL 57 [2009] AC 367 (HL declining to overrule itself, notwithstanding ECtHR decision applying minority approach from previous case); Manchester City Council v Pinnock (No 1) [2010] UKSC 45 [2011] 2 AC 104 at §§46-49 (overruling Kay and Doherty in light of the now “unambiguous and consistent approach” of the ECtHR); R (Purdy) v DPP [2009] UKHL 45 [2010] 1 AC 345 at §34 (HL should depart from “previous decision as to the meaning or effect of a Convention right … shown to be inconsistent with a subsequent decision in Strasbourg”). 11.1.13 Citing/handling Strasbourg authority. Rabone v Pennine Care NHS Trust [2012] UKSC 2 [2012] 2 AC 72 at §123 (Lord Mance, explaining that “individual section decisions of the [Strasbourg] court may not respond well to the same close linguistic analysis that a common lawyer would give to binding precedents”); BBC v Sugar [2009] UKHL 9 [2009] 1 WLR 430 at §68 (need for focus on the domestic freedom of information statutory scheme, without which focus “a long trawl through the Strasbourg jurisprudence on article 10 … is of little assistance”); Williams v Cowell [2000] 1 WLR 187, 198D-E (wrong “to turn a judicial hearing of a particular case into an international human rights seminar. … There should only be put before the court that part of the researched material which is reasonably required for the resolution of the particular [case]”); Daniels v Walker [2000] 1 WLR 1382, 1386F-1387C (“it is essential that counsel, and those who instruct counsel, take a responsible attitude as to when it is right to raise a Human Rights Act point”); Barclays Bank Plc v Ellis 9 August 2000 unreported at §37 (Counsel relying on HRA argument under a “duty to have available for the information of the court any material in terms of decisions of the European Court of Human Rights upon which they wish to rely or which will help the court in its adjudication”); R (Bright) v Central Criminal Court [2001] 1 WLR 662, 679D-F (lamenting “vast and increasingly lengthy” ECtHR citations “simply repeating in different language long standing and well understood principles of the common law”); R (W) v Metropolitan Police Commissioner [2005] EWHC 1586 (Admin) [2005] 1 WLR 3706 at §21 (“the resolution of points of statutory interpretation … can very often be achieved without any need to refer to Strasbourg law at all”); R (Williamson) v Secretary of State for Education and Employment [2002] EWCA Civ 1926 [2003] QB 1300 at §72 (Court directing further oral hearing because discovering line of Strasbourg authority which was considered potentially relevant and which had not been put before the Court), §183 (new point decisive) (HL is at [2005] UKHL 15 [2005] 2 AC 246). 11.1.14 Academic commentary. R v Shayler [2002] UKHL 11 [2003] 1 AC 247 at §76 (Lord Hope: “much useful guidance on the difference between the traditional grounds of judicial review and the proportionality approach can be found in the work of academic public lawyers on this subject”); R v G [2003] UKHL 50 [2004] 1 AC 1034 at §34 (Lord Bingham, describing as something which “must command attention” the fact that “a decision … attracts reasoned and outspoken criticism by the leading scholars of the day, respected as authorities in the field”); Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 488B-C (referring to academic commentators as “pilgrims with us on the endless road to unattainable perfection”); 168

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R v Local Commissioner for Administration for the North & East Area of England, ex p Bradford Metropolitan City Council [1979] QB 287, 311F-H (Lord Denning MR, describing the Courts’ indebtedness to “the writings of the teachers of law”). Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595 [2002] QB 48 at §56 (CA considering witness statements from two academics on the question of whether a housing association was exercising a public function for the purposes of the HRA). 11.1.15 Comparative jurisprudence. R (Nunn) v Chief Constable of Suffolk Police [2014] UKSC 37 [2015] AC 225 at §§26-28 (considering New Zealand, Canada and the United States in relation to the common law duty to disclose prosecution material); R (Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 [2014] AC 610 at §35 (singling out two US cases, from “the considerable volume of common law jurisprudence” on the meaning of “religion”); Woodland v Swimming Teachers Association [2013] UKSC 66 [2014] AC 537 at §17 (Australian cases regarding non-delegable duty of care); R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 [2013] QB 618 at §88 (Toulson LJ: “I base my decision on the common law principle of open justice. In reaching it I am fortified by the common theme of the judgments in other common law countries to which I have referred. Collectively they are strong persuasive authority. The courts are used to citation of Strasbourg decisions in abundance, but citations of decisions of senior courts in other common law jurisdictions is now less common. I regret the imbalance. The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere”); Jones v Kaney [2011] UKSC 13 [2011] 2 AC 398 at §74 (Lord Collins: “Because this appeal raises questions of policy it is more than usually helpful to look at developments in other countries”), §76 (“It is highly desirable that at this appellate level, in cases where issues of legal policy are concerned, the court should be informed about the position in other common law countries”); Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, 378B (Lord Goff, referring to judges as having “regard, where appropriate, to decisions of judges in other jurisdictions”); Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 at §9.1 (“Cases decided in other jurisdictions can, if properly used, be a valuable source of law in this jurisdiction”); Markesinis, “Our Debt to Europe: Past, Present and Future” in Markesinis (ed), The Clifford Chance Millennium Lectures: The Coming Together of the Common Law and the Civil Law (2000) at 66 (referring to Lord Goff’s statement in his Child Lecture, that: “we are bound to see an enrichment of our legal culture on an unparalleled scale through the increasing study of comparative law”); DPP v Hutchinson [1990] 2 AC 783, 805F (US and Australian authority providing “the fullest exploration and exposition of the principles governing the severability of legislative instruments”); Rees v Crane [1994] 2 AC 173, 191G-H (reliance on Commonwealth authorities as to natural justice); R v SSHD, ex p O’Brien (1996) 8 Admin LR 121 (DC), 134B-C (US case law “persuasive”); In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 (analysing the law of apparent bias by reference to the Strasbourg jurisprudence, together with that of the Commonwealth and Scotland); Re Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72 [2006] 1 AC 495 at §11 (in interpreting an international convention, “assistance can and should be sought from relevant decisions of the courts of other Convention countries, but the weight to be given to them will depend upon the standing of the court concerned and the quality of the analysis”); D v East Berkshire Community Health NHS Trust [2005] UKHL 23 [2005] 2 AC 373 at §49 (Lord Bingham, referring to state liability position in France and Germany; also CA at [2003] EWCA Civ 1151 [2004] QB 558, considering New Zealand cases in context of negligence liability and child abuse investigation cases); Anufrijeva v Southwark LBC [2003] EWCA Civ 1406 [2004] QB 1124 at §54 (CA referring to Indian authority as to role of public law damages). Fishermen and Friends of the Sea v Environmental Management Authority [2018] UKPC 24 [2018] PTSR 1979 at §45 (declining to adopt the US “‘hard look’ doctrine”); Sheldrake v DPP [2004] UKHL 43 [2005] 1 AC 264 at §33 (“valuable insights from the reasoning of Commonwealth judges deciding issues under different human rights instruments”, 169

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but “[s]ome caution is … called for in considering different enactments decided under different constitutional arrangements”, especially since “the United Kingdom courts must take their lead from Strasbourg”); Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, 724C-F (“care needs to be taken” in citing Canadian authority in relation to the approach to the ECHR; not “a reliable guide”); R (Pretty) v DPP [2001] UKHL 61 [2002] 1 AC 800 at §23 (s.7 of the Canadian Charter having “no close analogy in the European Convention”); A, X and Y v SSHD [2002] EWCA Civ 1502 [2004] QB 335 (CA) at §94 (“it is always dangerous to refer to an interpretation of a different human rights charter, however distinguished the source of that interpretation, without taking into account any significant differences in the language of that charter”) (HL is [2004] UKHL 56 [2005] 2 AC 68); R (Wellington) v SSHD [2008] UKHL 72 [2009] AC 335 at §33 (recognising assistance to be derived from Canadian authorities). 11.1.16 Procedural rigour: selectivity and discipline in citing authority. Kaur v SSHD [2019] EWCA Civ 1101 [2019] 4 WLR 94 at §23 (Coulson LJ: “Proper limits on the citation of authorities in judicial review cases are required”); Practice Direction (Citation of Authorities) [2012] 1 WLR 780 at §10 (“An unreported case should not usually be cited unless it contains a relevant statement of legal principle not found in reported authority”), discussed in Kaur v SSHD at §23 (describing this requirement as “not simply a dry argument about precedent”, it being necessary to counter “promiscuous citation” and “a ‘kitchen-sink’ approach” involving a “blizzard of references to irrelevant, fact-dependent cases”); Poshteh v Kensington and Chelsea Royal LBC [2017] UKSC 36 [2017] AC 624 at §44 (referring to bundles of authorities and over-proliferation), §47 (“It is essential that those involved in the preparation of … bundles, whether as counsel or solicitors, take full responsibility for keeping their contents within reasonable bounds and exercise restraint”); R v Erskine [2009] EWCA Crim 1425 [2010] 1 WLR 183 at §§69-73 (Lord Judge CJ, setting out the leading cases warning against the “superfluity of citation”, and “excessive citation of authority” given judgments’ “ready availability on the Internet”, with the risk of the courts being “swamped by the torrent of material”); Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 at §2 (important that courts are not “burdened with a weight of inappropriate and unnecessary authority”); R (Countryside Alliance) v Attorney General [2006] EWCA Civ 817 [2007] QB 305 (CA) at §3 (criticising the excessive number of authorities and absence of consolidated index); R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657 at §1 (criticising the number of authorities and lack of focus) R (Schmelz) v Immigration Appeal Tribunal [2004] EWCA Civ 29 at §24 (excessive and irrelevant authorities). 11.1.17 Procedural rigour: duty to cite adverse authority. Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 at §4 (emphasising “the duty of advocates to draw the attention of the court to any authority not cited by an opponent which is adverse to the case being advanced”); Re V (A Child) (Care Proceedings: Human Rights Claims) [2004] EWCA Civ 54 [2004] 1 All ER 997 at §103 (“Counsel has a plain duty to bring to the attention of the court any authority, which may be on the point, particularly if it is contrary to the argument which counsel is advancing”). 11.1.18 Procedural rigour: need to identify the (distinct) proposition of law. Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 at §8.1 (“Advocates … required to state, in respect of each authority that they wish to cite, the proposition of law that the authority demonstrates, and the parts of the judgment that support that proposition”; “If it is sought to cite more than one authority in support of a given proposition, advocates must state the reason for taking that course”), §8.4 (statement to “demonstrate, in the context of the advocate’s argument, the relevance of the authority or authorities to that argument and that the citation is necessary for a proper presentation of that argument”); Practice Direction (Citation of Authorities) [2012] 1 WLR 780 at §4 (CA authorities bundles should “not include authorities for propositions not in dispute”).

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11.1.19 Procedural rigour: need reason for citing factual application of decided law. Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 at §7.1 (“Courts will … pay particular attention … to any indication given by the court delivering the judgment [cited] that it was seen by that court as only applying decided law to the facts of the particular case; or otherwise as not extending or adding to the existing law”), §7.2 (“Advocates who seek to cite a judgment that contains indications of the type referred to in para 7.1 will be required to justify their decision to cite the case”). 11.1.20 Citing authority: use of reports/transcripts. Administrative Court: Judicial Review Guide (2020 edition) at §19.2.4 (“Authorities which have been reported should be produced in their reported form. If a case has been reported in the Law Reports, that version of the case should be used in preference to any other. Copies of reported authorities printed from websites should be in the same format as the hard-copy printed version of the report. Transcripts are only acceptable if the case has not been reported”); Practice Direction (Citation of Authorities) [2012] 1 WLR 780 at §§5-13 (hierarchy of reports to be cited; acceptable form of electronic reproductions); Hamblin v Field The Times 26 April 2000 (criticising the use of summaries instead of the judgments); R v Bolsover District Council, ex p Pepper [2001] LGR 43 at §25 (Keene J: “it is important that those seeking to rely upon … decisions should seek to obtain the full judgments in cases where only a summary is available in the reports”). 11.1.21 Need to keep abreast of developments. R (MN (Tanzania) v SSHD [2011] EWCA Civ 193 [2011] 1 WLR 3200 at §1 (Maurice Kay LJ, speaking of “the development of the law”: “the pace can be frenetic and it sometimes happens that cases are decided without reference between them because, in the torrent of information, one court is left unaware of what another has decided”); Copeland v Smith [2000] 1 All ER 457 (Brooke LJ: “It is quite essential for advocates who hold themselves out as competent to practise in a particular field to bring and keep themselves up to date with recent authority in their field”). 11.1.22 Permission decisions: whether permission to cite. R (Bowen) v Secretary of State for Justice [2017] EWCA Civ 2181 [2018] 1 WLR 2170 at §50 (“a decision refusing permission to apply for judicial review … would not normally be citable as authority”); R (McCourt) v Parole Board [2020] EWHC 2320 (Admin) at §80 (Court giving permission to cite); R (Liberal Democrats) v ITV Broadcasting Ltd [2019] EWHC 3282 (Admin) [2020] 4 WLR 4 at §120 (permission to cite); R (Liberty) v Prime Minister [2019] EWCA Civ 1761 [2020] 1 WLR 1193 at §32 (permission to cite); R (Webster) v Secretary of State for Exiting the European Union [2018] EWHC 1543 (Admin) [2019] 1 CMLR 8 at §25 (permission to cite); cf. R v Hammersmith and Fulham LBC, ex p Burkett [2002] UKHL 23 [2002] 1 WLR 1593 at §41 (“judgments on applications for permission to apply for judicial review … are generally not regarded as authoritative”). 11.1.23 Procedural rigour/cooperation: bundles of authorities. Administrative Court: Judicial Review Guide (2020 edition) at §19.1.1 (“Parties should limit the number of authorities (i.e. cases) referred to. They should cite only those authorities that it is necessary to refer to for the fair disposal of the claim”), §19.1.2 (“Where extensive authorities are cited, it is preferable to agree a core bundle of authorities, itself not exceeding 10 authorities”), §19.2 (format of authorities bundles), §19.2.4 (“Authorities which have been reported should be produced in their reported form. If a case has been reported in the Law Reports, that version of the case should be used in preference to any other. Copies of reported authorities printed from websites should be in the same format as the hard-copy printed version of the report. Transcripts are only acceptable if the case has not been reported”), §19.3.1 (“A party should always notify the other party or parties of any authorities on which he or she intends to rely at the hearing, in good time before the hearing, and ensure that copies of those authorities are available for that party at the hearing”), §19.3.2 (“The Court will usually give directions for a single bundle of authorities, containing the authorities relied on by all parties, to be lodged in advance of any substantive hearing. If there are no directions in place, the parties are required to work together to compile a single list of authorities (containing all authorities relied on

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by all parties), and to ensure that a bundle of those authorities is lodged at Court in good time before any hearing”), §19.3.3 (“All authorities on which the parties intend to rely at the substantive hearing should be included in the bundles of authorities”), §19.4.1 (“If the bundle of authorities does not comply with this guidance, or is lodged late, the Court may refuse to allow the party in default to rely on those authorities, may require the bundle to be adjusted to meet the Court’s requirements, and/or may make an adverse costs order against the party in default”).

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P12 Reviewing primary legislation. Judicial review includes narrow but well-established functions of assessing the legal compatibility of Acts of Parliament. 12.1 Primary legislation: invalidity/disapplication under EU law 12.2 HRA s.4: declaration of incompatibility (DOI) 12.3 Judicial review of primary legislation at common law

12.1 Primary legislation: invalidity/disapplication under EU law. While the UK was part of the EU and while the European Communities Act 1972 was in force, the Courts became familiar with considering direct challenges to domestic primary legislation, assessing its incompatibility with EU law. The Court could give a declaration of inconsistency with EU law and could hold that the primary legislation was, to the extent of the inconsistency, to be disapplied. 12.1.1 Declaration that primary legislation inconsistent with EU law. {P8} (EU law); R (Watson) v SSHD [2018] EWCA Civ 70 [2018] QB 912 at §27 (CA granting declaration that Data Retention and Investigatory Powers Act 2014 s.1 inconsistent with EU law, as described in the declaration); R (National Council for Civil Liberties) v SSHD [2018] EWHC 975 (Admin) [2019] QB 481 at §§186-187 (DC giving declarations that domestic statute incompatible with EU law and that it was required to be remedied within a specified time period); R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1 (declaring primary legislation incompatible with EU law). 12.1.2 Disapplication of primary legislation for EU-inconsistency. R (Hughes) v Board of the Pension Protection Fund [2020] EWHC 1598 (Admin) at §230 (statutory provisions “must be disapplied”); Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 [2017] ICR 1327 at §§78-79 (domestic statutory immunity provision to be disapplied, because violating the access to a court guarantee in Art 47 of the EU Charter of Fundamental Rights, thus going further than a declaration of incompatibility would by reference to HRA:ECHR Art 6); Innospec Ltd v Walker [2017] UKSC 47 [2017] ICR 1077 at §76 (declaration describing the circumstances in which provision of primary legislation incompatible with EU Directive and “must be disapplied”); R (National Council for Civil Liberties) v SSHD [2018] EWHC 975 (Admin) [2019] QB 481 at §§186-187 (DC giving declarations that domestic statute incompatible with EU law and that it was required to be remedied within a specified time period), §83 (“there is no automatic rule that, once it is held or conceded that a provision of primary legislation is incompatible with EU law, the national legislation must immediately be disapplied; and … what is crucial is the nature of the incompatibility”), §92 (an order here involving immediate disapplication would be inappropriate); R (Open Rights Group) v SSHD [2019] EWHC 2562 (Admin) [2019] 1 WLR 811 (whether statutory data protection exemption compatible with EU law); Fleming v HMRC [2008] UKHL 2 [2008] 1 WLR 195 at §24 (Lord Walker: “if national legislation infringes directly enforceable Community rights, the national court is obliged to disapply the offending provision”); R (National Council for Civil Liberties) v SSHD [2018] EWHC 975 (Admin) [2019] QB 481 at §74 (duty to disapply national legislation incompatible with directly effective EU law applying independently of jurisdiction to declare the legislation incompatible). 12.1.3 Disapplying primary legislation: akin to constitutional review. R (National Council for Civil Liberties) v SSHD [2018] EWHC 975 (Admin) [2019] QB 481 at §76 (Singh LJ and Holgate J: “These are deep constitutional waters, in which the courts of this country have been and still are feeling their way”), §77 (“this is relatively unchartered territory for courts of this country, possibly in contrast to courts in other countries which have a much longer history of constitutional adjudication in which even primary legislation can be challenged”); {P60} (constitutionality).

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12.2 HRA s.4: declaration of incompatibility (DOI). In rare cases where it is truly impossible for primary legislation to be interpreted, by virtue of HRA s.3, so that it (or secondary legislation made under it) can be ECHR-compatible, there is the last-resort remedy of a declaration of incompatibility (DOI). Although declared incompatible, the statute is not then disapplied by the Court, but the DOI will trigger a fast-track mechanism for remedial legislative action allowing amendment by Parliament. 12.2.1 DOI: HRA s.4. {P9} (the HRA); HRA s.4 (“Declaration of incompatibility. (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied – (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility. (5) In this section ‘court’ means – (a) the Supreme Court; (b) the Judicial Committee of the Privy Council; (c) the Court Martial Appeal Court; (d) …; (e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal; (f) the Court of Protection, in any matter being dealt with by the President of the Family Division, the Chancellor of the High Court or a puisne judge of the High Court. (6) A declaration under this section (‘a declaration of incompatibility’) – (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made”); Administrative Court: Judicial Review Guide (2020 edition) at §11.7. 12.2.2 DOI: notification to the Crown (s.5). HRA s.5 (“Right of Crown to intervene. (1) Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court. (2) In any case to which subsection (1) applies – (a) a Minister of the Crown (or a person nominated by him), (b) a member of the Scottish Executive, (c) a Northern Ireland Minister, (d) a Northern Ireland department, is entitled, on giving notice in accordance with rules of court, to be joined as a party to the proceedings. (3) Notice under subsection (2) may be given at any time during the proceedings. (4) A person who has been made a party to criminal proceedings (other than in Scotland) as the result of a notice under subsection (2) may, with leave, appeal to the Supreme Court against any declaration of incompatibility made in the proceedings. (5) In subsection (4) – ‘criminal proceedings’ includes all proceedings before the Court Martial Appeal Court; and ‘leave’ means leave granted by the court making the declaration of incompatibility or by the Supreme Court”); CPR 19.4A(1) (notice to the Crown); CPR PD54A §8.2 (“Where a claim is made under the Human Rights Act 1998, a direction may be made for giving notice to the Crown or joining the Crown as a party. Attention is drawn to rule 19.4A and paragraph 6 of Practice Direction 19A”); Jagoo v Bristol City Council [2019] EWCA Civ 19 [2019] PTSR 555 at §19 (absent notice to the Crown, DOI not an available remedy); R (Boots Management Services Ltd) v Central Arbitration Committee [2014] EWHC 65 (Admin) [2014] IRLR 278 at §§47-48 (no final order until opportunity to notify the Crown); Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595 [2002] QB 48 at §20 (guidance re notifying the Crown); Wilson v First County Trust Ltd [2001] QB 407 (CA adjourning appeal in consumer credit case, to allow Crown to be notified as to question whether statute compatible with Convention rights); Matthews v Ministry of Defence [2002] EWHC 13 (QB) at §51 (requirement of notice dispensed with, since Counsel for MoD able to argue the incompatibility point fully) (HL is at [2003] UKHL 4 [2003] 1 AC 1163); R (Ward) v Hillingdon LBC [2001] EWHC Admin 91 [2001] LGR 457 at §40 (court not willing to deal with statutory incompatibility issue where Crown had not been notified); R v A [2001] 1 WLR 789 (HL giving permission for minister to be joined in appeal, to consider question of compatibility, even though neither of the other parties intending to ask for DOI); R (F) v Enfield LBC [2002] EWHC 432 (Admin) [2002] 2 FLR 1 at §3 (adjournment for Secretary of 174

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State to be joined); R v Kearns [2002] EWCA Crim 748 [2002] 1 WLR 2815 at §16 (no need for joinder or service of the Crown, where Counsel acting for both the prosecution and the Secretary of State); R (Morris) v Westminster City Council [2003] EWHC 2266 (Admin) [2004] HLR 265 at §19 (although Treasury Solicitors had been served and previously indicated no wish to make representations, no notice by the court as required), §20 (adjourning questions of compatible construction (s.3) and DOI so as to ensure Crown on notice); Administrative Court: Judicial Review Guide (2020 edition) at §11.7.6. 12.2.3 DOI: remedial action. See HRA s.10 (power to take remedial action), Sch 2 (remedial orders). 12.2.4 DOI application is judicial review of primary legislation. R (National Council for Civil Liberties) v SSHD [2019] EWHC 2057 (Admin) [2020] 1 WLR 243 at §88 (“in principle an application can be made for a declaration of incompatibility of primary legislation where the nature of the allegation is that it is the legislation itself which is incompatible with the Convention rights. This is in substance a kind of constitutional review of primary legislation, so as to assess its compatibility with fundamental human rights, even though there is an important limit on the courts’ power to grant a remedy”); {P60} (constitutionality). 12.2.5 ECHR-compatibility of primary legislation: nature of the Court’s task. R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559 [2020] 2 All ER 813 at §42 (CA identifying these “propositions” as to “[t]he true nature of the exercise which the courts must perform when assessing the compatibility of primary legislation with Convention rights”, derived from Wilson v First County Trust Ltd (No 2) [2003] UKHL 40 [2004] 1 AC 816 at §§61-67: “First, the court’s task is an objective one, to assess the compatibility of the legislation with Convention rights, by reference to the well-known criteria, such as whether it has a legitimate aim and whether it conforms with the principle of proportionality. Secondly, that task has to be performed at the time when the issue comes before the court. … Thirdly, the court is not concerned with the adequacy of the reasons which were put forward by ministers or others for the legislation as it proceeded through Parliament. … What matters is whether the legislation enacted by Parliament is or is not compatible with the Convention rights”). 12.2.6 Intrinsic legislative incompatibility is relatively rare. R (National Council for Civil Liberties) v SSHD [2019] EWHC 2057 (Admin) [2020] 1 WLR 243 at §89 (Singh LJ and Holgate J: “cases where primary legislation itself is intrinsically incompatible with those rights will be relatively rare. More often primary legislation will not itself be intrinsically incompatible with the Convention rights: its application to a particular case may be in breach of the Convention rights, depending on the concrete facts. But that would not be a case where it would be appropriate or even possible to grant a declaration of incompatibility. It would be a more conventional case, in which it is argued (and may be found by a court) that the act of the executive … is in breach of section 6 of the HRA”), §90 (“it should always be recalled that all legislation, including primary legislation, must (so far as possible) be read and given effect in a way which is compatible with the Convention rights … It is well established that the obligation of interpretation in section 3 is a strong one and may require an interpretation which is not the natural interpretation of legislation and may lead, for example, to the reading of words into legislation so as to render it compatible with the Convention rights”); R v A (No 2) [2001] UKHL 25 [2002] 1 AC 45 at §44 (“A declaration of incompatibility is a measure of last resort”); {9.3} (HRA s.3: compatible interpretation); {9.4} (HRA s.6: compatible public authority action). 12.2.7 Effect of a DOI. R (National Council for Civil Liberties) v SSHD [2019] EWHC 2057 (Admin) [2020] 1 WLR 243 at §88 (“the scheme of the HRA is such that the higher courts have the power to declare primary legislation to be incompatible with the Convention rights but they have no power to strike it down or disapply it. The legislation continues to have effect unless and until it is amended or repealed. A declaration of incompatibility is not binding on the parties, let alone on Parliament. Although a declaration of incompatibility may have political or moral effect, the only legal effect of such a declaration is that it 175

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enables the government to amend the incompatible primary legislation by way of secondary legislation. … The government has a discretion as to whether it wishes to use that route to cure the incompatibility. Sometimes that route has been taken. … More often in practice it has been Parliament itself which has enacted primary legislation to remove the incompatibility which has been declared to exist by a court”); R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32 [2020] AC 1 at §60 (DOI does not oblige action); R v SSHD, ex p Simms [2000] 2 AC 115, 132A-B (after a DOI, “It will then be for the sovereign Parliament to decide whether or not to remove the incompatibility”); {9.1.11} (the HRA and legislative supremacy). 12.2.8 DOI and subordinate legislation: whether incompatibility mandated by primary legislation. JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313 at §§119, 122, 128 (ECHR-violating provision of delegated legislation cannot be lawfully applied under HRA s.6, where nothing in the primary legislation requires it or prevents its removal, and court’s duty is to treat the provision as having no effect); R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35 [2015] AC 49 at §54. 12.2.9 Statements of legislative compatibility. See HRA s.19 (“Statements of compatibility. (1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill – (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (‘a statement of compatibility’); or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill. (2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate”); R v A (No 2) [2001] UKHL 25 [2002] 1 AC 45 at §69 (statement of compatibility merely an expression of minister’s opinion; not binding); R (Animal Defenders International) v Secretary of State for Culture Media and Sport [2008] UKHL 15 [2008] 1 AC 1312 (statute compatible albeit that no statement of compatibility had been made given the Strasbourg jurisprudence). 12.2.10 DOI granted: recent illustrations. Jackson v Secretary of State for Work and Pensions [2020] EWHC 183 (Admin) [2020] 1 WLR 1441 at §66 (bereavement support payment denied to former cohabitee); In re McLaughlin [2018] UKSC 48 [2018] 1 WLR 4250 [2018] 1 WLR 4250 at §45 (DOI granted in respect of social security legislation denying widowed parent’s allowance to a surviving unmarried partner); R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32 [2020] AC 1 at §62 (DOI in respect of statutory provisions denying different-sex couples from entering civil partnership); R (K (A Child)) v SSHD [2018] EWHC 1834 (Admin) [2018] 1 WLR 6000 (DOI granted because ‘deemed father’ provision in immigration legislation Art 14-incompatible); Smith v Lancashire Teaching Hospitals NHS Trust [2017] EWCA Civ 1916 [2018] QB 804 (DOI in relation to exclusion of cohabitees from bereavement damages); R (Johnson) v SSHD [2016] UKSC 56 [2017] AC 365 at §39 (DOI in relation to a good character requirement for citizenship inapplicable had parents been married); R (Miranda) v SSHD [2016] EWCA Civ 6 [2016] 1 WLR 1505 at §119 (DOI granted that Terrorism Act 2000 Sch 7 powers having insufficient safeguards). 12.2.11 DOI granted: older illustrations. R (F (A Child) v SSHD [2010] UKSC 17 [2011] 1 AC 331 (DOI in relation to sex-offender lifelong notification requirements with no provision for review); R (Wright) v Secretary of State for Health [2009] UKHL 3 [2009] AC 739 at §38 (DOI in relation to listing as unsuitable to work with children, without the right to make representations); R (Baiai) v SSHD [2008] UKHL 53 [2009] AC 287 (upholding DOI in relation to discriminatory aspect of impugned legislation); R (Clift) v SSHD [2006] UKHL 54 [2007] 1 AC 484 (statutory bar on parole board review for long-term prisoners liable to deportation); R (Royal College of Nursing) v SSHD [2011] EWHC 2761 (Admin) [2011] PTSR 1193 (insufficient procedural safeguards in listing preventing working with children or vulnerable adults); A v SSHD [2004] UKHL 56 [2005] 2 AC 68 (detention without trial of non-nationals); Ghaidan v Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557 (including Lord Steyn’s Appendix of DOIs granted); R (Morris) v Westminster City Council [2005] 176

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EWCA Civ 1184 [2006] 1 WLR 505 (statutory disentitlement to priority housing need based on child’s immigration control status), §57 (no good reason not to make DOI); Bellinger v Bellinger [2003] UKHL 21 [2003] 2 AC 467 (statutory invalidity of marriage unless between “male and female”); R (M) v Secretary of State for Health [2003] EWHC 1094 (Admin) [2003] UKHRR 746 (statutory automatic appointment of mental health detainee’s nearest relative); R (Anderson) v SSHD [2002] UKHL 46 [2003] 1 AC 837 (Crime (Sentences) Act 1997 s.29 incompatible with Art 6); R (International Transport Roth GmbH) v SSHD [2002] EWCA Civ 158 [2003] QB 728 (immigration carrier penalty regime); R (D) v SSHD [2002] EWHC 2805 (Admin) [2003] 1 WLR 1315 (non-referral to parole board of post-tariff discretionary lifers detained on mental health grounds); R (H) v Mental Health Review Tribunal, North and East London Region [2001] EWCA Civ 415 [2002] QB 1 (statutory burden of proof in mental health case); R (Chief Constable of Lancashire) v Preston Crown Court [2001] EWHC Admin 928 [2002] 1 WLR 1332 (Crown Court rules requiring licensing justices to sit on Crown Court appeal). 12.2.12 DOI: other aspects. R (Nicklinson) v Ministry of Justice [2014] UKSC 38 [2015] AC 657 at §114 (Lord Neuberger: “It would … be unusual for a court to hold that a statutory provision, conventionally construed, infringed a Convention right and could not be construed compatibly with it, and yet to refuse to make a [DOI] under section 4 of the 1998 Act. However, there can be no doubt that there is such a power”), §343 (Lord Kerr, discussing the nature of the DOI); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 (DOI inapt where compatibility could be secured by another statute or use of common law powers); R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29 [2005] 1 WLR 1681 at §52 (no point in DOI where relevant sections now repealed); R (GC) v Metropolitan Police Commissioner [2011] UKSC 21 [2011] 1 WLR 1230 at §§46-49 (although appropriate to give Parliament some time to devise new statutory parameters, since statutory power could be read compatibly, appropriate remedy was a declaration of unlawfulness not a declaration of incompatibility); M v Secretary of State for Work and Pensions [2006] UKHL 11 [2006] 2 AC 91 (former unequal treatment for homosexual and heterosexual relationships for child support calculation was justified where law and social values were in state of transition at that time); Rushbridger v HM Attorney-General [2003] UKHL 38 [2004] 1 AC 357 (declining to entertain a hypothetical and unnecessary claim for a DOI) at §58 (Lord Rodgers: “not the function of the courts to keep the statute book up to date”), §61 (Lord Walker), §36 (Lord Hutton); In re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] Fam 377 at §§118-128 (wrong in principle, by reference to s.6(2), to treat DOI as triggering damages); Bellinger v Bellinger [2003] UKHL 21 [2003] 2 AC 467 at §55 (considering all the circumstances, in approaching the discretion as to DOI; rejecting objection that no useful purpose; here, right to “formally record that the present state of statute law is incompatible with the Convention”), §79.

12.3 Judicial review of primary legislation at common law. The strong default position is that, leaving aside EU law and the HRA, direct judicial review of primary legislation is a forbidden area. But judicial review of primary legislation is a known phenomenon and this area of law is evolving. One test of the logic of constitutional review of primary legislation concerns the constitutional inalienability of judicial review. Indirect judicial review concerning primary legislation is common. Examples are judicial review of implementation powers; and the reading down/in of primary legislation interpreted compatibly with human rights and constitutional values; or as a rectifying interpretation. 12.3.1 Legislative supremacy is a constitutional principle developed by the common law. {7.4.2} 12.3.2 Review of primary legislation: Laws LJ’s recognition of evolution. R v Lord Chancellor, ex p Witham [1998] QB 575, 581E (Laws J, emphasising that on the “present” state of the law, the common law continues to afford legislative supremacy to Parliament); R (International Transport Roth GmbH) v SSHD [2002] EWCA Civ 158 [2003] QB 728 at §71 (Laws LJ: “In its present state of evolution, the British system may be said to stand 177

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at an intermediate stage between parliamentary supremacy and constitutional supremacy”); R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin) [2011] QB 120 at §38 (Laws LJ: “the need for … an authoritative judicial source cannot be dispensed with by Parliament”); R (Chester) v Secretary of State for Justice [2010] EWCA Civ 1439 [2011] 1 WLR 1436 at §27 (Laws LJ, explaining that courts having no role to sanction government for failing to act upon a declaration of incompatibility under the HRA, but: “Of course if the failure were also to involve a violation of a constitutional fundamental recognised by the common law, the position would be entirely different”) (SC is [2013] UKSC 63 [2014] AC 271). 12.3.3 Default position: no domestic declaration of unlawfulness/suspension. HoffmannLa Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 349B-C (“the courts of law could not declare that an Act of Parliament was ultra vires”); Pickin v British Railways Board [1974] AC 765, 798F (“the courts in this country have no power to declare enacted law to be invalid”); R (Southall) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 1002 at §10 (“so far no court in the last century and more has set aside any provision of an Act of Parliament as being unlawful save in the circumstances set out in the European Communities Act”); R (Countryside Alliance) v Attorney General [2007] UKHL 52 [2008] 1 AC 719 at §134 (subject to HRA and EU law and “provided always that it follows a proper parliamentary process”, Parliament “can do whatever it likes”): {7.4} (legislative supremacy). 12.3.4 Direct judicial review of primary legislation is known to the common law. R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 at §27 (proper to investigate whether Hunting Act constituting enacted law), §51 (appropriate challenge to validity of statute, not investigating conduct of proceedings in Parliament and issue one of statutory interpretation of the Parliament Acts), §110 (justiciable because “no absolute rule that the courts could not consider the validity of a statute and … the issue … was one of statutory interpretation”); Re JR 80’s Application for Judicial Review [2019] NIQB 1 (High Court of Northern Ireland, granting permission to amend judicial review grounds) at §17 (McCloskey J: “A challenge to a measure of primary legislation … is … a matter of extreme rarity. It engages a strong principle that the supervisory jurisdiction of the High Court does not extend to impugning an Act of Parliament. However, leaving to one side the very limited statutory exceptions to this rule, it is established that this power can be exercised exceptionally via the common law”), referring to Jackson at §27 (Lord Bingham), §§73, 101-102 (Lord Steyn), §§104-110 (Lord Hope). 12.3.5 Direct constitutional review of primary legislation: open questions. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §119 (Lord Carnwath, referring to “the difficult constitutional issues which might arise if Parliament were to pass legislation purporting to abrogate or derogate from [the] principles” of “the maintenance of the rule of law … and the constitutional protection afforded by judicial review”); {P60} (constitutionality). 12.3.6 Judicial review of primary legislation: abuse of power by Parliament. Moohan v Lord Advocate [2014] UKSC 67 [2015] AC 901 at §35 (Lord Hodge: “I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful. The existence and extent of such a power is a matter of debate, at least in the context of the doctrine of the sovereignty of the United Kingdom Parliament”); Shindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469 [2017] QB 226 at §§49-50 (no common law right taking precedence over primary legislation, leaving aside abusive entrenchment). 12.3.7 Judicial review’s constitutional inalienability. {1.3}. 12.3.8 Judicial review of primary legislation: oppression/removal of judicial review etc. R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 at §102 (Lord  Steyn, 178

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querying whether Parliamentary supremacy would extend to “oppressive and wholly undemocratic legislation” such as “to abolish judicial review of flagrant abuse of power by a government or even the role of the ordinary courts in standing between the executive and citizens”, given that “the supremacy of Parliament is … a construct of the common law”), §104 (Lord Hope, referring to developing qualifications to the principle of Parliamentary sovereignty), §107 (“the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based … the courts have a part to play in defining the limits of Parliament’s legislative sovereignty”), §110 (“no absolute rule that the courts could not consider the validity of a statute”); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §51 (Lord Hope, recognising “conflicting views about the relationship between the rule of law and the sovereignty of Parliament”; and that, in the context of an Act of the Scottish Parliament at least, the response to an attempt to “abolish judicial review”: “The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise”). 12.3.9 Dual sovereignty: Parliament and the Judiciary. X Ltd v Morgan-Grampian Ltd [1991] 1 AC 1, 48E (Lord Bridge: “The maintenance of the rule of law is in every way as important in a free society as the democratic franchise. In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law”); In re F (Adult: Court’s Jurisdiction) [2001] Fam 38, 56D (Sedley J: “The relationship between [Parliament and the courts] is a working relationship between two constitutional sovereignties”, referring to R v Parliamentary Commissioner for Standards, ex p Al Fayed [1998] 1 WLR 669, 670, per Lord Woolf MR); R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 at §102 (Lord Steyn: “divided sovereignty”); R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §41 (“Originally, sovereignty was concentrated in the Crown. … However, over the centuries … Parliamentary democracy and the rule of law developed”). 12.3.10 Towards a constitutional principle of legality. {60.1.7} (the principle of legality articulated in terms of constitutional principle). 12.3.11 Judicial review of special ‘primary legislation’: prerogative orders. R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §§34-35 (conventional judicial review of prerogative Orders in Council, albeit “primary legislation”, because “founded upon the unique authority Parliament derives from its representative character”). 12.3.12 Judicial review of special ‘primary legislation’: Acts of devolved Parliaments. In re UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64 [2019] AC 1022 at §26 (recognising “judicial review on public law grounds” of an Act of the Scottish Parliament); AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §§46, 52 and 147 (Act of Scottish Parliament amenable to judicial review for ultra vires, ie action beyond the competence conferred by the Scotland Act 1998, including incompatibility with ECHR rights; but not for conventional grounds of review such as irrationality), §§149-154 (judicial review would also be available for violation of common law fundamental rights or the rule of law). 12.3.13 Judicial review and the implementation of primary legislation. R (Pritchard) v Secretary of State for Work and Pensions [2020] EWHC 1495 (Admin) at §2 (judicial review of statutory instrument bringing into force a provision of primary legislation), §122 (PSED applicable to such decisions); M v Scottish Ministers [2012] UKSC 58 [2012] 1 WLR 3386 (judicial review granted of unlawful failure to make regulations so that statute would become effective on its specified commencement date); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513 (judicial review of failure to exercise statutory power to bring Act into force); R v Secretary of State for Education and Employment, ex p Liverpool Hope University College [2001] EWCA Civ 362 [2001] ELR 552 (judicial review of statutory instrument bringing Act of Parliament into force); R (British Aggregates Associates) v Her Majesty’s Treasury 179

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[2002] EWHC 926 (Admin) [2002] EuLR 394 at §§138-140 (measures to implement primary legislation treated as justiciable). 12.3.14 Judicial review of primary legislation introduced by secondary legislation. R (British Academy of Songwriters, Composers and Authors) v Secretary of State for Business, Innovation and Skills [2015] EWHC 1723 (Admin) [2015] Bus LR 1435 (provision of primary legislation introduced by secondary legislation unlawful because no sufficient evidential basis, applying common law principles); R (ToTel Ltd) v First-tier Tribunal [2012] EWCA Civ 1401 [2013] QB 860 (insertion of subsection into Act of Parliament by means of a statutory instrument was ultra vires the statutory power and so unlawful); R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531. 12.3.15 Reading down/in and constitutional rights and values: principle of legality. {P7} (constitutional fundamentals); {P35} (principle of legality). 12.3.16 Rectifying construction: altered language effecting Parliament’s intention. {29.1.8)

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P13 Judicial restraint. The reviewing Court adopts a primary position of self-restraint, with ‘soft’ reasonableness review respecting the latitude for public authority judgment. 13.1 ‘Soft’ review: reasonableness standard 13.2 Restraint and factual appreciation 13.3 Restraint and discretion/judgment 13.4 Restraint and expertise 13.5 Judicial restraint in action 13.6 Review from the decision-maker’s point of view

13.1 ‘Soft’ review: reasonableness standard.27 Public authorities have important roles and functions, entrusted to them to discharge as they think right. There must necessarily be questions which it is for them to decide, and not for judges to ‘second-guess’. Judicial ‘vigilance’ is needed under the rule of law, but judicial ‘restraint’ is as necessary, because of the limits of ‘law’ and under the separation of powers. In considering whether a public authority has abused its powers, Courts must not abuse theirs. There are three categories of question: (1) those rare questions which are non-reviewable or ‘non-justiciable’; (2) ‘soft’ questions, reviewable on a reasonableness standard; and (3) ‘hard-edged’ questions, reviewable on a correctness standard. ‘Soft’ review affords the decision-maker a ‘latitude’ or ‘area of judgment’. That is the essence of the reasonableness standard of review: it is review with built-in latitude. 13.1.1 ‘Latitude’/‘built-in latitude’. R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §58 (Lady Hale and Lord Reed: “the Government must be accorded a great deal of latitude in making decisions of this nature”); Packham v Secretary of State for Transport [2020] EWCA Civ 1004 at §87 (Lindblom, Haddon-Cave and Green LJJ: “the statutory and policy arrangements … leave the Government a good deal of latitude in the actions it takes”); BDW Trading v Secretary of State for Communities and Local Government [2016] EWCA Civ 493 [2017] PTSR 1337 at §§25, 27 (referring to the “latitude for decision-makers”); R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32 [2020] AC 1 at §29 (Lord Kerr, speaking of HRA review: “The court may … decide that a measure of latitude should be permitted in appropriate cases”); R (Patel) v Lord Chancellor [2010] EWHC 2220 (Admin) at §38 (“the Lord Chancellor is entitled to a built-in latitude”), cited in R (Public Law Project) v Lord Chancellor [2016] UKSC 39 [2016] AC 1531 (CA) at §33; Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §36 (“latitude”, to describe the margin of discretion applicable under the HRA); R (G) v Barnet LBC [2003] UKHL 57 [2004] 2 AC 208 at §15 (statutes affording local authorities “latitude”); R (Mullen) v SSHD [2004] UKHL 18 [2005] 1 AC 1 at §12 (Secretary of State enjoying some “latitude” in administering an gratia scheme). 13.1.2 Issues of substance: Court’s role is limited. R (Talpada) v SSHD [2018] EWCA Civ 841 at §64 (Singh LJ: “Normally public law is not concerned with the substance of public decisions. Judicial review has a very important role to play in the maintenance of the rule of law in this country but the role of the courts, however important, is a limited one. Our role is principally to correct errors of law made by public authorities and ensure that fair procedures have been complied with. This is why the courts will correct, for example, a misdirection of

27The

equivalent paragraph in a previous edition was relied on in R (Ferriday) v Chief Constable of Gwent [2009] EWHC 2083 (Admin) at §12 (HHJ Jarman QC). The phrase “review with built-in latitude” was relied on in R (Levy) v Environment Agency [2002] EWHC 1663 (Admin) [2003] Env LR 245 at §23 (Silber J); R (Baci Bedfordshire Ltd) v Environment Agency [2018] EWHC 2962 (Admin [2019] Env LR 15 at §44 (Lang J).

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law by a public authority; will ensure that all relevant considerations are taken into account; that irrelevant considerations are not taken into account; and will insist upon procedural fairness where the duty to act fairly applies. This is also why the remedy which will usually be granted when an application for judicial review succeeds is a quashing order or some other remedy which has the result that the matter is remitted to the public authority concerned, so that it can reconsider its decision in accordance with law and after complying with relevant procedural requirements. What the outcome should be on reconsideration is usually not a matter for the court. It is rare for the court to substitute its own view for what the substantive decision should actually be. Usually the only basis on which the court can concern itself with the substance of the decision is irrationality. (For this purpose I put to one side issues which may arise under European Union law or under the Human Rights Act 1998, when the task of the court may be different.)”). 13.1.3 Judicial restraint has a constitutional basis. {7.3.1} (separation of powers as a constitutional principle); R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §47 (Lady Hale and Lord Reed: “The principle of Parliamentary accountability has been invoked time and again throughout the development of our constitutional and administrative law, as a justification for judicial restraint as part of a constitutional separation of powers”); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §36 (“The basic constitutional theory on which the [judicial review] jurisdiction rests confines the court to determining whether the decision was a lawful exercise of the relevant public function”); R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 250H-251A (Lord Scarman: “Judicial review is a great weapon in the hands of the judges: but the judges must observe the constitutional limits set by our parliamentary system upon their exercise of this beneficent power”); R v Inland Revenue Commissioners, ex p Rossminster [1980] AC 952, 1027D-E (Lord Scarman, referring to “the fundamental limits of the judicial function”); Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521, 529G (“The exploitation and extension of remedies such as judicial review beyond their proper sphere should not be encouraged”); R v Independent Television Commission, ex p TSW Broadcasting Ltd [1994] 2 LRC 414, 430d (Lord Templeman: “judicial review should not be allowed to run riot”); R v Crown Court at Manchester, ex p McDonald [1999] 1 WLR 841, 850H-851A (Lord Bingham CJ: “This court[’s] … only role, as in any other application for judicial review, is to see whether the decision in question is open to successful challenge on any of the familiar grounds which support an application for judicial review”; not to “trespass into a field of judgment which is reserved to the court of trial”). 13.1.4 Parliament, the executive and the Courts: mutual respect. In re McFarland [2004] UKHL 17 [2004] 1 WLR 1289 at §7 (Lord Bingham: “Just as the courts must apply Acts of Parliament whether they approve of them or not, and give effect to lawful official decisions whether they agree with them or not, so Parliament and the executive must respect judicial decisions whether they approve of them or not, unless and until they are set aside”); R v HM Treasury, ex p Smedley [1985] QB 657, 666C-D (Sir John Donaldson MR: “it is a constitutional convention of the highest importance that the legislature and the judicature are separate and independent of one another, subject to certain ultimate rights of Parliament over the judicature which are immaterial for present purposes. It therefore behoves the courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament or, so far as this can be avoided, even appearing to do so. … I would hope and expect that Parliament would be similarly sensitive to the need to refrain from trespassing upon the province of the courts”); {34.4.6} (judicial review and proceedings in Parliament: Parliamentary privilege (Bill of Rights)). 13.1.5 Restraint: institutional competence/allocation of responsibility. R (SC) v Secretary of State for Work and Pensions [2019] EWCA Civ 615 [2019] 1 WLR 5687 at §87 (“in matters of social and economic policy … the democratically elected branches of government are in principle better placed than the courts to decide what it in the public interest”); R (Miranda) v SSHD [2016] EWCA Civ 6 [2016] 1 WLR 1505 at §79 (Lord Dyson MR: “When determining the proportionality of a decision taken by the police in the interests of 182

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national security, the court should accord a substantial degree of deference to their expertise in assessing the risk to national security and in weighing it against countervailing interests. This is because the police have both the institutional competence and the constitutional responsibility to make such assessments and decisions … they are ultimately accountable to Parliament and the constitutional responsibility for the protection of national security lies with the elected government”); R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §68 (Lord Neuberger: “The weight to be given to the decision must depend on the type of decision involved, and the reasons for it. There is a spectrum of types of decision, ranging from those based on factors on which judges have the evidence, the experience, the knowledge, and the institutional legitimacy to be able to form their own view with confidence, to those based on factors in respect of which judges cannot claim any such competence”); R (Nicklinson) v Ministry of Justice [2014] UKSC 38 [2015] AC 657 at §167 (Lord Mance: “institutional competence is important in the context of judgments made on issues of proportionality”); R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16 [2015] 1 WLR 1449 at §92 (Lord Reed: “certain matters are by their nature more suitable for determination by Government or Parliament than by the courts”); R (GC) v Metropolitan Police Commissioner [2011] UKSC 21 [2011] 1 WLR 1230 at §43 (Lord Dyson: “There are circumstances in which institutional competence is a factor in the court’s deciding the extent to which it should pay ‘deference’ to a decision of the executive and allow a discretionary area of judgment”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §58 (“Policy as to the expenditure of public resources and the security and diplomatic interests of the Crown are peculiarly within the competence of the executive”). 13.1.6 Allocation of responsibilities: the importance of a principled approach. R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23 [2004] 1 AC 185 at §76 (Lord Hoffmann: “the courts themselves often have to decide the limits of their own decisionmaking power. That is inevitable. But it does not mean that their allocation of decision-making power to the other branches of government is a matter of courtesy or deference. The principles upon which decision-making powers are allocated are principles of law. The courts are the independent branch of government and the legislature and executive are, directly and indirectly respectively, the elected branches of government. Independence makes the courts more suited to deciding some kinds of questions and being elected makes the legislature or executive more suited to deciding others. The allocation of these decision-making responsibilities is based upon recognised principles. The principle that the independence of the courts is necessary for a proper decision of disputed legal rights or claims of violation of human rights is a legal principle. It is reflected in article 6 of the Convention. On the other hand, the principle that majority approval is necessary for a proper decision on policy or allocation of resources is also a legal principle. Likewise, when a court decides that a decision is within the proper competence of the legislature or executive, it is not showing deference. It is deciding the law”); R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §22 (Lord Sumption: “As a tool for assessing the practice by which the courts accord greater weight to the executive’s judgment in some cases than in others, the whole concept of ‘deference’ has been subjected to powerful academic criticism. … At least part of the difficulty arises from the word, with its overtones of cringing abstention in the face of superior status. In some circumstances, ‘deference’ is no more than a recognition that a court of review does not usurp the function of the decision-maker, even when Convention rights are engaged. Beyond that elementary principle, the assignment of weight to the decision-maker’s judgment has nothing to do with deference in the ordinary sense of the term. It has two distinct sources. The first is the constitutional principle of the separation of powers. The second is no more than a pragmatic view about the evidential value of certain judgments of the executive, whose force will vary according to the subject-matter”). 13.1.7 Restraint: matters entrusted to the public authority. R v SSHD, ex p Launder [1997] 1 WLR 839, 857D (question “entrusted to the Secretary of State by Parliament”); R v SSHD, ex p Brind [1991] 1 AC 696, 766H (“The decision-makers, very often elected, are those to whom Parliament has entrusted the discretion”); R v Governor of Pentonville Prison, ex p 183

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Azam [1974] AC 18, 64C (“the decision whether to remove or not is made by the Secretary of State”); Re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791, 797C (“If Parliament in an area of concern defined by statute … prefers power to be exercised administratively instead of judicially, so be it”); Begum v Tower Hamlets LBC [2003] UKHL 5 [2003] 2 AC 430 at §56 (referring to “areas of the law such as regulatory and welfare schemes in which decisionmaking is customarily entrusted to administrators”), §104. 13.1.8 Why restraint is important: a lesson from 1925. A piece of public law history worthy of reflection: in Roberts v Hopwood [1925] AC 578 (3 April 1925) the House of Lords characterised as unreasonable and unlawful a new local authority policy intended to promote a minimum wage and equal pay for men and women, describing such a policy (at 594) as “guided … by some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages in the world of labour”. Cf {14.1.20} (why vigilance is important: a lesson from 1995).

13.2 Restraint and factual appreciation. Traditionally, a classic situation recognised for judicial restraint has been where a defendant public authority is criticised for its conclusion or appreciation of matters of ‘fact’, or ‘fact and degree’. The default position has been that Courts will not interfere by judicial review on the basis that the reviewing Court would have, or would now, appraise the facts differently from the way the primary decision-making authority did. That is so, whether the defendant public authority is part of the executive, or is an ‘inferior court’. However, certain factual errors can be a basis for judicial review. 13.2.1 Questions of factual appreciation: restraint. Sharif v Camden LBC [2013] UKSC 10 [2013] PTSR 343 at §17 (Lord Carnwath, referring to “an issue of fact, or of factual judgment, for the authority. Short of irrationality it is unlikely to raise any issue of law for the court”); Bowen-West v Secretary of State for Communities & Local Government [2012] EWCA Civ 321 [2012] Env LR 448 at §45 (Laws LJ: “the merits issues in this case are for the factual judgment of the Secretary of State”); Edwards v Bairstow [1956] AC 14, 38-39 (Lord Radcliffe: courts’ “duty is no more than to examine those facts with a decent respect for the tribunal … and if they think that the only reasonable conclusion on the facts found is inconsistent with the determination come to, to say so without more ado”); R v Director General of Telecommunications, ex p Cellcom Ltd [1999] ECC 314 at §27 (“The resolution of disputed questions of fact is for the decision-maker, and the Court can only interfere if his decision is perverse eg. if his reasoning is logically unsound”). 13.2.2 Questions of fact: the former extreme restraint. R v Hillingdon LBC, ex p Puhlhofer [1986] AC 484, 518D-E (Lord Brightman: “Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely”); Poshteh v Kensington and Chelsea Royal LBC [2017] UKSC 36 [2017] AC 624 at §42 (“the highly restrictive approach” in Puhlhofer recognised as “no longer necessary or appropriate” to homelessness challenges now made under “a statutory right of appeal to the county court”); R v Brighton and Hove Borough Council, ex p Nacion (1999) 11 Admin LR 472 (CA expressing “reservations as to how far those comments of Lord Brightman are of general application”). 13.2.3 The fact/law distinction.28 R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §134 (Lord Carnwath, explaining how “judicial thinking has moved on, recognising that the division between fact and law is not always clear-cut, and

28The

equivalent paragraph in a previous edition was relied on in Groupe Eurotunnel SA v Competition Commission [2013] CAT 30 at §48.

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that a more ‘pragmatic’ approach may sometimes be required”, referring to R (Jones) v Firsttier Tribunal [2013] UKSC 19 [2013] 2 AC 48 at §16; Ravat v Halliburton Manufacturing & Services Ltd [2012] UKSC 1 [2012] 2 All ER 905 at §§28-29 (Lord Hope, explaining that the strength of connection between Great Britain and an employment relationship was “a question of fact and degree”; whereas “whether, on given facts, a case falls within [the statutory provision] is a question of law, but it is also a question of degree”); R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309, 341B-C (Lord Scarman: “If a local education authority gets the law right …, the question of fact … is for the authority, not the court, to decide”); {48.1.7} (fact/law: a flexible policy-informed approach); {16.3} (error of law as hard-edged review). 13.2.4 Questions of ‘fact and degree’. R v Monopolies & Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763, 771B (“a question of fact and degree” described as “supremely a matter for the commission”), 777H (“a question of fact and degree for the judgment of the commission”); R (Cherwell District Council) v First Secretary of State [2004] EWCA Civ 1420 [2005] 1 WLR 1128 at §§50 and 57 (questions of “fact and degree”, where conclusion would need to be “outside the bounds of reasonable judgment”); R v Broadcasting Complaints Commission, ex p Granada Television Ltd [1995] 3 EMLR 163 (Parliament “considered it more appropriate that the difficult questions of fact and degree, and the value of judgment … are best left to a specialist body, such as the BCC, whose members have experience of broadcasting”); R v Yorkshire Regional Health Authority, ex p Suri (1995) 30 BMLR 78, 81-82 (“Provided the proper approach is adopted, the answer … will inevitably become a question of fact and degree eminently suitable to resolution by a committee of laymen, and not susceptible to sophisticated legal analyses”). 13.2.5 Error of fact as a ground for judicial review. {P49} (error of fact).

13.3 Restraint and discretion/judgment. A classic area requiring restraint on the part of the judicial review Court is where a public body has a ‘discretion’ or ‘judgment’ which is being impugned. Discretion is never ‘unfettered’. Moreover, even if the power is ‘at large’ to involve an autonomous choice of action, the public authority will usually need to act based on its view of the ‘merits’. It is often best to speak of a public authority evaluating the merits of choices as exercising a ‘judgment’. On matters of ‘discretion’ and ‘judgment’, the Courts’ general starting-point is and must be that such matters are for the primary decision-making authority (the defendant) to evaluate and decide for itself. 13.3.1 Discretion. {P39} (discretion/duty); {39.3.9} (statutory formulae: ‘may’); {39.1} (no unfettered powers); {13.1} (‘soft’ review: reasonableness standard). 13.3.2 ‘Judgment’ and ‘discretion’. R (Delta Merseyside Ltd) v Knowsley MBC [2018] EWHC 757 (Admin) at §42 (Kerr J: “It is unfortunately part of judicial life that one frequently hears the word ‘discretion’ lazily misused. Here, the issue of the licence is a mandatory consequence of a finding that an applicant is a fit and proper person”); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2016] UKSC 35 [2017] AC 300 at §6 (Lord Mance, distinguishing between “evaluative” and “discretionary” aspects); R (Hambleton) v Coroner for the Birmingham Inquests (1974) [2018] EWCA Civ 2081 [2019] 1 WLR 3417 at §49 (CA, considering the “dichotomy between judgment and discretion”, each attracting “the ordinary constraints of judicial review”); Flood v Times Newspapers Ltd [2010] EWCA Civ 804 [2011] 1 WLR 153 at §46 (Lord Neuberger MR, explaining the difference between “a value judgment or balancing exercise” and “a discretion”); R (FDA) v Secretary of State for Work and Pensions [2012] EWCA Civ 332 [2013] 1 WLR 444 at §41 (Lord Neuberger MR, referring to questions which are “within the limits of rationality … a matter of opinion and judgment”); Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 [2012] PTSR 983 at §§19-20 (Lord Reed, explaining that the application of a planning policy involving exercise of “judgment”); R (Singh) v Cardiff City Council [2012] EWHC 1852 (Admin) at §70 (Singh J, explaining that statutory power based on “reasonable cause” “is not a pure exercise of discretion, it is rather an exercise which calls for judgment to be performed on whether the statutory question has been answered”); R v SSHD, ex p Yousaf [2000] 3 All ER 649 at §48 185

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(Sedley LJ: “Although it is described in other authorities as a discretion, the word ‘discretion’ is most apt to describe a circumscribed area of decision-making which depends on an often incommunicable sense of what is fair rather than on the kind of reasoning which characterises judgment. Statutes constitutive of public authority rarely create a true discretion in this sense. They generally give ministers authority to do things at their own election in order to promote … the policy and objects of the statute”); R (Osborn) v Parole Board [2010] EWCA Civ 1409 [2011] UKHRR 35 at §58 (Sedley LJ, questioning “whether discretion is the correct word” for what “are, or ought to be, exercises of judgment”) (SC is [2013] UKSC 61 [2014] AC 1115); Rushbridger v HM Attorney-General [2003] UKHL 38 [2004] 1 AC 357 at §20 (Lord Steyn, referring to the difference between discretion and judgment in the context of whether to entertain a claim for a declaration of the criminal legality of proposed conduct {24.2.16}); R (Tofik) v Immigration Appeal Tribunal [2003] EWCA Civ 1138 at §17 (IAT’s decision as to extension of time for appeal not a discretion but a judgment); {39.1.6} (‘discretion’ or evaluative ‘judgment’). 13.3.3 ‘Discretion’: choice /room for reasonable disagreement. Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1064 (Lord Diplock: “The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred”), cited in R v Secretary of State for the Environment, ex p Nottinghamshire County Council [1986] AC 240, 248E-F (Lord Scarman); Hill v Chief Constable of West Yorkshire [1989] AC 53, 59D-F (Lord Keith). 13.3.4 Discretion/judgment: principled need for judicial restraint/respect. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §136 (describing requirements which “leave the authority with a wide range of autonomous judgment”); R (Hambleton) v Coroner for the Birmingham Inquests (1974) [2018] EWCA Civ 2081 [2019] 1 WLR 3417 at §48 (coroner’s decision on scope involves the “coroner’s view about what it necessary, desirable and proportionate by way of investigation to enable the statutory functions to be discharged. These are not hard-edged questions. … A court exercising supervisory jurisdiction can interfere with such a decision only if it is infected with a public law failing”); R (John-Baptiste) v DPP [2019] EWHC 1130 (Admin) at §22 (“the fact that different people with great expertise and experience came to different conclusions … confirms that more than one view could be taken on the evidence”) R (KM) v Cambridgeshire County Council [2012] UKSC 23 [2012] PTSR 1189 at §36 (Lord Wilson: “respect must be afforded to the distance between the functions of the decision-maker and of the reviewing court”); Chertsey Urban District Council v Mixnam’s Properties Ltd [1965] AC 735, 753G-754A (where “Parliament … hands over the power of control to local authorities in general terms which imply full confidence in their use of their discretion, a court of law has no right to approach the question of the validity of some exercise of it with an a priori belief or intuition as to what Parliament is likely to have intended to allow”); Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521, 528C (matter “for the defendant and nobody else to decide in its discretion”); Julius v Bishop of Oxford (1880) 5 App Cas 214, 247 (Lord Blackburn, explaining that any decision-maker is human “and being human may misuse any discretion entrusted to them; but so are Judges”); Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at §12 (“issues of academic or pastoral judgment … may be unsuitable for adjudication in the courts”). 13.3.5 Statutory discretion: ‘soft’ nature of review. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 228 (“an exercise of … discretion can only be challenged in the courts in a strictly limited class of case”); Cocks v Thanet District Council [1983] 2 AC 286, 292F (judicial review on “strictly limited grounds”); Chertsey Urban District Council v Mixnam’s Properties Ltd [1965] AC 735, 761A (describing “functions entrusted to them by Parliament. Courts should not be astute to find they have acted outside the scope of their powers. They should be supported if possible”). 13.3.6 Restraint and questions of ‘educated prediction’. R (Lasham Gliding Society Ltd) v Civil Aviation Authority [2019] EWHC 2118 (Admin) at §53, applying R v Director General 186

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of Telecommunications, ex p Cellcom Ltd [1999] ECC 314 at §26 (“if … the Court should be very slow to impugn decisions of fact made by an expert and experienced decision-maker, it must surely be even slower to impugn his educated prophesies and predictions for the future”); SSHD v Rehman [2001] UKHL 47 [2003] 1 AC 153 at §22 (deportation conducive decision “an executive judgment” having regard to “precautionary and preventative principles”); R (London and Continental Stations and Property Ltd) v Rail Regulator [2003] EWHC 2607 (Admin) at §34 (“predictions for the future incapable of any exact measurement”).

13.4 Restraint and expertise.29 Another classic context warranting judicial restraint is where the question being addressed falls within the particular specialism or expertise of the public authority. Here, the general restraint is reinforced by the insight that the primary decision-maker is especially well-placed to evaluate matters falling within its area of specialist expertise, and the judicial review Court especially disadvantaged. 13.4.1 Public authority’s expertise/knowledge/experience. Ross v Secretary of State for Transport [2020] EWHC 226 (Admin) [2020] PTSR 799 at §77 (Dove J: “it is not the role of the court to embark on its own technical appraisal of the issues. The court must recognise and respect the expertise which has been brought to bear in reaching the decision”); R (Friends of the Earth) v Environment Agency [2019] EWHC 25 (Admin) [2019] PTSR 1020 at §44 (“irrationality” as “a high hurdle” where “challenging the decision of the expert regulator in a complex technical field”); R (Adams) v Secretary of State for Justice [2018] EWHC 3766 (Admin) at §40 (expertise as to escape risk classification); R (Miranda) v SSHD [2016] EWCA Civ 6 [2016] 1 WLR 1505 at §79 (“When determining the proportionality of a decision taken by the police in the interests of national security, the court should accord a substantial degree of deference to their expertise in assessing the risk to national security and in weighing it against countervailing interests”); R (Great North Eastern Railway Ltd) v Office of Rail Regulation [2006] EWHC 1942 (Admin) at §39 (referring to “the ORR’s expertise in this highly technical field” which “the Court would be very slow indeed to impugn”); Presho v Insurance Officer [1984] 1 AC 310, 318F (referring to “a question of fact of a kind which insurance officers, local tribunals and the commissioner are, by reason of their wide knowledge and experience of matters pertaining to industrial relations, exceptionally well qualified to answer”); R v Social Fund Inspector, ex p Ali (1994) 6 Admin LR 205, 210E (“when Parliament entrusts an expert body of people … with the task of fulfilling the intentions of Parliament in a specialist sphere, the courts should be very slow to interfere”); Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230 (matters “which the knowledge and experience of that authority can best be trusted to deal with”); R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 864E-F (“unique knowledge of fiscal practices and policy”). 13.4.2 Public authority having no special expertise. R (Gwynt-y-Mor Offshore Wind Farm Ltd) v Gas and Electricity Markets Authority [2019] EWHC 654 (Admin) [2019] ACD 54 at §§85-88 (May J, declining to take “an overly hands-off approach” where defendant “was not an expert” on the issue). 13.4.3 Court’s lack of expertise. R (Ahmad) v Newham LBC [2009] UKHL 14 [2009] 3 All ER 755 at §22 (Lady Hale: “where the question is one of overall policy, as opposed to individual entitlement, it is very unlikely that judges will have the tools available to make the choices which Parliament has required a housing authority to make”), §46 (Lord Neuberger: “it seems unlikely that the legislature can have intended that Judges should embark on the exercise of telling authorities how to decide on priorities as between applicants in need of rehousing, save in relatively rare and extreme circumstances”); {17.6} (expert evidence in judicial review).

29The

equivalent paragraph in a previous edition was relied on in HKAOA v DGCA [2009] HKCFI 527 at §76 (Hon A Cheung J).

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13.4.4 Defendant public authority relied on experts. R (Christian Concern) v Secretary of State for Health and Social Care [2020] EWHC 1546 (Admin) [2020] ACD 84 at §30 (Singh LJ: relevant that defendant “had access to internal expert advice and the views of external bodies”, in deciding “whether there was material before the defendant on which it could rationally be decided that the approval should be made”); R (Swire) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin) at §61 (Lang J: “Where a screening decision is based on the opinion of experts, which is relevant and informed, the decision-maker is entitled to rely upon their advice. … Where a statutory regulator makes a decision based upon an evaluation of scientific, technical and predictive assessments, the Court should afford the decision-maker an enhanced margin of appreciation”); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756 at §40 (defendant “obliged and entitled to rely on the expert assessments of others”); R v Council of Legal Education, ex p Eddis (1995) 7 Admin LR 357, 380E-H (“central” significance of fact that defendant “consulted experts at every stage”); R v Secretary of State for Health, ex p Eastside Cheese Company [1999] EuLR 968, 987G (“on public health issues which require the evaluation of complex scientific evidence, the national court may and should be slow to interfere with a decision which a responsible decision-maker has reached after consultation with its expert advisers”); R (D2M Solutions Ltd) v Secretary of State for Communities and Local Government [2017] EWHC 3409 (Admin) [2018] PTSR 1125 at §§45-48 (Secretary of State’s reliance on expert view of advisers undermined where the expert view was “a generalised assertion” and “subjective opinion or hypothesis”); and recall R v Ministry of Defence, ex p Smith [1996] QB 517, 558A-B (policy “supported … by those to whom the ministry properly looked for professional advice”, as to which see Smith and Grady v United Kingdom (1999) 29 EHRR 493). 13.4.5 Specialised tribunal/body. {42.1.5} (expert tribunals/decision-makers/courts: caution before finding misdirection); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §§117-120 (specialist risk evaluation by parole board); Department for Work and Pensions v Information Commissioner [2016] EWCA Civ 758 [2017] 1 WLR 1 at §34 (Lloyd Jones LJ, referring to “the respect which is naturally paid to the decisions of a specialist tribunal in an area where it possesses a particular expertise”); R (Bishop’s Stortford Civic Federation) v East Hertfordshire District Council [2014] EWCA Civ 348 (Admin) [2014] PTSR 1035 (planning committee analogous to expert tribunal); Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading [2002] EWCA Civ 796 [2002] 4 All ER 376 at §34 (Buxton LJ, speaking of “findings, as the conclusion of an expert and specialist tribunal, specifically constituted by Parliament to make judgements in an area in which judges have no expertise, they fall exactly into … an area which this court would be very slow indeed to enter”); R (Kwik-fit Ltd) v Central Arbitration Committee [2002] EWCA Civ 512 at §2 (Central Arbitration Committee treated as an expert tribunal in a specialist area); R v London Metal Exchange Ltd, ex p Albatros Warehousing BV 31 March 2000 unreported at §57 (LME appeal committee “an expert body which was well placed to assess the needs of the market, the impact of a breach of the rules and what was required in order to deter future breaches and secure confidence in the market”); R (Levy) v Environment Agency [2002] EWHC 1663 (Admin) [2003] Env LR 245 at §§77-79 (Environment Agency’s expertise as to pollution control); R (London and Continental Stations and Property Ltd) v Rail Regulator [2003] EWHC 2607 (Admin) at §29 (Moses J: “[The Rail Regulator] is better placed than a court to make an overall assessment of what is in the interest of the rail network … [which] explains why the court has limited scope for intervention”), §34 (“expert and experienced”). 13.4.6 Specialised judgment/predictive assessment. R (BACI Bedfordshire Ltd) v Environment Agency [2019] EWCA Civ 1962 [2020] Env LR 16 at §§87-88 (in the absence of “some conspicuous factual or scientific error”, “the scientific integrity of the [defendant]’s assessment is not for the court to explore beyond the normal scope of a public law challenge. It is not the court’s duty to substitute its own view for the [defendant]’s exercise of scientific, technical or predictive judgment. Unless the decision is based on an unlawful exercise of judgment, or manifests some other distinct legal error, the court will not interfere”), §§99-100; R (MacDonald) v Secretary of State for Environment, Food and Rural Affairs [2019] 188

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EWHC  1783 (Admin) [2019] ACD 97 at §§113-117 (restraint and scientific assessments); R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §32 (Lord Sumption: “there are cases where the rationality of a decision is the only criterion which is capable of judicial assessment. This is particularly likely to be true of predictive and other judgmental assessments, especially those of a political nature. Such cases often involve a judgment or prediction of a kind whose rationality can be assessed but whose correctness cannot in the nature of things be tested empirically”); R (Mwanza) v Greenwich LBC [2010] EWHC 1462 (Admin) [2011] PTSR 965 at §95 (as to assessment of need for care and attention, “the courts will give considerable respect to the professional judgment of the local authority in question”); R (Mabanaft Ltd) v Secretary of State for Energy & Climate Change [2009] EWCA Civ 224 at §48 (“In any assessment of proportionality in a technical field, the court must allow a proper margin of discretion to the decision maker, because of the complexity of the assessment he is called upon to make in this field. … The court therefore exercises restraint in reviewing any decision of this kind”); R (Campaign to End All Animal Experiments) v SSHD [2008] EWCA Civ 417 at §1 (“scientific judgment is not immune from lawyers’ analysis. But the court must be careful not to substitute its own inexpert view of the science for a tenable expert opinion … the court should be very slow to conclude that this expert and experienced Chief Inspector reached a perverse scientific conclusion”); R v Hampshire County Council, ex p W [1994] ELR 460, 472A (“a question of professional judgment upon which a court of law would embark at the peril of everybody concerned”); R (Assisted Reproduction and Gynaecology Centre) v Human Fertilisation and Embryology Authority [2002] EWCA Civ 20 [2003] 1 FCR 266 at §15 (“It is not the function of the court to enter the scientific debate, nor is it the function of the court to adjudicate on the merits of the [defendant]’s decisions or any advice it gives”), §65.

13.5 Judicial restraint in action. Principled restraint by the Court is a strong theme of judicial review. Absent a public law wrong, demonstrated in a judicial review challenge approached within the rules and with appropriate procedural rigour, the Court should not interfere. That means public authorities are properly protected, appropriately respected and allowed to get on with their job without judicial interference. The case law is replete with aspects and practical examples of judicial restraint. 13.5.1 Judicial review: principal protections for public authorities. {P26} delay; {P21} (the permission stage); {P38} (standing); {P4} (materiality); {27.3} (‘procedural exclusivity’: abuse of process); {24.3} (remedy as a discretionary matter); {3.1} (procedural rigour); {4.6.4} (whether to let proceedings run their course); {36.4.9} (whether flaw curable by future steps). 13.5.2 Judicial restraint: expenditure/resources/distribution. JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313 at §111 (Leggatt LJ: “what level of resources to allocate to the criminal injuries compensation scheme and how to allocate those resources are pre-eminently choices for the Secretary of State with the approval of Parliament. Nevertheless, that freedom of choice is not completely unconstrained. … Although a wide margin is accorded to the Secretary of State in choosing how to allocate the funds made available for paying compensation to victims of crime, those funds must be allocated according to some rational set of criteria and not in a wholly arbitrary way”); R (MK) v SSHD [2019] EWHC 3573 (Admin) [2020] 4 WLR 37 (rejecting a claim alleging systemic delays in asylum decision-making) at §§114-115 (Saini J, describing the question whether “more resources should be devoted” as “not an argument of law but of policy. The courts are neither institutionally competent, nor endowed with appropriate expertise, to enable them to prescribe a judicially invented standard long-stop for all … claims or to decree how much in terms of resources should be deployed by Government”); R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6 [2015] PTSR 322 at §61 (Lord Neuberger: “The courts have no more constitutionally important duty than to hold the executive to account by ensuring that it makes decisions and takes actions in accordance with the law. And that duty applies to decisions as to allocation of resources just as it applies to any other decision. However … the duty has to be exercised bearing in mind that the executive is the primary decision-maker, and that it 189

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normally has the information, the contextual appreciation, the expertise and the experience which the court lacks. The weight to be given to such factors will inevitably depend on all the circumstances”), §62 (“The importance of according proper respect to the primary decisionmaking function of the executive is particularly significant in relation to a high level financial decision. … That is because it is a decision which the executive is much better equipped to assess than the judiciary, as (i) it involves an allocation of money, a vital and relatively scarce resource, (ii) it could engage a number of different and competing political, economic and social factors, and (iii) it could result in a large number of possible outcomes, none of which would be safe from some telling criticisms or complaints”), §22 (Lord Sumption); R (Patel) v Lord Chancellor [2010] EWHC 2220 (Admin) at §38 (“Judicial restraint … is underpinned by the separation of powers which means that the Lord Chancellor is entitled to a built-in latitude (or margin of discretion) in this decision making, given the significant expenditure of public funding at stake and the need to balance the wider public interest”), §39 (“a substantial degree of latitude must be due … in respect of the kind of funding decision with which this application is concerned”); {31.2.6} (limited resources/allocating resources); R v Secretary of State for the Environment, ex p Hammersmith & Fulham LBC [1991] 1 AC 521, 593F (Lord Bridge: “What is the appropriate level of public expenditure and public taxation is, and always has been, a matter of political opinion”); {32.1.9} (Westminster-approved measures: whether modified review); {32.1.10} (national economic policy: whether modified review); cf R (Otley) v Barking and Dagenham NHS Primary Care Trust [2007] EWHC 1927 (Admin) (unreasonable to refuse cancer drug); R (Walker) v Secretary of State for Justice [2009] UKHL 22 [2010] 1 AC 553 (unlawful not to fund adequate offending behaviour courses in prisons); {64.3.15} (reasons and resources). 13.5.3 Judicial restraint: exercise of planning judgment. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §177 (“This was a classic exercise of planning judgment”); R (East Begholt Parish Council) v Babergh District Council [2019] EWCA Civ 2200 at §47 (“The court will not intrude into the territory of planning judgment, which is the exclusive domain of the decision-maker”); Mansell v Tonbridge District Council [2017] EWCA Civ 1314 [2019] PTSR 1452 at §41 (“[The] court … must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court. … The courts must keep in mind that the function of planning decision-making has been assigned by Parliament, not to judges, but – at a local level – to elected councilors with the benefit of advice given to them by planning officers, most of whom are professional planners, and – on appeal – to the Secretary of State and his inspectors”); R (Asda Stores Ltd) v Leeds City Council [2019] EWHC 3578 (Admin) [2020] PTSR 874 at §33 (“irrationality is a particularly high test in the planning context”); Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780H (“matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State”). 13.5.4 Judicial restraint: socio-economic policy. In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §49 (Lord Kerr: “it may be appropriate to accord a wide margin of discretionary judgment to the conclusion of a decision-maker, particularly where it is the legislature that makes the choice and where the conclusion lies within the field of socio-economic policy”), §64 (“Where a conscious, deliberate decision by a government department is taken on the distribution of finite resources, the need for restraint on the part of a reviewing court is both obvious and principled”), §65 (“A suggestion that any matter which comes within the realm of social or economic policy should on that basis alone be immune from review by the courts cannot be accepted”). 13.5.5 Judicial restraint: politics/policy-content. Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §76 (“Where political issues overtake a promise or undertaking given by government, and where contemporary considerations impel a different course, provided a bona fide decision is taken on genuine policy grounds not to adhere to the original undertaking, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it”); R (National Farmers Union) v Secretary of State 190

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for Environment, Food and Rural Affairs [2020] EWHC 1192 (Admin) at §§94, 98 (decision was “a political judgment”); R (Ahmad) v Newham LBC [2009] UKHL 14 [2009] 3 All ER 755 at §22 (“question … of overall policy”); R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin) at §41 (suggested legitimate expectation of a referendum “in the realm of politics, not of the courts, and the question whether the government should be held to such a promise is a political rather than a legal matter”), applied in R (UNISON) v Secretary of State for Health [2010] EWHC 2655 (Admin) at §§13-14 (whether consultation before Bill promoted “squarely in the realm of politics”); R v SSHD, ex p Launder [1997] 1 WLR 839, 854E-G (“we are dealing here with decisions in which there is obviously a substantial policy content, where … the court must exercise great caution in holding a decision to be irrational”); R v Ministry of Defence, ex p Smith [1996] QB 517, 556B-C (“Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown”); R v Lord Chancellor, ex p Maxwell [1997] 1 WLR 104 (the greater the element of policy in a decision, the greater should be the judicial reticence in reviewing it); cf R (Miller) v Prime Minister [2019] UKSC 41 [2020] AC 373 at §31 (Lady Hale and Lord Reed: “although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it”); {58.5.3} (variable latitude/ variable intensity: proportionality as a flexi-principle). 13.5.6 Judicial restraint: complex assessments/matters of detail. State of Mauritius v CT Power Ltd [2019] UKPC 27 at §47 (“wide margin of appreciation in making the complex evaluative judgment required”); R (ABS Financial planning Ltd) v Financial Services Compensation Scheme Ltd [2011] EWHC 18 (Admin) at §65 (Beatson J, describing the “caution of a judicial review court when dealing with complex economic issues”); R v London Borough of Southwark, ex p Cordwell (1995) 27 HLR 594, 601 (rejecting application attempting to give “spurious precision to what is inevitably an extremely difficult exercise in value judgment”); R v Camden LBC, ex p Cran (1996) 94 LGR 8, 27-28 (McCullough J’s discussion of court’s “approach to matters of detail”); R (London and Continental Stations and Property Ltd) v Rail Regulator [2003] EWHC 2607 (Admin) at §32 (the “nature of the subject matter … reinforces the reluctance a court must feel in intervening … the Regulator was concerned with issues of economic policy and of economic theory and practice”), §105 (inappropriate for court to resolve “rival arguments as to the appropriate method of calculating elasticities in relation to increased walking time”). 13.5.7 Judicial restraint: Parliament. R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559 [2020] 2 All ER 813 (primary legislation and HRA-compatibility) at §81 (“The margin of judgement which is to be afforded to Parliament in the present context rests upon two foundations. First, there is the relative institutional competence of the courts as compared to Parliament. The court necessarily operates on the basis of relatively limited evidence, which is adduced by the parties in the context of particular litigation. Its focus is narrow and the argument is necessarily sectional. In contrast, Parliament has the means and opportunities to obtain wider information, from much wider sources”), §82 (“The second foundation is that Parliament enjoys a democratic legitimacy in our society which the courts do not”). 13.5.8 Judicial restraint: regulators. Npower Direct Ltd v Gas and Electricity Markets Authority [2018] EWHC 3576 (Admin) at §131 (proportionality and wide margin for regulatory judgment); R v Securities & Futures Authority, ex p Panton 20 June 1994 unreported (speaking of “self-regulatory organisations”: “it is not the function of the court in anything other than a clear case to second guess their decisions or, as it were, to look over their shoulder”; “these bodies are amenable to judicial review, but are, in anything other than very clear circumstances, to be left to get on with it”); A v B Bank (Governor and Company of the Bank of England Intervening) [1993] QB 311, 329B-C (“the importance which should be attached to the Bank of England having, within the limits laid down by the Act and the general law, unfettered and unimpeded scope for the exercise of their most important public duties of regulation under the Act in the interests of the public”). 191

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13.5.9 Judicial restraint: other decision-makers. R v Save Guana Cay Reef Association [2009] UKPC 44 at §45 (proposed development “a very important choice for the people … with far-reaching economic, social and environmental consequences. It was eminently a decision to be taken at a very high level by democratically elected representatives. It was a decision with which the Court would be very slow to interfere”); Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 352G (“it was for the Minister to form certain opinions and for the Minister to decide what, if any, action to take. Questions of policy were for him subject to the control of Parliament”); R v SSHD, ex p Launder [1997] 1 WLR 839, 857C-D (whether to extradite a matter entrusted to the Home Secretary); R (Ahmad) v Newham LBC [2009] UKHL 14 [2009] 3 All ER 755 at §§16, 22, 46 (restraint and housing authority’s allocation scheme); R v Devon County Council, ex p L (1992) 4 Admin LR 99, 114F-115B (local authority “should be allowed to perform their task without looking over their shoulder all the time for the possible intervention of the court”). 13.5.10 Judicial restraint: lawful consultation. {62.1.4} (latitude in consultation). 13.5.11 Judicial restraint: proportionality. R (EU Lotto Ltd) v Secretary of State for Digital Culture Media and Sport [2018] EWHC 3111 (Admin) [2019] 1 CMLR 41 at §58(vii) (Green and Gross LJJ: “The proportionality test … can be applied with considerable flexibility and … does not involve the court usurping the legitimate function of the decision maker or legislature”). 13.5.12 Judicial restraint: national security. R (National Council for Civil Liberties) v SSHD [2019] EWHC 2057 (Admin) [2020] 1 WLR 243 at §44 (“the experience and opinion of the agencies is … to be given appropriate weight in the assessment of proportionality … [as] is conventional in human rights cases. … Such respect is owed to those who are responsible for the maintenance of national security and the protection of the public … for two reasons”), §45 (“The first is ‘institutional competence’: the Secretary of State and the agencies and others concerned have far greater experience of dealing with these issues than a court can possibly have. The second reason is the democratic legitimacy of the Secretary of State, who is accountable to Parliament”); R (Miranda) v SSHD [2016] EWCA Civ 6 [2016] 1 WLR 1505 at §79 (in “determining the proportionality of a decision taken by the police in the interests of national security”, court should “accord a substantial degree of deference to their expertise in assessing the risk to national security and in weighing it against countervailing interests”), §80 (executive’s view regarding national security should be accepted absent cogent reasons to reject it); R (Naik) v SSHD [2011] EWCA Civ 1546 at §48 (“Ministers, accountable to Parliament, are responsible for national security; judges are not. However, even in that context, judges have a duty, also entrusted by Parliament, to examine Ministerial decisions or actions in accordance with the ordinary tests of rationality, legality, and procedural regularity, and, where Convention rights are in play, proportionality. In this exercise great weight will be given to the assessment of the responsible Minister”); SSHD v Rehman [2001] UKHL 47 [2003] 1 AC 153 at §31 (“issues of national security do not fall beyond the competence of the courts. … It is, however, self-evidently right that national courts must give great weight to the views of the executive on matters of national security”), §§26, 53-54; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 412F-G (“par excellence a non-justiciable question”), 404H (but “the court does not abdicate its judicial function”); R v SSHD, ex p Ruddock [1987] 1 WLR 1482, 1490E-1492B (national security not a “plea in bar”); A v SSHD [2004] UKHL 56 [2005] 2 AC 68 (proportionality and justification of derogation order and statutory provision for detention of non-nationals without charge, in a national security context); R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 2 at §43 (lower standards of fairness required where decision involving “sensitive intelligence information”), §47 (“In this type of case the duty of fairness requires no more than that the decision-maker acts honestly and without bias or caprice”). 13.5.13 Judicial restraint: presumption of regularity. {42.1.2} (presumption of regularity: primary/delegated legislation); {42.1.3} (whether presumption of regularity applies to decision-making). 192

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13.5.14 Judicial restraint: benevolent treatment of legislation/bylaws. McEldowney v Forde [1971] AC 632, 645D (Lord Hodson: “the courts will be slow to interfere with the exercise of wide powers to make regulations”); Kruse v Johnson [1898] 2 QB 91 (courts should take a “benevolent” approach to bylaws made by public representative bodies, asking whether manifestly unjust, partial, made in bad faith or so gratuitous and oppressive that no reasonable person could think them justified), applied in R v Dyfed County Council, ex p Manson [1995] Env LR 83, 96. 13.5.15 Judicial restraint: benevolent treatment of planning officers’ reports. Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 [2019] PTSR 1452 at §42(2) (“Planning officers’ reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge”); R (Squire) v Shropshire Council [2019] EWCA Civ 888 [2020] 1 CMLR 2 at §55 (“the court does not approach a planning officer’s report to committee in an overly critical spirit, searching for minor mistakes or infelicities”); R (Bates) v Maldon District Council [2019] EWCA Civ 1272 at §19 (“An officer’s report must be read as a whole and in a straightforward and common sense way, and on the basis that it is drafted for an informed readership”), §43; {65.1.10} (whether planning officers’ report to committee deficient/ significantly misleading). 13.5.16 Judicial restraint: benevolent treatment of other planning materials. Kenyon v Secretary of State for Housing Communities and Local Government [2020] EWCA Civ 302 at §13 (screening opinions), §82 (decision documents); R (Lochailort Investments Ltd) v Mendip District Council [2020] EWHC 1146 (Admin) at §93 (neighbourhood plan Examiner’s Report); R (Larkfleet Homes Ltd) v Rutland County Council [2015] EWCA Civ 597 [2015] PTSR 1369 (screening report) at §41 (“This is on any view a badly expressed report, but documents of this kind are to be read as a whole and with a degree of benevolence”); Newbury District Council v Secretary of State for the Environment [1981] AC 578, 609F-G (giving a planning “condition the benevolent treatment to which … it is entitled”). 13.5.17 Judicial restraint: benevolent treatment of decision letters/reasons. Guiste v Lambeth LBC [2019] EWCA Civ 1758 [2020] HLR 12 at §53 (“benevolent approach” to housing review decisions); Wokingham Borough Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 3158 (Admin) at §19 (“A decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward and downto-earth manner, without excessive legalism or criticism; (3) as if by a well-informed reader who understands the principal controversial issues in the case”); Rother District Council v Freeman-Roach [2018] EWCA Civ 368 [2019] PTSR 61 at §49 (“benevolent approach” to local authority housing review decisions, applying Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7 [2009] 1 WLR 413 at §50); R (Davey) v Oxfordshire County Council [2017] EWCA Civ 1308 [2018] PTSR 281at §77 (needs assessments by social workers); Poshteh v Kensington and Chelsea Royal LBC [2017] UKSC 36 [2017] AC 624 at §39 (Lord Carnwath, repeating the warning against “over-zealous linguistic analysis” of a decision letter); Hotak v Southwark LBC [2015] UKSC 30 [2016] AC 811 at §79 (benevolent approach to be taken to the interpretation of local authority housing review decisions); R (Monica) v DPP [2018] EWHC 3508 (Admin) [2019] QB 1019 at §46 (approach to CPS prosecutorial decisions; “Decision letters should be read in a broad and common sense way, without being subjected to excessive or overly punctilious textual analysis”; “It is not incumbent on decision-makers to refer specifically to all the available evidence”); Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, 164E-G (decision letter approached by “reading it with a measure of benevolence”); United Kingdom Association of Professional Engineers v Advisory Conciliation & Arbitration Service [1981] AC 424, 435C-E (as to ACAS reports: necessary to “read between the lines”). 13.5.18 Judicial restraint: benevolent treatment of documents for the decision-maker. R (Pharmaceutical Services Negotiating Committee) v Secretary of State for Health [2018] EWCA Civ 1925 [2019] PTSR 885 at §79 (“documents … designed … to assist the Secretary of State to make a decision … are not to be subjected to the same exegesis that might be 193

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appropriate for the interpretation of a statute. What is required is a fair and straightforward reading of the documents as a whole, in their full context, which includes the fact that they are addressed to the Secretary of State and thus to a knowledgeable reader”). 13.5.19 Judicial restraint: benevolent treatment of social worker assessment. R (JG) v Southwark LBC [2020] EWHC 1989 (Admin) at §§12-14 (Judge Allen, explaining the need for “great restraint”, and avoidance of “overzealous textual analysis”, in the approach to social worker assessments, referring to authorities such as R (Ireneschild) v Lambeth LBC [2007] EWCA Civ 234 [2007] LGR 619).

13.6 Review from the decision-maker’s point of view.30 One manifestation of judicial restraint, protecting the defendant public authority from unwarranted interference, involves the Court conducting judicial review through a prism of the decision-maker’s point of view. That is a conventional default position, albeit by no means universal or rigid in its application. It involves considering the issues (a) as at the time when the decision-maker acted, (b) against the facts and circumstances as they then were and (c) on the material that was available to the decision-maker (excluding ‘fresh evidence’). 13.6.1 Judicial review: looking through the decision-maker’s eyes. R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §52 (Lord Mance, describing “effective” judicial review as being “able to address the decision under review on the same basis that the decision was taken”); R (Riaz) v SSHD [2019] EWHC 721 (Admin) at §34 (reasonableness “to be considered by judging the Secretary of State’s decisions against the evidence and information available to him (through his immigration officers) at the time those decisions were taken”); R (Jones) v Liverpool and Knowsley Magistrates’ Court [2016] EWHC 3520 (Admin) [2017] ACD 24 at §34 (“I have to judge the decision of the District Judge on the basis of the facts known to him at the time”); R v Kingston-Upon-Thames Justices, ex p Peter Martin [1994] Imm AR 172, 179 (considering reasonableness “through the eyes of the magistrates at the relevant time, having regard to the existing circumstances”); Re HK (An Infant) [1967] 2 QB 617, 635G (asking whether the “decision … can be attacked in the light of the information then available to the immigration officer, and in the light of the consideration which he then gave to that information”); R v Commissioners of Customs and Excise, ex p British Sky Broadcasting Group [2001] EWHC Admin 127 [2001] STC 437 (review by reference to “the factors which were known or ought to have been known by the administrator when the decision was taken”); {31.2.4} (circumstances in which defendant was acting). 13.6.2 The conventional default prism: the time of the decision. R (Kaur) v SSHD [2018] EWCA Civ 1423 [2018] Imm AR 1364 at §74 (Holroyde LJ: “It has been necessary to consider the facts as they existed at the time of the decision, not the facts as they may now be”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §131 (Lord Carswell: “The time at which the factors governing reasonableness have to be assessed is, self-evidently, the time of making the decision called into question”). 13.6.3 The conventional default prism: the material which was before the decision-maker. {17.2} (fresh evidence in judicial review); R (Barda) v Mayor of London [2015] EWHC 3584 (Admin) [2016] 4 WLR 20 at §99 (Garnham J: “I have to put myself in the position of the [defendant] at each material stage and ask whether the defendants have satisfied me that their response was proportionate given what they knew at the time. I emphasise the last clause of that test; it would not be correct to take into account what has become known since the decision being considered, but which could not have been known at the time”); R v Secretary of State for Education & Science, ex p Parveen Malik [1994] ELR 121, 129C-D, H (“the fundamental flaw in [counsel]’s argument is that his submissions … are founded on material

30The

equivalent paragraph in a previous edition was relied on in JR 65 [2016] NICA 20 at §104 (Gillen LJ).

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which was not before the Secretary of State”); R v SSHD, ex p Syed Majid Kazmi [1994] Imm AR 94, 101 (“this application has to be considered on the material before the Secretary of State”); R v Secretary of State for Transport, ex p Richmond-upon-Thames LBC [1994] 1 WLR 74, 96D-E (since defendant “was not bound by law to obtain specific expert material”, argument not advanced by exhibiting expert articles which “were not before the Secretary of State”); R v MacDonald (Inspector of Taxes), ex p Hutchinson and Co Ltd [1998] STC 680, 695a (evidence “strictly irrelevant to the legality of the decision taken in 1996, since the evidence was not available to those making the decision”); R v Registrar General of Births, Deaths and Marriages, ex p P and G [1996] 2 FLR 90, 96A (“none of the post-1993 material upon which [counsel] now relies could reasonably be expected to be available to the Registrar General … when he was making the decisions challenged in this case”); {17.2.6} (evidence of what an inquiry would have elicited). 13.6.4 The conventional default prism: avoiding hindsight. DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 [2017] NI 301 at §76 (Lord Kerr: “a judgment on what is proportionate should not be informed by hindsight”); R v Secretary of State for Transport, ex p Richmond upon Thames LBC (No 4) [1996] 1 WLR 1460, 1482B (Brooke LJ: “the minister could not reasonably be criticised for not relying on evidence that did not at present exist … the present state of the research evidence on sleep disturbance was a factor he could reasonably take into account”); R v Council of Legal Education, ex p Eddis (1995) 7 Admin LR 357, 372B (“With the wisdom of hindsight, that decision might be wrong, but in our judgment it was not irrational in the circumstances in which it was taken”). 13.6.5 The conventional default prism: claimant’s failure to raise a point/request/ complain. {31.3.5}-{31.3.19}

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P14 Critical balance. Judicial review principles are an evolving balance, struck by Courts to serve the dual imperatives of appropriate judicial vigilance and restraint. 14.1 Judicial review: striking a balance 14.2 Striking a balance: nothing personal 14.3 Inconvenience and floodgates

14.1 Judicial review: striking a balance. The principles governing judicial review are the product of the dynamic interrelationship, and healthy tension, between judicial vigilance and judicial restraint. The search for this ‘critical balance’ inheres throughout the whole of public law. In particular, in articulating and applying every ground for judicial review, Courts are grappling with the question of where precisely to draw the line, in deciding when a public authority and primary decision-maker goes so ‘badly wrong’ as to warrant interference by the Court. 14.1.1 Judicial review and striking a balance: a view from 1959. De Smith, Judicial Review of Administrative Action (1st edition, 1959) at 3 (“Public authorities are set up to govern and administer, and if their every act or decision were to be reviewable on unrestricted grounds by an independent judicial body the business of administration would be brought to a standstill. The prospect of judicial relief cannot be held out to every person whose interests may be adversely affected by administrative action. But the law, in its unending task of reconciling the interests of government and governed, demarcates sets of relationships and areas of activity in which claims and controversies may be resolved and grievances redressed through the medium of the courts. … To the extent that the courts do justice to the individual citizen while giving due weight to the requirements of the public interest they act as a major instrument of social welfare and social equilibrium, and within their sphere of jurisdiction fulfil a function that cannot adequately be performed by any other organ of government. And to the extent that they fearlessly enforce the principle that government must be carried on strictly in accordance with the law, they are capable of conditioning the whole ethos of public administration”). 14.1.2 The critical balance: ‘vigilance’ and ‘restraint’. R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §57 (Lord Neuberger: “Judges should always be vigilant and fearless in carrying out their duty to ensure that individuals’ legal rights are not infringed by the executive. But judges must also bear in mind that any decision of the executive has to be accorded respect – in general because the executive is the primary decision-maker, and in particular where the decision is based on an assessment which the executive is peculiarly well equipped to make and the judiciary is not”); R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6 [2015] PTSR 322 at §65 (Lord Neuberger: “The line between judicial over-activism and judicial timidity is sometimes a little hard to tread with confidence, but it is worth remembering that, while judicial bravery and independence are essential, the rule of law is not served by judges failing to accord appropriate respect to the primary policy-making and decision-making powers of the executive”); Beghal v DPP [2015] UKSC 49 [2016] AC 88 at §75 (Lord Neuberger and Lord Dyson, recognising that “the rule of law crucially requires the court to be vigilant when assessing the necessity or proportionality of both the contents and the implementation of any statute which interferes with human rights” and discussing the “importance of, and tension between, the need for circumspection and the need for vigilance”, as “apparent from” observations such as those of Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §71 regarding “the degree of restraint practised by courts in applying the principle of proportionality”); Alibkhiet v Brent LBC [2018] EWCA Civ 2742 at §38 (Lewison LJ: “A court must be wary about imposing onerous duties on housing authorities struggling to cope with the number of applications they receive from the homeless, in the context of a severe housing shortage and overstretched financial and staffing resources. That said, the

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court is the guardian of legality; and it must not hesitate to quash an unlawful decision”); JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313 at §111 (Leggatt LJ: “what level of resources to allocate to the criminal injuries compensation scheme and how to allocate those resources are pre-eminently choices for the Secretary of State with the approval of Parliament. Nevertheless, that freedom of choice is not completely unconstrained. … Although a wide margin is accorded to the Secretary of State in choosing how to allocate the funds made available for paying compensation to victims of crime, those funds must be allocated according to some rational set of criteria and not in a wholly arbitrary way”). 14.1.3 Striking a balance: Simon Brown LJ’s dual constitutional dangers. R (International Transport Roth GmbH) v SSHD [2002] EWCA Civ 158 [2003] QB 728 at §54 (Simon Brown LJ: “Constitutional dangers exist no less in too little judicial activism as in too much”). 14.1.4 Striking a balance in judicial review: illustrations. R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 662A-C ((i) “judicial review should be freely available in whatever form may be appropriate in a particular case” but (ii) “it is equally important that the courts do not by use or misuse of the weapon of judicial review cross that clear boundary between what is administration, whether it be good or bad administration, and what is an unlawful performance of the statutory duty by a body charged with the performance of that duty”); R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855 at §31 (“the courts have to bear in mind at all times that the members of the tribunal have a much greater understanding of their task than the courts. However, subject to the courts confining themselves to their well-recognised role on applications for judicial review, it is essential that they should be prepared to exercise that role regardless of the distinction of the body concerned and the sensitivity of the issues involved”); R v Ministry of Defence, ex p Smith [1996] QB 517 (DC) at 538E (describing the “tension … between the suggested defence interests of the state and the fundamental human rights of the individuals affected”); SSHD v AF (No 3) [2009] UKHL 28 [2010] 2 AC 269 at §76 (Lord Hope, describing “the acute tension that exists between the urgent need to protect the public from attack by terrorists and the fundamental rights of the individual”). 14.1.5 Striking a balance: human rights. Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 [2019] 1 All ER 173 at §38 (Lady Hale, speaking in the context of HRA declarations of incompatibility: “this is … a matter of fundamental human rights on which, difficult though it is, the courts are as well qualified to judge as is the legislature. In fact, in some ways, the courts may be thought better qualified, because they are able to weigh the evidence, the legal materials, and the arguments in a dispassionate manner, without the external pressures to which legislators may be subject”); R (Conway) v Secretary of State for Justice [2018] EWCA Civ 1431 [2020] QB 1 at §179 (“It is the responsibility of the courts under the Human Rights Act 1998 to determine whether or not there has been infringement of the Convention, and in many cases that involves the court itself reaching a decision on matters which have wide ranging implications for society. … It is well established, however, that in some cases it is appropriate to give respect to the views of the executive or of Parliament. How much respect should be given will depend upon all the circumstances”); Attorney-General’s Reference (No 2 of 2001) [2001] EWCA Crim 1568 [2001] 1 WLR 1869 (CA) at §19 (Lord Woolf CJ: “As is the case with many of the rights which are contained in the Convention, the courts are called upon to hold the balance between the rights of the individual and the rights of the public”) (HL is at [2003] UKHL 68 [2004] 2 AC 72). 14.1.6 Striking a balance and proportionality. In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §55 (‘manifestly without reasonable foundation’ test for social and economic policy), §65 (but no immunity from review), §52 (greater scrutiny where reasons offered are not those which informed the actual decision), §62 (bright-line rule of marginal significance where suggested problems unsupported by evidence); R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58 [2016] 1 WLR 4550 at §30 (“careful scrutiny” applicable whether “weighty reasons” test or “manifestly without reasonable foundation test” for justifying 197

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discrimination); JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313 at §87 (Leggatt LJ: “Although broad, the margin which the court should afford to a policy choice on a matter of economic or social strategy is nevertheless not without limit”); R (Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336 (Admin) [2010] ICR 260 at §41 (Blake J: “governments must be free to govern … but … judges must also judge, which they can do in this field by applying well established principles of proportionality and in so doing apply an appropriate intensity of inquiry whilst ensuring that they do not stray beyond their proper constitutional competence and usurp the prerogatives of the executive on sensitive social issues for which it is ultimately accountable to the electorate”): {37.1.15} (fair balance); {58.3.26} (proportionality method and common law: fair balance/reasonable balance); {58.5.9} (proportionality: fair balance). 14.1.7 Striking a balance: unlawful discrimination. R (Ward) v Hillingdon LBC [2019] EWCA Civ 692 [2019] PTSR 1738 at §47 (Lewison LJ, describing judicial “warning[s] against over-interference in the policy choices made by a housing authority in framing its allocation policy”), §49 (“Despite these warnings the court must, of course, be satisfied that a housing allocation policy does not unlawfully discriminate. … Protection against unlawful discrimination, even in an area of social and economic policy, falls within the constitutional responsibility of the courts. Even in the area of welfare benefits, where the court would normally defer to the considered decision of the policy maker, if that decision results in unjustified discrimination, then it is the duty of the court to say so”); R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin) at §178 (“the circumstances of this case give rise to the widest margin of discretion …, but this does not mean that there must be no scrutiny at all”); {59.8.9} (Article 14: Bank Mellat 4-step proportionality approach to justification (Art 14 stage 4)). 14.1.8 Striking a balance: ouster. R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 [2020] AC 491 at §130 (“the courts have … felt free to adapt or limit the scope and form or judicial review, so as to ensure respect on the one hand for the particular statutory context and the inferred intention of the legislature, and on the other for the fundamental principles of the rule of law, and to find an appropriate balance between the two”): {P28} (ouster). 14.1.9 The critical balance: two-tiered review. {16.1.3} (key distinction between soft and hard-edged questions); {13.1} (‘soft’ review: reasonableness standard); {15.1} (‘soft’ review: the forbidden substitutionary approach); {16.1} (hard-edged review: correctness standard).; {47.1.8} (jurisdiction and two-tiered review). 14.1.10 The critical balance: discretions and duties. {13.3} (restraint and discretion/ judgment); {39.1} (no unfettered powers); {39.2} (discretion/power: the essential duties); {P39} (discretion/duty). 14.1.11 Striking a balance: reviewability. {P32} (modified review); {P34} (reviewability/ non-reviewability); {34.4} (‘non-reviewable’ public functions). 14.1.12 Striking a balance: onus. {P42} 14.1.13 Striking a balance: remedial judicial responses. {43.1} (severability); {43.1.8} (partial validity: other judicial techniques); {46.2} (interpretation to allow validity: reading down/reading in); {43.1.7} (partial quashing). 14.1.14 Damages and maladministration: searching for the right balance. {25.3.4} (unavailability of monetary remedy: cause of injustice/need for a solution). 14.1.15 Striking a balance: error of fact. {13.2.3} (the fact/law distinction); {48.1.7} (fact/ law: a flexible policy-informed approach); {P49} (error of fact). 14.1.16 Striking a balance: unreasonableness/abuse of power. BF (Eritrea) v SSHD [2019] EWCA Civ 872 [2020] 4 WLR 38 at §74 (Underhill LJ: (i) “the formulation of policy, and associated guidance, is a matter for the Secretary of State, who has both the constitutional 198

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responsibility and the appropriate expertise, and not for the Court” but (ii) here “the … reason given for it … is … incapable of justifying it; and … it creates a real and unavoidable risk of children being unlawfully detained”); R (KM) v Cambridgeshire County Council [2012] UKSC 23 [2012] PTSR 1189 at §36 (Lord Wilson: “in community care cases the intensity of review will depend on the profundity of the impact of the determination. By reference to that yardstick, the necessary intensity of review in a case of this sort is high. … On the other hand respect must be afforded to the distance between the functions of the decision-maker and of the reviewing court; and some regard must be had to the court’s ignorance of the effect upon the ability of an authority to perform its other functions of any exacting demands made in relation to the manner of its presentation of its determination in a particular type of care. So the court has to strike a difficult, judicious, balance”); R (Bancoult) v Secretary of State for Foreign & Commonwealth Affairs (No 2) [2008] UKHL 61 [2009] AC 453 at §52 (balancing restraint in the context of defence of the realm and public funds with anxious scrutiny in the human rights context); Wheeler v Leicester City Council [1985] AC 1054, 1077H-1078A (Lord Roskill, referring to the important “line which divides a proper exercise of a statutory discretion based on a political judgment, in relation to which the courts must not and will not interfere, from an improper exercise of such a discretion in relation to which the courts will interfere”); R v DPP, ex p Manning [2001] QB 330, at §23 (Court slow to interfere with DPP’s judgment as to whether to prosecute, but: “At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied”). 14.1.17 Striking a balance: primary and secondary judgments. R v SSHD, ex p Brind [1991] 1 AC 696, 749A-B (Lord Bridge: “The primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment”); {56.2} (obligatory and evaluative relevance/irrelevance); {56.3} (relevance and weight). 14.1.18 Striking a balance: flexibility and rigidity/certainty. R v Ministry for Agriculture Fisheries & Food, ex p Hamble Fisheries (Offshore) Ltd [1995] 2 All ER 714, 722a-c (Sedley J, describing the “two conflicting imperatives” of consistency and non-rigidity), echoed in R (Alvi) v SSHD [2012] UKSC 33 at §111 (Lord Walker, describing “the tension, in public law decision-making, between flexibility in the decision-making process and predictability of its outcome”). 14.1.19 Striking a balance: ‘unfairness’ illustrations. {16.5.6} (procedural latitude/ procedural discretion); {61.1.27} (procedural fairness: fairness not best practice); {40.2} (inalienability and legitimate expectation). 14.1.20 Why vigilance is important: a lesson from 1995. A piece of public law history worthy of reflection: in R v Ministry of Defence, ex p Smith [1996] QB 517, the Court of Appeal dismissed a challenge to the Ministry of Defence policy which stated that homosexuality was incompatible with service in the armed forces. The Court recorded (at 556F-G): “The reasons underlying the present policy were given in an affidavit sworn by … the Vice Chief of the Defence Staff, an officer of great seniority and experience … which advanced three reasons. The first related to morale and unit effectiveness, the second to the role of the services as guardian of recruits under the age of 18 and the third to the requirement of communal living in many service situations … based … on a practical assessment of the implications of homosexual orientation on military life”. A unanimous judgment of the European Court of Human Rights in Smith and Grady v United Kingdom (1999) 29 EHRR 493 found the policy to be an unjustified breach of human rights. It noted (at §99) “the lack of concrete evidence to substantiate the alleged damage to morale and fighting power that any change in the policy would entail”. It found (at §§96-97): “the perceived problems which were identified … as a threat to the fighting power and operational effectiveness of the armed forces were founded solely upon the negative attitudes of heterosexual personnel towards those of homosexual 199

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orientation. … [T]hese attitudes, even if sincerely felt by those who expressed them, ranged from stereotypical expressions of hostility to those of homosexual orientation, to vague expressions of unease about the presence of homosexual colleagues. To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interferences with the applicants’ rights … any more than similar negative attitudes towards those of a different race, origin or colour.” In R v SSHD, ex p Daly [2001] UKHL 26 [2001] 2 AC 532 (at §27) Lord Steyn suggested that Smith & Grady had shown the approach in Smith to have been “not necessarily appropriate to the protection of human rights”. Cf {13.1.8} (why restraint is important: a lesson from 1925).

14.2 Striking a balance: nothing personal. One feature as the Courts manage the tension between appropriate vigilance and appropriate restraint has been to emphasise that the Courts’ intervention, where warranted, does not mean criticism (still less disrespect) for public authority decision-makers and policy-makers themselves. 14.2.1 Nothing personal and objective standards. R v London Borough of Camden, ex p Paddock [1995] COD 130 (see transcript) (Sedley J: “it is never pleasant for officers or members of a public body to be told that they have departed from standards of public administration required by law. But to be told this is not to be ‘condemned’. The critical question is not the subjective intention of the decision-maker but the objective effect of what was done”); R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941, 943b (“It is not discreditable to get it wrong”); {45.2.1} (objective standards). 14.2.2 Nothing personal: unlawfulness. R (Ivanauskiene) v Special Adjudicator [2001] EWCA Civ 1271 [2002] INLR 1 at §23 (adjudicator having committed an error of law, albeit that entirely blameless; followed a decision of the Court of Appeal which had subsequently been overturned as incorrect); R (JE) v Criminal Injuries Compensation Appeals Panel [2003] EWCA Civ 234 at §37 (judicial review granted because of case law which post-dated the decision, and on the basis of fuller argument than the defendant had heard); R (Sussex Police Authority) v Cooling [2004] EWHC 1920 (Admin) at §42 (no stigma attaching to getting the law wrong). 14.2.3 Nothing personal: unreasonableness. Champion v Chief Constable of the Gwent Constabulary [1990] 1 WLR 1, 16F-17A (Lord Lowry: “The conclusion therefore is that he was guilty of Wednesbury unreasonableness and, to adopt the words used in that case, came to a conclusion so unreasonable that no reasonable Chief Constable could ever have come to it. The use of this stark language may be a salutary reminder of the heavy burden assumed by those who would attack administrative decisions, but I regret the identification which it implies of unreasonableness with the decision-maker as well as with the decision”); R v London Borough of Brent, ex p Omar (1992) 4 Admin LR 509, 524E (conclusion “unintentionally perverse”); In re W (An Infant) [1971] AC 682, 695F (Lord Hailsham: “Unreasonableness is one thing. Culpability is another. It may be that all or most culpable conduct is unreasonable. But the converse is not necessarily true”); Cemex (UK) Operations Ltd v Richmondshire District Council [2018] EWHC 3526 (Admin) (quashing grant of planning permission for failure to have regard to a material consideration) at §63 (“Human beings all make mistakes”). 14.2.4 Nothing personal: unfairness. Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, 1266E (no “moral blame” from unfairness conclusion); R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139, 156c-d (no “condemnation” for coroner’s “single intemperate comment”); R v Secretary of State for Education and Science, ex p Islam (1993) 5 Admin LR 177, 187C-D (the “manifest unfairness” in the Secretary of State’s decision, was simply “a gap in the thinking about the procedure which should have been adopted”); R v National Lottery Commission, ex p Camelot Group Plc [2001] EMLR 3 at §83 (Commission intended to act fairly; nevertheless “conspicuous unfairness”). 200

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14.3 Inconvenience and floodgates. Judicial review Courts are acutely alive to practical implications. They adopt the default position of principled restraint. In striking an appropriate balance, the Courts nevertheless generally take a robust position in declining to restrict the application or development of the law by drawing ‘defensive lines’, on the basis of convenience, workload or ‘floodgates’. 14.3.1 Justice trumps convenience: Spackman. General Medical Council v Spackman [1943] AC 627, 638 (Lord Atkin: “Convenience and justice are often not on speaking terms”), cited in Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 578B (Lord Oliver); R v Secretary of State for the Environment, ex p Brent LBC [1982] QB 593, 646F-G; R (Murray) v Parole Board [2003] EWCA Civ 1561 at §24 (“logistical difficulties” no answer to question whether parole review delays excessive in breach of HRA:ECHR Art 5(4)). 14.3.2 Declining to adopt ‘defensive lines’: general. R v Bolton Justices, ex p Scally [1991] 1 QB 537, 555C-D (Watkins LJ, emphasising the need to ensure that “justice should be done … and without the so often deployed floodgates argument being given undue prominence”); R v Lambert [2001] UKHL 37 [2002] 2 AC 545 at §30 (Lord Steyn: “A healthy scepticism ought to be observed about practised predictions of an avalanche of dire consequences likely to flow from any new development”). 14.3.3 Declining to adopt ‘defensive lines’: reviewability. Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 566B-F (Lord Bridge: “In a matter of jurisdiction it cannot be right to draw lines on a purely defensive basis and determine that the court has no jurisdiction over one matter which it ought properly to entertain for fear that acceptance of jurisdiction may set a precedent which will make it difficult to decline jurisdiction over other matters which it ought not to entertain. Historically the development of the law in accordance with coherent and consistent principles has all too often been impeded, in diverse areas of the law besides that of judicial review, by the court’s fear that unless an arbitrary boundary is drawn it will be inundated by a flood of unmeritorious claims”), endorsed in R (Cart) v Upper Tribunal [2011] UKSC 28 [2012] 1 AC 663 at §114 (Lord Dyson). 14.3.4 Declining to adopt ‘defensive lines’: procedural fairness. R v SSHD, ex p Duggan [1994] 3 All ER 277, 287h (principles of fairness applying to security reviews, since “in a matter of jurisdiction, lines are not to be drawn on a purely defensive basis”). 14.3.5 ‘Floodgates’ and damages. R (N) v SSHD [2003] EWHC 207 (Admin) [2003] HRLR 583 at §198 (Silber J: “Even if the floodgate argument had any application to the fact-sensitive decision whether or not to award damages in a particular case, I do not consider that it has any value or relevance to this case”) (CA is Anufrijeva v Southwark LBC [2003] EWCA Civ 1406 [2004] QB 1124); D v Home Office [2005] EWCA Civ 38 [2006] 1 WLR 1003 at §109 (rejecting floodgates in context of tort of false imprisonment). 14.3.6 Response to ‘floodgates’ argument: flood may be needed. Armes v Nottinghamshire County Council [2017] UKSC 60 [2018] AC 355 at §69 (Lord Reed, speaking in the context of imposing local authority vicarious liability for child abuse in foster care: “If … there is substance in the floodgates arguments … such a widespread problem of child abuse by foster parents that the imposition of vicarious liability would have major financial and other consequences – then there is every reason why the law should expose how this has occurred”); Edwards v Bairstow [1956] AC 14 at 32 (Viscount Simonds: “We were warned … that to allow this appeal would open the floodgates to appeals against the decisions of the General Commissioners up and down the country. That would cause me no alarm, if decisions such as that we have spent some time in reviewing were common up and down the country”). 14.3.7 Response to ‘floodgates’ argument: no flood if no abuse of power. R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, 77A (Lord Lowry: “No ‘floodgates’ argument applies because the executive can stop the flood at source by refraining from impropriety”); R v SSHD, ex p Doody [1994] 1 AC 531, 566D-E (Lord Mustill: “this will not be a signal for a flood of successful applications for judicial review. … Only if it can be 201

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shown that the decision may have been arrived at through a faulty process, in one of the ways so familiar to practitioners of judicial review, will [prisoners] have any serious prospect of persuading the court to grant [a remedy]”). 14.3.8 Response to ‘floodgates’ argument: refusal to speculate. R (Asif Javed) v SSHD [2001] EWCA Civ 789 [2002] QB 129 at §79 (referring to submission that remedy should be refused because of potential large number of like claims: “This submission is speculative and we do not consider it to afford a good reason for refusing the [claimants] the [remedy] to which they would otherwise be entitled”). 14.3.9 ‘Floodgates’ are a threat more illusory than real. Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 582F-583B (Lord Oliver: “the spectre of the courts being flooded with frivolous applications for [permission] to apply for judicial review is more likely to be illusory than real”); R v SSHD, ex p Tarrant [1985] QB 251, 297D-G; Gouriet v Union of Post Office Workers [1978] AC 435, 510A-B (“it was urged that any change in the present law would open what were called the ‘floodgates’ to a multiplicity of claims by busybodies. But it is difficult to see why such people should be more numerous or active than private prosecutors are at the present day”); R v Bedwellty Justices, ex p Williams [1997] AC 225, 237G (no flood of judicial review of committals following Neill v North Antrim Magistrates’ Court [1992] 1 WLR 1220, where (at 1233D-G) the court had posed the question “whether as a matter of policy the court should entirely abstain from intervening, for fear of being submerged by a flood of worthless applications”); R (McCourt) v Parole Board [2020] EWHC 2320 (Admin) at §§51-53 (rejecting floodgates arguments in context of standing and victim/family challenges to parole decisions). 14.3.10 Response to ‘floodgates’ argument: Parliament could act. Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, 582H-583B (Lord Oliver: “the remedy, in the end, lies in the hands of the courts or, in the ultimate analysis, with Parliament”); Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70, 177B and 200E; R v Kansal (No 2) [2001] EWCA Crim 1260 [2002] 2 AC 69 (CA) at §24 (HL is [2001] UKHL 62 [2002] 2 AC 69). 14.3.11 Courts cautious about ‘opening the door’. {58.3} (proportionality at common law), considered in R v SSHD, ex p Brind [1991] 1 AC 696, 767B-C (Lord Lowry: “Stability and relative certainty would be jeopardised if the new doctrine [of proportionality] held sway, because there is nearly always something to be said against any administrative decision and parties who felt aggrieved would be even more likely than at present to try their luck with a judicial review application both at first instance and on appeal. … The increase in applications for judicial review of administrative action (inevitable if the threshold of unreasonableness is lowered) will lead to the expenditure of time and money by litigants, not to speak of the prolongation of uncertainty for all concerned with the decisions in question, and the taking up of court time which could otherwise be devoted to other matters. The losers in this respect will be members of the public, for whom the courts provide a service”); {61.1.24} (blameless unfairness/objective unfairness); R v SSHD, ex p Al-Mehdawi [1990] 1 AC 876, 901D-E (approach to blameless unfairness rejected for fear of “opening such a wide door which would indeed seriously undermine the principle of finality in decision making”); R v Chief Constable of the Kent County Constabulary, ex p L [1993] 1 All ER 756, 771a (Watkins LJ: “The danger of opening too wide the door of review of the discretion to continue a prosecution is manifest and such review, if it exists, must, therefore, be confined to very narrow limits”); R v Football Association Ltd, ex p Football League Ltd [1993] 2 All ER 833, 849c-d (judicial review of the FA would be “a misapplication of increasingly scarce judicial resources”).

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P15 The forbidden method.31 Judges will not intervene as if questions entrusted to the public authority’s primary judgment were for the Court’s own substitutionary judgment. 15.1 ‘Soft’ review: the forbidden substitutionary approach 15.2 ‘Not an appeal’ 15.3 ‘Legality not correctness’ 15.4 ‘Not the merits’ 15.5 ‘Court does not substitute its own judgment’

15.1 ‘Soft’ review: the forbidden substitutionary approach.32 Every public authority has its own proper role and has matters which, as primary decision-maker, it is to be trusted to decide for itself. Judicial review Courts are careful to avoid usurping that role and interfering simply because they may ‘disagree’ as to those matters. There are various ways of formulating the warning against impermissible interference. But, however it is expressed, the idea of a ‘forbidden’ approach is essential in understanding and applying principles of judicial review. This idea is at the heart of ‘soft’ review, with its built-in ‘latitude’. 15.1.1 The forbidden substitutionary approach. British Telecommunications Plc v Competition Commission [2012] CAT 11 at §280 (“we were being invited to follow … the forbidden substitutionary approach, where a court or tribunal tasked with a duty of judicial review instead usurps and trespasses upon the proper role of the actual decision maker”); TalkTalk Telecom Group Plc v Ofcom [2012] CAT 1 at §123; Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1160E-H (judicial review “is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions”); R v SSHD, ex p Brind [1991] 1 AC 696 at 767G (Lord Lowry, discussing the space between “the conventional judicial review doctrine” and the “forbidden appellate approach”); R v Chief Registrar of Friendly Societies, ex p New Cross Building Society [1984] QB 227, 241H-242A (Sir John Donaldson MR: “it is not for the court to consider whether the chief registrar’s decisions were ‘right’ or ‘wrong’, or to entertain an appeal from them or to substitute the court’s discretion for his”); R v Nat Bell Liquors Ltd [1922] 2 AC 128, 142-143 (warning against “rehearing the whole case by way of appeal on the evidence”); De Smith, Judicial Review of Administrative Action (1st edition, 1959) at 167 (“The courts have repeatedly affirmed their incapacity to substitute their own discretion for that of an authority in which the discretion has been confided”); {13.1} (‘soft’ review: reasonableness standard). 15.1.2 Merits-substitution is ‘forbidden territory’. R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 at §273 (“courts should … be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review”); R v Chief Constable of the Thames Valley Police, ex p Cotton [1990] IRLR 344, 352 (Bingham LJ, describing “the forbidden territory of evaluating the substantial merits of a decision”); Canterbury City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin) at §84 (“the court must be

31The

equivalent section in a previous edition was relied on in Law Kiat Min [2009] MYSSHC 53 (High Court of Sabah and Sawarak) at §9 (Hon Judicial Commissioner Backer); New Saints FC Ltd v Football Association of Wales Ltd [2020] EWHC 1838 (Ch) at §40(4) (Marcus Smith J). 32The equivalent paragraph in a previous edition, and the “forbidden substitutionary approach”, were relied on in TalkTalk [2012] CAT 1 at §123; BT [2012] CAT 11 at §280; Rashid v Minister for Justice and Equality [2020] IEHC 333 at §15 (Richard Humphreys J).

THE NATURE OF JUDICIAL REVIEW

careful to avoid trespassing into the ‘forbidden territory’ of evaluating the substantive merits of the decision”); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §74 (“the forbidden territory of evaluating the substantial merits of the decision”); R (Plant) v Lambeth LBC [2016] EWHC 3324 (Admin) [2017] PTSR 453 at §59 (Holgate J: “The court ‘must not … stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantive merits of the decision’”, citing R (Smith) v North East Derbyshire Primary Care Trust [2006] EWCA Civ 1291 [2006] 1 WLR 3315 at §10); R (Asian Music Circuit) v Arts Council England [2012] EWHC 1538 (Admin) at §45 (“caution … to ensure that the court is not seduced into territory marked ‘out of bounds’”). 15.1.3 The judicial review court is not ‘the primary decision-maker’. R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355 at §127 (Lord Neuberger, describing judicial review as “circumscribed by very well established principles, which are based on the self-evident propositions that the member of the executive is the primary decision-maker, and that he or she will often be more fully informed and advised than a judge”); R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6 [2015] PTSR 322 at §61 (Lord Neuberger: “The courts have no more constitutionally important duty than to hold the executive to account by ensuring that it makes decisions and takes actions in accordance with the law. … However, whether in the context of a domestic judicial review, the Human Rights Act 1998, or EU law, the duty has to be exercised bearing in mind that the executive is the primary decision-maker”); R (Carlile) v SSHD [2014] UKSC 60 [2015] AC 945 at §57 (Lord Neuberger: “the executive is the primary decision-maker”); Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [2014] AC 700 at §71 (Lord Reed: referring to the public authority as “the primary decision-maker”); JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313 at §90 (Leggatt LJ, referring to “the public authority” as “the primary decision-maker”); cf. {P16} (hard-edged questions); {13.1.2} (issues of substance: Court’s role is limited). 15.1.4 The forbidden substitutionary approach: some basic warnings. R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 535B-C (Lord Keith, warning of “the danger of judges wrongly though unconsciously substituting their own views for the views of the decision-maker who alone is charged and authorised by Parliament to exercise a discretion. The question is not whether the Secretary of State came to a correct solution or to a conclusion which meets with the approval of the … Court but whether the discretion was properly exercised”); R v Secretary of State for Transport, ex p Richmond-upon-Thames LBC [1994] 1 WLR 74, 95G (rejecting “a disguised, though elegant, plea upon the merits”); R (Cordant Group Plc) v Secretary of State for Business, Innovation & Skills [2010] EWHC 3442 (Admin) at §23 (“the court … must not allow itself to become an umpire of a social and economic controversy that has been settled by due political process”), §24 (“the court must at all times be careful to distinguish real grounds of illegality from a possibly disguised attack on … economic wisdom”); R v SSHD, ex p Brind [1991] 1 AC 696, 766H (Lord Lowry: “to interfere with [the Secretary of State’s] discretion beyond the limits as hitherto defined would itself be an abuse of the judges’ supervisory jurisdiction”); R (E) v Governing Body of JFS [2009] UKSC 15 [2010] 2 AC 728 at §157 (sensitivity to avoid straying into regulating religious functions), §160 (Court adjudicates not on merits of a religious dispute, but does decide a question of law, here whether breach of race discrimination duties). 15.1.5 The forbidden approach: understanding ‘soft’ review. {13.1} (‘soft’ review: reasonableness standard); R v SSHD, ex p Hindley [1998] QB 751 (DC), 777A (Lord Bingham CJ: “responsibility for making the relevant decision rests with another party and not with the court. It is not enough that we might, if the responsibility for making the relevant decision rested with us, make a decision different from that of the appointed decision-maker. To justify intervention by the court, the decision under challenge must fall outside the bounds of any decision open to a reasonable decision-maker”); R (Talpada) v SSHD [2018] EWCA Civ 841 at §64 (Singh LJ: “the role of the courts, however important, is a limited one”); R (Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin) at §63 (identifying “a matter of 204

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judgment for the competent authority, subject to a challenge on grounds of Wednesbury irrationality or other public law error”); R (A) v Secretary of State for Health and Social Care [2018] EWCA Civ 2696 [2019] 1 WLR 2979 at §62 (“the Secretary of State was … entitled to exercise her judgment as to what was necessary”); R v SSHD, ex p Brind [1991] 1 AC 696, 757G-H (Lord Ackner, explaining that judicial review principles must “be expressed in terms that confine the jurisdiction exercised by the judiciary to a supervisory … jurisdiction. … It would be a wrongful usurpation of power by the judiciary to substitute its, the judicial view, on the merits”); {13.7} (review from the decision-maker’s point of view). 15.1.6 ‘Soft’ review: Lawton LJ’s referee. Laker Airways Ltd v Department of Trade [1977] QB 643, 724D-E (Lawton LJ: “In a case such as this I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play”).

15.2 ‘Not an appeal’.33 This is a common formula for warning against the forbidden substitutionary approach. But it is not the best one. Whether judicial review is like ‘an appeal’ depends on what sort of ‘appeal’, and what sort of issue, is in mind. There is no universal model of an ‘appeal’, and some appeals (eg on a ‘point of law’) are in substance no different from judicial review. Moreover, on some issues (eg questions of law or precedent fact), judicial review does operate very much like a ‘substitutionary’ appeal. 15.2.1 Judicial review is ‘not an appeal’. R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 [2018] AC 236 at §56 (Lord Mance: “Judicial review is not generally an appeal”); General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193 (judicial review not ‘in the nature of an appeal’) at §21 (Lord Kerr: “Judicial review … cannot partake of the nature of an appeal”), §20 (“an appeal body or court may examine the basis on which the original decision was made, assess the merits of the conclusions of the body or court from which the appeal was taken and, if it disagrees with those conclusions, substitute its own”); R v SSHD, ex p Launder [1997] 1 WLR 839, 857C (Lord Hope: “The function of the court in the exercise of its supervisory jurisdiction is that of review. This is not an appeal against the Secretary of State’s decision on the facts”); Kemper Reinsurance Company v Minister of Finance [2000] 1 AC 1, 14H-15A (“judicial review is quite different from an appeal. It is concerned with the legality rather than the merits of the decision”); R v Northumberland Compensation Appeal Tribunal, ex p Shaw [1952] 1 KB 338, 357 (“not … the cloak of an appeal in disguise”); General Medical Council v Spackman [1943] AC 627, 640 (“not an appellate power”); R v Inland Revenue Commissioners, ex p Rossminster [1980] AC 952, 1013E-H (“not a court of appeal”); Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 234 (not “an appellate authority”). 15.2.2 Parliament provided no appeal: Court must not invent one. R v Independent Television Commission, ex p TSW Broadcasting Ltd [1994] 2 LRC 414, 424c-e (Lord Templeman: “Parliament may by statute confer powers and discretions and impose duties on a decision maker who may be an individual, a body of persons or a corporation. … Where Parliament has not provided for an appeal from a decision maker the courts must not invent an appeal machinery. … The courts have invented the remedies of judicial review not to provide an appeal machinery but to ensure that the decision maker does not exceed or abuse his powers”); R v Broadcasting Complaints Commission, ex p Granada Television Ltd [1995] 3 EMLR 163 (“Parliament has not provided any right of appeal against the decisions of the BCC. This indicates a clear intention to leave to the BCC alone the determination of [these] difficult questions”); cf {36.1.8} (absence of other safeguards supporting judicial vigilance). 15.2.3 Different ‘appeal models’. CPR 52.11 (appeal court generally conducts a “review of the decision of the lower court” rather than a “re-hearing”); {2.5.2} (‘point of law’/‘error of

33The

equivalent paragraph in a previous edition was relied on in ex p Yunus [2005] FJHC 512 (High Court of Fiji) (Judge Pathik).

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law’ jurisdiction includes all judicial review grounds); General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193 at §37 (“conventional appellate review is … not infrequently circumscribed by considerations of respect for the original or first instance decision-maker”); Solicitors Regulation Authority v Siaw [2019] EWHC 2737 (Admin) at §§31-34 (applicable legal principles on appeal from specialist disciplinary tribunal, including “review” function requiring “particular caution and restraint” as to primary facts, evaluation of facts and sanction); Hussain v General Pharmaceutical Council [2018] EWCA Civ 22 at §70 (High Court jurisdiction on disciplinary appeal “an appellate one, not a supervisory one. It is therefore not akin to judicial review … On the other hand …, it is not the role of the Court simply to take the decision as to sanction again and substitute its own view”); Solicitors Regulation Authority v Day [2018] EWHC 2726 (Admin) at §62 (“the appellate court is not engaged in an entire rehearing on the facts”); Wood v Kingston upon Hull City Council [2017] EWCA Civ 364 [2018] 1 WLR PTSR 131 at §35 (appeal against an improvement notice a “rehearing … on the merits”); Heesom v Public Services Ombudsman for Wales [2014] EWHC 1504 (Admin) [2015] PTSR 222 at §44 (appeal “beyond a simple review of the decision on public law grounds” but not a “full rehearing”); In re B (A Child) (Residence: Biological Parent) [2009] UKSC 5 [2009] 1 WLR 2496 at §39 (appeal against exercise of discretion only if plainly wrong); Lloyd v McMahon [1987] AC 625, 697D-F (statutory appeal as “a rehearing of the broadest possible scope”). 15.2.4 Judicial review similar to an ‘appeal’. Begum v Tower Hamlets LBC [2003] UKHL 5 [2003] 2 AC 430 at §47 (Lord Hoffmann: “the gap between judicial review and a full right of appeal is seldom in practice very wide. Even with a full right of appeal it is not easy for an appellate tribunal which has not itself seen the witnesses to differ from the decision-maker on questions of primary fact and … on questions of credibility”), §99 (Lord Millett, describing the limitations on an appeal “on a point of law” as “not very different from the limitations which practical considerations impose on an appellate court with full jurisdiction to entertain appeals on fact or law but which deals with them on the papers only and without hearing oral evidence”); {2.5.2} (‘point of law’/‘error of law’ jurisdiction includes all judicial review grounds); {16.3.3} (error of law: an appellate approach except for Court’s discretion).

15.3 ‘Legality not correctness’. This formulation of the forbidden substitutionary approach draws an important distinction, but it introduces two pitfalls. First, because ‘legality’ needs to be understood in its broader sense of all grounds for judicial review (including reasonableness and fairness), not just ‘legality’ in a narrow sense. Second, because ‘legality’ can itself involve a ‘correctness’-review (eg when the judicial review Court decides a question of law or precedent/objective fact). 15.3.1 Lawfulness/legality not correctness. R (Christian Concern) v Secretary of State for Health and Social Care [2020] EWHC 1546 (Admin) [2020] ACD 84 at §4 (Singh LJ: “The role of this Court, as always in judicial review proceedings, is to determine the lawfulness of the … decision, and nothing else”); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 [2009] AC 756 at §41 (Lord Bingham: “The issue … is not whether his decision was right or wrong, nor whether the [Court] agrees with it, but whether it was a decision which the Director was lawfully entitled to make”); Sutton LBC v Davis [1994] Fam 241, 249F (“A decision can be lawful without being correct”); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1161A (question is not whether the defendant public authority reaches “a conclusion which is correct in the eyes of the court”); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 663C (no interference by the Court with “administration whether good or bad which is lawful”); R v Criminal Cases Review Commission, ex p Pearson [1999] 3 All ER 498, 523e-f (“If this court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its function”); R v Secretary of State for Trade, ex p Anderson Strathclyde Plc [1983] 2 All ER 233, 243f (“Whether [the Secretary of State] was right or wrong … is a matter of political judgment, and not a matter of law”); Secretary of State for Education and Science v Tameside Metropolitan Borough 206

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Council [1977] AC 1014, 1074H-1075C (“it is quite unacceptable … to proceed from ‘wrong’ to ‘unreasonable’. … History is replete with genuine accusations of unreasonableness when all that is involved is disagreement, perhaps passionate, between reasonable people”); R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513, 560H-561A (“A claim that a decision under challenge was wrong leads nowhere, except in the rare case where it can be characterised as so obviously and grossly wrong as to be irrational”). 15.3.2 Lawfulness not wisdom. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [2018] AC 61 at §5 (“this case has nothing to do with … the wisdom of the decision to withdraw from the European Union” but “issues of law”); R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 536D-E (Lord Keith at 536D-E: “the courts must be careful not to invade the political field and substitute their own judgment for that of the Minister. The courts judge the lawfulness not the wisdom of the decision”); R v Cumbria County Council, ex p NB [1996] ELR 65, 72H (“The wisdom of its decision is not a matter upon which this court is empowered to express a view”); R v Local Government Boundary Commission, ex p Somerset, Avon & Cleveland County Councils [1994] COD 517 (see transcript) (“ours not to reason why; we have to see whether there was a judicially reviewable error”). 15.3.3 Not whether the Court agrees. R v Home Secretary, ex p Bateman & Howse (1995) 7 Admin LR 175, 183G-H (Sir Thomas Bingham MR: “it was open to him so to conclude. It is not a question whether I, as a member of this court, agree with him or not”); R v General Medical Council ex p Colman [1990] 1 All ER 489, 511d (“it is quite beside the point to consider whether I would have reached the same conclusion”).

15.4 ‘Not the merits’.34 This is another favourite formulation of the warning against the forbidden substitutionary approach. It works well, provided that what is ruled out is the combination of (a) a substitutionary (correctness) review, applied to (b) ‘soft’ questions (eg judgment, discretion, policy). Beyond those restrictions, there may well be ‘merits review’ (a term which is perhaps apt to mislead), at least in ‘correcting’ certain hard-edged questions and closely scrutinising others (eg where required in human rights cases). 15.4.1 Judicial review is not ‘merits’ review. R (BACI Bedfordshire Ltd) v Environment Agency [2019] EWCA Civ 1962 [2020] Env LR 16 at §91 (claimant “attacks the [defendant]’s assessment on its merits, which is not possible in a claim for judicial review”); R (Horeau) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin) [2019] 1 WLR 4105 (DC) (CA is [2020] EWCA Civ 1010) at §326 (“judicial review is not an appeal against governmental decisions on their merits”, endorsed in R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 [2019] 1 WLR 5765 at §54); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 401G (“The issue here is not whether the minister’s instruction was proper or fair or justifiable on its merits. These matters are not for the courts to determine”); Champion v Chief Constable of the Gwent Constabulary [1990] 1 WLR 1, 12C-D (judicial review is “not concerned with the merits”). 15.4.2 Example of a ‘merits’ jurisdiction. See eg Competition and Markets Authority v Flynn Pharma Ltd [2020] EWCA Civ 339 at §136 (Competition Appeal Tribunal under Competition Act 1998 having “a merits jurisdiction. … It is empowered under the legislation to come to its own conclusions on issues of disputed fact and law and can hear fresh evidence … to enable it to do so”). 15.4.3 Judicial review can supply a ‘merits’ review where necessary. T-Mobile (UK) Ltd v Office of Communications [2008] EWCA Civ 1373 [2009] 1 WLR 1565 (judicial review capable of constituting an appeal having regard to the “merits” under an EU Directive), at

34The

equivalent paragraph in a previous edition was relied on in Chand v PSAB [2008] FJHC 463 at §16 (Hickie J).

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§18 (limits on judicial review “are set by the inherent jurisdiction of the court”), §19 (but “the common law in the area of judicial review is adaptable so that the rules as to judicial review are flexible enough to accommodate whatever standard is required”, here by an EU Directive), §27 (“judicial review can provide a full merits investigation where that is necessary”). 15.4.4 HRA/proportionality: not generally a ‘full merits review’. {58.5.2} (proportionality: not a ‘full merits review’). 15.4.5 ‘Full merits review’ under the HRA. R (YZ) v Oxleas NHS Foundation Trust [2017] EWCA Civ 203 [2017] 1 WLR 3518 at §§86-87 (Wilkinson “full merits review” not applicable to judicial review challenge to transfer to high security psychiatric hospital); R (JB) v Haddock [2006] EWCA Civ 961 [2006] HRLR 1237 at §§13, 64 (in relation to forced medical treatment, “full merits review” with patient entitled to require oral evidence and cross-examination), applying R (Wilkinson) v Responsible Medical Officer Broadmoor Hospital [2001] EWCA Civ 1545 [2002] 1 WLR 419 at §36 (“a full merits review”); R (G) v London Borough of Ealing [2002] EWHC 250 (Admin) at §15 (“in some contexts nothing short of a full merits review will suffice even in a judicial review case”).

15.5 ‘Court does not substitute its own judgment’.35 This is perhaps the best of the formulations warning against the impermissible (forbidden) approach on judicial review. It has three advantages. (1) It recognises that the warning applies only to certain types of question: labelled here as matters of ‘judgment’. (2) It explains what judges should not do regarding those questions: substitute their own view. (3) It reflects the position as to remedy: in general, the Court, when granting judicial review, will remit for reconsideration rather than impose a substituted outcome. 15.5.1 Court does not substitute its own judgment: Lord Kerr’s guidance. General Medical Council v Michalak [2017] UKSC 71 [2017] 1 WLR 4193 §22 (Lord Kerr: the judicial review Court “does not substitute its own decision for that of the decision-maker”); In Re Brewster [2017] UKSC 8 [2017] 1 WLR 519 at §49 (Lord Kerr: “The question whether justification has been demonstrated must be assessed objectively. … That is not to say, however, that the court should substitute its view for that of the decision-maker”). 15.5.2 Court does not substitute its judgment: other observations. R (Jefferies) v SSHD [2018] EWHC 3239 (Admin) at §100 (Davis LJ: “this remained an intensely political decision. It is not for judges in judicial review proceedings, under the guise of an assessment of proportionality and justification, simply to substitute their own views, whatever they may be, of the rights and wrongs of such a decision”); R v Birmingham City Council, ex p O [1983] 1 AC 578, 594H-595A (“The court has no jurisdiction to substitute its own opinion”); O’Reilly v Mackman [1983] 2 AC 237, 282G (warning against the “temptation, not always easily resisted, to substitute its own view of the facts”); In re Westminster City Council [1986] AC 668, 715G (“Whether a court … would have made the same decision is irrelevant”); Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1160G (“it is no part of [the] purpose [of judicial review] to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question”). 15.5.3 No ‘substitution’: nature of remedy. R v Entry Clearance Officer Bombay, ex p Amin [1983] 2 AC 818, 829B-C (Lord Fraser: “Judicial review … is made effective by the court quashing an administrative decision without substituting its own decision”); {2.6.2} (remittal means consideration afresh); {2.6.3} (remittal means appropriate body decides); {24.4.2} (substitutionary remedy: Court’s power of retaking the decision).

35The

equivalent paragraph in a previous edition was relied on in WAL (Nigeria) v IPAT [2019] IEHC 581 at §7 (Richard Humphreys J).

208

P16 Hard-edged questions. There are certain questions which the judicial review Court evaluates for itself, imposing its own judgment as a primary decision-maker. 16.1 Hard-edged review: correctness standard 16.2 Precedent fact/objective fact as hard-edged review 16.3 Error of law as hard-edged review 16.4 Interpretation as hard-edged review 16.5 Procedural fairness as hard-edged review 16.6 Hard-edged review: further aspects

16.1 Hard-edged review: correctness standard.36 ‘Hard-edged’ questions represent an important exception to the rule against the ‘forbidden substitutionary approach’. They can be thought of as questions which the public body has to decide, but is not permitted to get wrong. In reviewing such questions, the Court does precisely what is forbidden on ‘soft’ review: it does ‘substitute its own view’. The role of the reviewing Court, in relation to these sorts of question, is to ensure objective ‘correctness’. 16.1.1 A ‘hard-edged’ question. R v Monopolies & Mergers Commission, ex p South Yorkshire Transport Ltd [1993] 1 WLR 23, 32D-F (Lord Mustill, distinguishing between “a broad judgment whose outcome could be overturned only on the ground of irrationality” and “a hard-edged question”), applied in R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin) [2010] HRLR 12 at §18 (Court needing to determine “hardedged” questions of fact, in claim under the HRA); R (FF) v Director of Legal Aid Casework [2020] EWHC 95 (Admin) [2020] 4 WLR 40 at §60(v) (statutory test of “benefit” as “a hardedged test”, meaning: “As a matter of law, there is a right answer”); R (Homesun Holdings Ltd) v Secretary of State for Energy and Climate Change [2012] EWCA Civ 28 [2012] Env LR 25 at §14 (Moses LJ, describing a question of vires as a “hard-edged question”). 16.1.2 Questions of objective judgment for the Court. R v SSHD, ex p Khawaja [1984] AC 74 (“illegal entrant” a question for the Court); R v Swansea City Council, ex p Elitestone Ltd [1993] 2 PLR 65, 73C-D (whether property constituting “buildings” treated “as a matter of objective judgment”); R v SSHD, ex p Zeenat Bibi [1994] Imm AR 326, 329 (legal status of marriage a question on which “the court must make up its own mind”); White & Collins v Minister of Health [1939] 2 KB 838 (whether land part of a park a question for the Court to decide for itself); R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349, 396G (“the ‘intention of Parliament’ as an objective concept, not subjective”). 16.1.3 Key distinction between soft and hard-edged questions. R (Ali) v Secretary of State for Justice [2013] EWHC 72 (Admin) [2013] 1 WLR 3536 at §61 (Beatson LJ and Irwin J: “It does not … follow … that the court is required to adopt a substitutionary, and in effect appellate, approach. So, for example, … whereas, ‘[in] general, a question of ‘interpretation’ (or ‘construction’) will be an objective legal question for the court to decide … a question of ‘application’ will be a ‘soft’ review’. Again, when the doctrine of proportionality requires a reviewing court to assess the balance which the decision-maker has struck rather than merely whether it is within the range of rational or reasonable decisions, that does not mean that there has been a shift to merits review. It does not mean that the requirement of proportionality requires ‘the courts to substitute their own views for those of other public authorities on

36The

equivalent paragraph in a previous edition was relied on in R v East Sussex County Council, ex p T [1997] ELR 311 at 319E (Keene J); Geall v SSE (1999) 78 P & CR 264 at 273 (Schiemann LJ); R (Al-Sweady) v SSD [2009] EWHC 2387 (Admin) [2010] HRLR 12 at §20 (Scott Baker LJ).

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all matters of policy, judgment and discretion’”) (CA is [2014] EWCA Civ 194 [2014] 1 WLR 3202); Maharaj v Petroleum Company of Trinidad and Tobago Ltd [2019] UKPC 21 at §39 (Lord Sales, distinguishing between “a decision to be reviewed according to a simple rationality standard” and the situation where “the court [has] a role itself as primary decisionmaker”); R (FF) v Director of Legal Aid Casework [2020] EWHC 95 (Admin) [2020] 4 WLR 40 at §60 (“benefit” as “a matter for determination as a question of law after the relevant decision-maker has found and then evaluated the relevant facts”; “a hard-edged test” with “a right answer”); R (Cunningham) v Hertfordshire County Council [2016] EWCA Civ 1108 [2017] 1 WLR 2153 at §10; R (Larkfleet Ltd) v South Kesteven District Council [2015] EWCA Civ 887 [2016] Env LR 4 at §40 (Sales LJ, speaking of an issue on which “an evaluative judgment is required”, identifying “the question” as “whether the proper legal approach is to say that the primary decision-maker to make that judgment is the relevant planning authority …, subject to rationality review by the court on Wednesbury principles, or to say that the court is itself the primary decision-maker … and should form its own judgment on that question”); R (Sainsbury’s Supermarkets Ltd) v Independent Reviewer or Advertising Standards Authority Adjudications [2014] EWHC 3680 (Admin) [2015] ACD 23 at §151 (Wilkie J: question “a hard edged question of law and not a matter to be determined on a ‘Wednesbury reasonable’ basis”); R v Monopolies & Mergers Commission, ex p South Yorkshire Transport Ltd [1993] 1 WLR 23, 32D-F (whether question is hard-edged raises a matter going to “the proper function of the courts”); R v Oldham Metropolitan Borough Council, ex p Garlick [1993] AC 509, 520e (distinguishing a question “entrusted to the authority and so can only be reviewed on Wednesbury grounds” from “a question of precedent fact going to the jurisdiction and so to be decided by the court”). 16.1.4 Court decides the breadth of the range of reasonable responses. Pham v SSHD [2015] UKSC 19 [2015] 1 WLR 1591 at §107 (Lord Sumption: “It is for the court to assess how broad the range of rational decisions is in the circumstances of any given case”); {57.1.2} (reasonableness: an objective concept).

16.2 Precedent fact/objective fact as hard-edged review. The theory of a ‘precedent fact’ (or ‘antecedent fact’) is that a factual question which the public authority is required to address may constitute a ‘condition precedent’ to the proper exercise of the public authority’s function, such that the Court must be satisfied that – viewed objectively – the condition precedent is met; otherwise, the authority has acted unlawfully. Having identified a precedent fact question, the Court simply asks the question for itself, and can consider evidence which was not before the decision-maker. Alongside ‘precedent’ fact is an emergent principle of ‘objective fact’ where, usually by reason of the proper interpretation of a statutory scheme, certain factual questions are characterized as to be determined by the Court on a correctness standard. 16.2.1 Judicial review for error as to precedent fact. {49.1} (precedent fact). 16.2.2 Precedent fact: Court investigating the issue for itself. R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557 at §29 (Lady Hale, describing the doctrine of “jurisdictional or precedent fact of which the ultimate arbiters are the courts rather than the public authorities concerned”), §31 (Court decides “which questions are to be regarded as setting the limits to the jurisdiction of the public authority”); R (CJ) v Cardiff City Council [2011] EWCA Civ 1590 at §§22-23 (in deciding precedent fact age assessment question, Court acts in an inquisitorial role); R (Maiden Outdoor Advertising Ltd) v Lambeth LBC [2003] EWHC 1224 (Admin) at §35 (precedent fact meaning “a matter of fact which must be established before any [enforcement] action can be taken”), §36 (so that “the court is entitled, if there is a material dispute, to resolve it for itself”); Eshugbayi Eleko v Government of Nigeria [1931] AC 662, 670 (Lord Atkin: “the duty of the Courts to investigate the issue”); R v SSHD, ex p Khawaja [1984] AC 74 (“illegal entrant” as a precedent fact); R v Oldham Metropolitan Borough Council, ex p Garlick [1993] AC 509, 520E (Lord Griffiths, describing “a question of precedent fact going to the jurisdiction and so to be decided by the court”); Silver Mountain 210

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Investments Ltd v Attorney-General of Hong Kong [1994] 1 WLR 925, 934A (referring to the situation where there is a “precondition of objective fact”); Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, 112C-114E. 16.2.3 Objective question of fact. {49.2} 16.2.4 Fresh evidence and precedent fact/objective fact. {17.2.12}

16.3 Error of law as hard-edged review.37 Errors of law are correctable by judicial review. Questions of law are ‘hard-edged’ questions, which the reviewing Court asks and answers for itself, substituting its own conclusion for that of the public authority. The Court also has the function of determining whether a question is one of ‘law’. A material error of law is a ground for intervention. 16.3.1 Judicial review for error of law. {P48} (error of law); {P4} (materiality); {48.1.7} (fact/law: a flexible policy-informed approach). 16.3.2 Error of law as hard-edged review. R (Kingston upon Hull City Council) v Secretary of State for Business, Innovation and Skills [2016] EWHC 1064 (Admin) [2016] PTSR 967 at §55 (Kerr J: “The notion of more than one correct construction, taken to its logical limit, would be subversive of the rule of law. It would make the executive and not the courts responsible for deciding what the law is”), §56 (“it is critical that the primary authority gets the law right”), §58 (“wrong” to speak of “more than one tenable construction”), §59 (the suggestion that “the court should not in a judicial review ‘usurp a function bestowed on the [Secretary of State]’ …, by ‘second-guessing its decisions on the merits’ … flies in the face of constitutional propriety. … [I]t is for the court to say what the law is, not the Minister”); R (Akester) v Department for Environment Food and Rural Affairs [2010] EWHC 232 (Admin) [2010] Env LR 561 at §82 (Owen J: “if wrong in law … the question of whether it was a reasonable error to have made is irrelevant”); R (H) v A City Council [2011] EWCA Civ 403 [2011] UKHRR 599 at §84 (Munby LJ: “we are not here concerned with Wednesbury reasonableness but with vires”); R v Central Arbitration Committee, ex p BTP Tioxide Ltd [1981] ICR 843, 856B-D (“A tribunal either misdirects itself in law or not according to whether it has got the law right or wrong, and that depends on what the law is and not on what a lay tribunal might reasonably think it was. In this field there are no marks for trying hard but getting the answer wrong”); R v Elmbridge Borough Council, ex p Health Care Corporation Ltd [1991] 3 PLR 63, 68G (“In order to decide whether they have misapplied the law the court itself has to come to the conclusion as to what the law is. It cannot duck the issue by saying the law is very difficult and there are conflicting views and therefore the local authority are not unreasonable in taking one view”); Davies v Presbyterian Church of Wales [1986] 1 WLR 323, 328F-G (“The question to be determined is a question of law. … If the … tribunal erred in deciding that question, the decision must be reversed and it matters not that other industrial tribunals might have reached a similar erroneous conclusion in the absence of an authoritative decision by a higher court”); Seukeran Singh v Commissioner of Police [2019] UKPC 26 at §31 (“clear error of law” and so no need to “dwell further on the unpromising argument that it was open to him to proceed upon his own reasonable interpretation, even if it was wrong”). 16.3.3 Error of law: an appellate approach except for Court’s discretion. Mallinson v Secretary of State for Social Security [1994] 1 WLR 630, 638H-639B (Lord Woolf, explaining the court’s hard-edged approach to a “statutory appeal on a point of law”, but contrasting “the residual discretion which it has on an application for judicial review to limit the circumstances in which it grants [permission] or [remedy]”). 16.3.4 Breach of duty as hard-edged review. R (London Criminal Courts Solicitors’ Association) v Lord Chancellor [2015] EWHC 295 (Admin) [2015] ACD 95 at §26 37The equivalent paragraph in a previous edition was relied on in R v East Sussex County Council, ex p Tandy [1997] 3 FCR

525; Bhatia Best Ltd v Lord Chancellor [2014] EWHC 746 (QB) [2014] 1 WLR 3487 at §54 (Silber J).

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(Laws LJ: “if the Lord Chancellor failed to comply with his duty under [the statute], the court’s inevitable judgment against him would not be qualified by any considerations of respect for his role as primary decision-maker. He would simply be acting illegally, and the court would say so”) (CA is [2015] EWCA Civ 230 [2016] 3 All ER 296); R (Alvi) v SSHD [2012] UKSC 33 at §38 (Lord Hope: “The rule of law requires that the Secretary of State must fulfil the duty that has been laid on her by section 3(2) of the 1971 Act. In the event of a challenge it is for the courts to say whether or not she has done so”); {39.3} (discretion and duty in action). 16.3.5 Breach of the HRA as hard-edged review. Re B (Secure Accommodation Order) [2019] EWCA Civ 2025 [2020] Fam 221 at §121 (Green LJ: “It is the express duty of a court under the HRA itself to ensure observance with human rights. A court cannot delegate that function to some other public body. It must form its own conclusion”); R (TP) v Secretary of State for Work and Pensions [2019] EWHC 1127 (Admin) [2019] PTSR 2123 at §45 (Swift J: “On an Article 14 claim the court decides for itself whether the distinction drawn is Article 14 compliant”) (CA is [2020] EWCA Civ 37); R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §132 (“As in any case where a rights violation is alleged, the question is not whether the decision-maker properly considered whether there would be an unlawful interference with individual rights but whether there has in fact been such an interference. … That is a question for the court to decide for itself. In doing so, the court may give weight to opinions of the decision-maker which reflect its institutional expertise. But it is the court’s judgment that is determinative. This is the well-established approach in relation to Convention rights. … It is equally applicable to common law rights, as it follows from the constitutional role of the judiciary whereby questions of legal right are the province of the courts”); R (AR) v Hammersmith and Fulham LBC [2018] EWHC 3453 (Admin) at §33 (Judge Markus QC: “the role of the Court is to assess for itself whether the claimant’s Convention rights require the provision of accommodation”); R (Kiarie) v SSHD [2017] UKSC 42 [2017] 1 WLR 2380 (judicial review of certification of appeal) at §43 (court must “decide for itself whether deportation … would breach the applicant’s Convention rights” and “must assess for itself the proportionality of deportation”), §47 (inappropriate to apply a Wednesbury standard to the Secretary of State’s findings of fact; “the residual power of the court to determine facts … needs to be recognised”); R (A) v Secretary of State for Health [2017] UKSC 41 [2017] 1 WLR 2492 at §33 (Lord Wilson, describing “the question of fair balance, which, while free to attach weight to the fact that the measure is the product of legislative choice, the court must answer for itself”); Ali v SSHD [2016] UKSC 60 [2016] 1 WLR 4799 at §50 (tribunal “has to decide whether deportation is proportionate in the particular case” but “should give appropriate weight to Parliament’s and the Secretary of State’s assessments of the strength of the general public interest”); R (Lumsdon) v Legal Services Board [2015] UKSC 41 [2016] AC 697 at §108 (“It is for the court to decide whether the scheme is proportionate, as part of its function in deciding on its legality”); JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735 [2019] 1 WLR 1313 at §88 (Leggatt LJ, referring to “the fundamental principle that ultimately it is for the court to decide whether or not there has been a breach of a Convention right”). 16.3.6 Breach of common law/constitutional right/value: hard-edged review. A v British Broadcasting Corporation [2014] UKSC 25 [2015] AC 588 at §27 (Lord Reed: “Since the principle of open justice is a constitutional principle to be found in the common law, it follows that it is for the courts to determine its ambit and its requirements, subject to any statutory provision”); Kennedy v Charity Commission [2014] UKSC 20 [2015] AC 455 at §132 (court “deciding itself whether the open justice principle requires disclosure”); R (D) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at §190 (whether, under the principle of legality, infringement of open justice principle is justified “by a pressing social need and as being the minimum necessary to achieve the objectives sought … are matters for the court and not for the decision-maker”). 16.3.7 International law/instrument: whether hard-edged review. R (Charles) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin) at §48 (citing Al-Maki v Reyes [2017] UKSC 61 [2019] AC 735 at §12 per Lord Sumption: “an international 212

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treaty has only one meaning”); Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 [2017] ICR 1327 at §35 (Lord Sumption: “If it is necessary to decide a point of international law in order to resolve a justiciable issue and there is an ascertainable answer, then the court is bound to supply that answer”), §34 (HRA:ECHR Art 6 compatibility requiring asking whether immunity required by a “relevant rule of international law”), §35 (“There are circumstances in which an English court considering the international law obligations of the United Kingdom may properly limit itself to asking whether the United Kingdom has acted on a ‘tenable’ view of those obligations. … Thus the court may in principle be reluctant to decide contentious issues of international law if that would impede the executive conduct of foreign relations. Or the rationality of a public authority’s view on a difficult question of international law may depend on whether its view of international law was tenable, rather than whether it was right. … Or the court may be unwilling to pronounce on an uncertain point of customary international law which only a consensus of states can resolve”), §35 (no “general rule that the English courts should not determine points of customary international law but only the ‘tenability’ of some particular view about them”); R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2759 (Admin) [2003] 3 LRC 335 at §10 (question of international law as “a sharp-edged question of law”); R v SSHD, ex p Adan [2001] 2 AC 477 (CA), 497B-D (questions of interpretation of the Refugee Convention as questions of law for the court); R v Secretary of State for the Environment, Transport and the Regions, ex p Channel Tunnel Group Ltd [2001] EWCA Civ 1185 at §57 (interpretation of an international instrument as a question for the Court).

16.4 Interpretation as hard-edged review.38 The general principle is that a question of ‘interpretation’ (or ‘construction’) will be an objective legal question for the Court to decide for itself, whereas a question of ‘application’ will be a question for ‘soft’ review. Interpretation of legislation is a question of law. Interpretation of other instruments and public documents is also recognised as appropriate for hard-edged review: the Court asks whether the public body’s interpretation was ‘correct’ (not whether it was ‘reasonable’ or ‘tenable’). 16.4.1 Statutory interpretation: a question for the Court. R (Palestine Solidarity Campaign Ltd) v Secretary of State for Housing, Communities and Local Government [2020] UKSC 16 [2020] 1 WLR 1774 at §67 (Lady Arden and Lord Sales (dissenting in the result): “it is not good enough if the minister misconstrues the legislation in good faith. That is because the courts are the authoritative organ for the interpretation of a statutory power”); R (Mawbey) v Lewisham LBC [2019] EWCA Civ 1016 [2020] PTSR 164 at §19 (meaning of “mast” in statutory instrument “a matter of law”); R (B) v Officer of the Independent Adjudicator [2018] EWHC 1971 (Admin) [2019] PTSR 769 at §49 (meaning of “relevant proceedings” in statute “a matter of statutory construction” which “is objective”, it being “appropriate that the court should … construe the provision”); Macris v Financial Conduct Authority [2017] UKSC 19 [2017] 1 WLR 1095 at §11 (meaning of “identifies” in the statute a question of law); R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 [2015] AC 1344 at §33 (Lady Hale, describing “a pure question of statutory construction”); Haile v Waltham Forest LBC [2015] UKSC 34 [2015] AC 1471 (SC authoritatively interpreting “became homeless intentionally” in the statute); Yemshaw v Hounslow LBC [2011] UKSC 3 [2011] 1 WLR 433 at §25 (Lady Hale: “it is not for government and official bodies to interpret the meaning of words which Parliament has used. That role lies with the courts”), §56 (Lord Brown: “It is … for the courts not the executive to interpret legislation”); R (A) v Croydon LBC [2009] UKSC 8 [2009] 1 WLR 2557 at §21 (Lady Hale, describing “the respective roles of public authorities and the courts when determining whether the conditions exist for the exercise of a statutory power or duty. The court decides what the words mean and the authority decides whether the facts fit those words”); E’s Applications [1983] RPC 231, 253 (Lord Diplock, referring 38The

equivalent paragraph in a previous edition was relied on in R (Ali) v Secretary of State for Justice [2013] EWHC 72 (Admin) [2013] 1 WLR 3536 at §61 (Beatson LJ and Irwin J).

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to “the important constitutional principle that questions of construction of all legislation primary or secondary are questions of law to be determined authoritatively by courts of law; that errors in construing primary or secondary legislation made by inferior tribunals that are not courts of law, however specialised and prestigious they may be, are subject to correction by judicial review”); R v Barnet LBC, ex p Nilish Shah [1983] 2 AC 309, 341A (Lord Scarman: “the meaning to be attributed to enacted words is a question of law, being a matter of statutory interpretation”); R v DPP, ex p Kebilene [2000] 2 AC 326 (DC), 344B (Lord Bingham CJ: “In their interpretation of statutes British judges have no discretion: they must give the statutory language what they take to be its ordinary and natural meaning”); R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349, 396G (“the ‘intention of Parliament’ is an objective concept”); R (Goodman) v London Borough of Lewisham [2003] EWCA Civ 140 [2003] Env LR 644 at §8 (as to “the authority’s understanding of the meaning in law of the expression used in the Regulation”: “If the authority reaches an understanding of those expressions that is wrong as a matter of law, then the court must correct that error: and in determining the meaning of the statutory expressions the concept of reasonable judgment as embodied in Wednesbury simply has no part to play”). 16.4.2 Statutory purpose as a question for the Court. R (Soltany) v SSHD [2020] EWHC 2291 (Admin) at §242 (Cavanagh J: “it is for the Court to ascertain the purpose of a statute from its wording”); R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 401H (treating statutory purpose as a question for the reviewing court on the evidence before it); Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997 (purpose of the statute treated as a question of law for the Court, involving construction of the statute); R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme [2001] 2 AC 349, 396G (“the ‘intention of Parliament’ is an objective concept”). 16.4.3 Interpretation of policy a question for the Court: general.39 R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074 at §56 (Scheme of Delegation to be interpreted objectively, by the Court); R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2018] EWHC 969 (Admin) [2019] QB 251 at §47 (coroner’s policy as published to be interpreted objectively); R (Davies) v HMRC [2011] UKSC 47 [2011] 1 WLR 2625 at §§45, 64 and 70 (meaning of Revenue booklet a question for the court); R v DPP, ex p Duckenfield [2000] 1 WLR 55, 73B (policy was not subjectively believed to cover this situation, but “the policy has to be read objectively”); In re McFarland [2004] UKHL 17 [2004] 1 WLR 1289 at §24 (where ministerial statements “an important source of individual rights and corresponding duties” they must be “interpreted objectively”). 16.4.4 Interpretation of policy a question for the Court: planning. R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3 [2020] PTSR 221 at §21 (“interpretation of a development plan, as of any other legal document, is ultimately a matter for the court”); R (Smith) v Castle Point Borough Council [2019] EWHC 2019 (Admin) at §11 (“the interpretation of the policy is a matter for the Court, and … the authority is obliged to apply policy according to its true interpretation”); R (East Begholt Parish Council) v Babergh District Council [2019] EWCA Civ 2200 at §47 (“Where the meaning of statements of policy is in dispute, the court has a proper role in construing the policy. … A decision-maker’s failure to understand relevant policy is an error of law”); R (Holder) v Gedling Borough Council [2018] EWCA Civ 214 [2018] PTSR 1542 at §20 (“The proper interpretation of planning policy … is a matter for the court”); R (Harvey) v Mendip District Council [2017] EWCA Civ 1784 at §35 (interpretation of development plan as a matter for the court); Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 [2012] PTSR 983 at §18 39The

equivalent section in a previous edition was relied on in Cranage Parish Council v First Secretary of State [2004] EWHC 2949 (Admin) at §44 (Davis J); R (Raissi) v SSHD [2008] EWCA Civ 72 [2008] QB 836 at §118 (Hooper LJ); Johnson Brothers v SSCLG [2009] EWHC 580 (Admin) at §13 (HHJ Farmer QC); R (Vale of White Horse DC) v SSCLG [2009] EWHC 1847 (Admin) at §21 (Robin Purchas QC).

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(“policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context”), applied in Beau Songe Developments Ltd v United Basalt Products Ltd [2018] UKPC 1 at §§34-36; Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37 [2017] 1 WLR 1865 at §22; {29.5.10} (interpreting planning policy). 16.4.5 Interpretation of policy a question for the Court: immigration.40 R (Hemmati) v SSHD [2019] UKSC 56 [2019] 3 WLR 1156 at §69 (Lord Kitchen: “the court is the final arbiter of what a policy means”); R (MS (India)) v SSHD [2017] EWCA Civ 1190 [2018] 1 WLR 389 at §38 (meaning of immigration policy a question “for the court itself to decide”); R (O) v SSHD [2016] UKSC 19 [2016] 1 WLR 1717 at §28 (“the court’s approach to the meaning of the policy is to determine it for itself and not to ask whether the meaning which the Home Secretary has attributed to it is reasonable”); Mandalia v SSHD [2015] UKSC 59 [2015] 1 WLR 4546 at §29 (Lord Wilson: “the search is for the proper interpretation of the process instruction, no more and no less. Indeed in that regard it is now clear that its interpretation is a matter of law which the court must therefore decide for itself. … Previous suggestions that the courts should adopt the Secretary of State’s own interpretation of her immigration policies unless it is unreasonable … are therefore inaccurate”). 16.4.6 Interpretation a question for the Court: other instruments/public documents. R (Squire) v Shropshire Council [2019] EWCA Civ 888 [2020] 1 CMLR 2 at §43 (“objective” interpretation of “public documents” including environmental permit), applied in R (BACI Bedfordshire Ltd) v Environment Agency [2019] EWCA Civ 1962 [2020] Env LR 16 at §61; R (Langton) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 597 (Admin) at §§66-70 (court’s objective interpretation of SSSI citations); UBB Waste Essex Ltd v Essex County Council [2019] EWHC 1924 (Admin) at §25 (interpretation of planning permission a question for the Court); R (Network Rail Infrastructure Ltd) v Secretary of State for Environment, Food and Rural Affairs [2018] EWCA Civ 2069 [2019] PTSR 292 at §§39-40 (objective construction by the court of condition in a statutory licence, consent or permission); R (Guerry) v Hammersmith and Fulham LBC [2018] EWHC 2899 (Admin) at §38 (objective interpretation of “documents promulgated by an authority or other institution”); R (Berkshire Assets (West London) Ltd) v Hounslow LBC [2018] EWHC 2896 (Admin) (Secretary of State’s direction to planning authorities); R v Director of Passenger Rail Franchising, ex p Save Our Railways [1996] CLC 589, 601D (Secretary of State’s directions: “the Court … cannot … abdicate its responsibility to give the document its proper meaning”); R (Norwich and Peterborough Building Society) v Financial Ombudsman Service Ltd [2002] EWHC 2379 (Admin) at §§69-71 (Banking Code). 16.4.7 Key distinction between interpretation and application. R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3 [2020] PTSR 221 at §21 (Lord Carnwath: although “interpretation of a development plan … is ultimately a question for the court”, “many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment”), §§39-40 (here, “a matter of planning judgement not law”); Keep Bourne End Green v Buckinghamshire Council [2020] EWHC 1984 (Admin) at §76 (Holgate J); R (Cotter) v National Institute for Health and Care Excellence [2020] EWCA Civ 1037 at §41 (Males LJ, explaining that interpretation of policy guidance a question “for determination by the court, interpreting the document objectively”), §42 (“In contrast, the application of the guidance to particular facts … a matter for the judgment of [the defendant] … susceptible to challenge only on irrationality grounds”); R (East Begholt Parish Council) v Babergh District Council [2019] EWCA Civ 2200 at §47 (interpretation of planning policy a question for the Court), §50 (application of planning policy allowing for “planning judgment”); Gladman Developments Ltd v Canterbury City Council [2019] EWCA Civ 669 [2019] PTSR 1714 at §22 (“If the

40The

equivalent paragraph in a previous edition was relied on in R (K) v SSHD [2010] EWHC 3102 (Admin) at §45 (Beatson J).

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relevant policies of the plan have been properly understood in the making of the decision, the application of those policies is a matter for the decision-maker, whose reasonable exercise of planning judgment on the relevant considerations the court will not disturb”); Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37 [2017] 1 WLR 1865 at §26 (emphasising the need to “distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgment in the application of that policy”), §72 (Lord Gill: “it is the proper role of the courts to interpret a policy where the meaning is contested, while that of the planning authority is to apply the policy to the facts of the individual case”); R (O) v SSHD [2016] UKSC 19 [2016] 1 WLR 1717 at §§26, 36 (leaving open, in the context of detention and liberty, whether application of policy limited to traditional rationality enquiry); Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 [2012] PTSR 983 at §18 (Lord Reed, explaining that planning policy to be “interpreted objectively in accordance with the language used”), §19 (but may be “framed in language whose application to a given set of facts requires the exercise of judgment”), §20 (the “application to particular factual situations would often be a matter of judgment for the planning authority”); R (LE (Jamaica) v SSHD [2012] EWCA Civ 597 at §29(viii) (Richards LJ, distinguishing between “the question whether the decision-maker directed himself correctly as to the meaning of the policy (a matter on which the court is the ultimate decision-maker) and the question whether, if so, the decision-maker acted within the limits of his discretion when applying the policy to the facts of the case (a matter in relation to which a Wednesbury test applies)”); R (Thames Water Utilities Ltd) v Water Services Regulation Authority [2012] EWCA Civ 218 [2012] PTSR 1147 at §23 (whether “the statute [is] to be construed so as to cover the accepted facts … is a question of law”; whether “the facts [are] to be judged as falling within the accepted meaning of the statute … is a question of fact”); R (Muir) v Wandsworth LBC [2018] EWCA Civ 1035 [2018] PTSR 2121 at §26 (meaning of “facilities for … recreation” a question of interpretation not application); R (Crematoria Management Ltd) v Welwyn Hatfield Borough Council [2018] EWHC 382 (Admin) [2018] PTSR 1310 at §30 (“Since judgment is necessarily involved in applying the words of a planning regulation or policy which has an imprecise meaning there will be occasions when different decision-makers confronted with the same factual circumstances will apply the statutory provision or policy statement differently. That is a common feature of the decisionmaking processes in this field of law”). 16.4.8 Interpreting international instruments. {29.5.4} 16.4.9 Interpretation/application: the South Yorkshire Transport approach. R v Monopolies & Mergers Commission, ex p South Yorkshire Transport Ltd [1993] 1 WLR 23 (although statutory criterion absent which “no jurisdiction to proceed”, nevertheless “the criterion … may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case”; “a meaning broad enough to call for the exercise of judgment” needing to be “within the permissible field of judgment”); applied in BBC v Sugar (No 2) [2012] UKSC 4 [2012] 1 WLR 439 at §80 (Lord Walker); and in R (Goodman) v London Borough of Lewisham [2003] EWCA Civ 140 [2003] Env LR 644 at §8.

16.5 Procedural fairness as hard-edged review. The nature and contextual shape of the basic objective standards of procedural fairness, and whether they have been breached, are determined directly by the Courts. Public authorities do enjoy some procedural latitude: to make procedural choices and to do what they consider to be fair and appropriate procedurally. But the standards of procedural fairness which the law requires of public authorities are standards delineated as a primary judgment of the Court. 16.5.1 What procedural fairness requires: an objective question for the Court. R (Help Refugees Ltd) v SSHD [2018] EWCA Civ 2098 [2018] 4 WLR 168 at §122 (Hickinbottom LJ: “When procedural fairness is in question, the court’s function is ‘not merely to review the reasonableness of the decision-maker’s judgment of what fairness required’ … but to consider objectively whether there has been procedural unfairness”); R (Citizens UK) v SSHD [2018] 216

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EWCA Civ 1812 [2018] 4 WLR 123 at §§75, 81, cited in R (Balajigari) v SSHD [2019] EWCA Civ 673 [2019] 1 WLR 4647 at §46 (“the question of whether there has been procedural fairness or not is an objective question for the court to decide for itself. The question is not whether the decision-maker has acted reasonably, still less whether there was some fault on the part of the public authority concerned”); R (Karagul) v SSHD [2019] EWHC 3208 (Admin) at §97 (“an objective question for the court to decide”); Pathan v SSHD [2018] EWCA Civ 2103 [2018] 4 WLR 161 at §53; R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115 at §65 (Lord Reed: “The court must determine for itself whether a fair procedure was followed”); R (Shoesmith) v Ofsted [2011] EWCA Civ 642 [2011] PTSR 1459 at §62 (“The question is whether the procedure, taken as a whole, was objectively fair”); Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 [2006] 1 WLR 781 at §6 (“whether a tribunal … was acting in breach of the principles of natural justice is essentially a question of law”); R (Mahfouz) v General Medical Council [2004] EWCA Civ 233 at §19 (Carnwath LJ: “Where it is alleged that a lower tribunal has acted in breach of the rules of fairness or natural justice, the court is not confined to reviewing the reasoning of the tribunal on Wednesbury principles. It must make its own independent judgment. … Furthermore, the question whether there has been a breach of those principles is one of law, not fact”); R v Panel on Takeovers and Mergers, ex p Guinness Plc [1990] 1 QB 146, 184C-E (“the court will give great weight to the tribunal’s own view of what is fair, and will not lightly decide that a tribunal has adopted a procedure which is unfair. … But in the last resort the court is the arbiter of what is fair”). 16.5.2 Procedural fairness as hard-edged review: further illustrations. R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at §32 (“It is for the Court to decide what is or is not fair. If a consultation procedure is unfair, it does not lie in the mouth of the public authority to contend that it had a discretion to adopt such a procedure”); R v P Borough Council, ex p S [1999] Fam 188, 220B (“It is for the court to determine what is or is not required to satisfy the requirements of fairness”); R v National Lottery Commission, ex p Camelot Group Plc [2001] EMLR 3 at §59 (“it is for the court to decide whether the procedure in this case was unfair, but … in reaching that decision the court should take into account the views of the Commission as to the appropriateness of the procedure”); R v Monopolies and Mergers Commission, ex p Stagecoach Holdings Plc The Times 23 July 1996 (“in the vast majority of cases the court will be unlikely to regard what the MMC has reasonably believed to be fair as unfair”, but: “it is not what the MMC believed, however reasonably, to have been fair that should prevail but what was in fact fair. … [T]he court must be the arbiter of whether in any given circumstances there has been unfairness resulting in injustice and a need to intervene”); R v Cheshire County Council, ex p C [1998] ELR 66, 73G-74B (“the court itself will decide on the relevant material whether fairness required an adjournment”); R v SSHD, ex p Q [2000] UKHRR 386, 393G (whether decision an infringement of constitutional right to a fair trial being a question for the primary judgment of the Court); R (Tromans) v Cannock Chase District Council [2004] EWCA Civ 1036 [2004] LGR 735 at §16 (“no real difference” between unfairness and unreasonableness here: if council did not act fairly here “it could not properly be said to have acted reasonably”). 16.5.3 Systemic fairness as a hard-edged question. R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 [2017] 4 WLR 92 at §38 (“The court [is] required to determine for itself whether a fair procedure was followed. A similar approach [is] taken in relation to the question of whether administrative arrangements are systemically or inherently unfair”), citing R (Detention Action) v First-tier Tribunal [2015] EWCA Civ 840 [2015] 1 WLR 5341; R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481 [2005] 1 WLR 2219 at §8 (court decides whether systemic unfairness); {32.5.2} (systemic unfairness/unfair system). 16.5.4 Apparent bias as a hard-edged question. R (Short) v Police Misconduct Tribunal [2020] EWHC 385 (Admin) [2020] ACD 47 at §74 (apparent bias a question for the Court); In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 (apparent bias) at §33 (“in a case such as this, it is for the Court to consider the facts and to decide for itself 217

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whether having regard to those facts the tribunal or any member of it is disqualified from continuing to sit”). 16.5.5 Other aspects of procedural fairness as questions for the Court. R v SSHD, ex p Q [2000] UKHRR 386, 393F (HRA:ECHR Art 6: “it must be for the court to form its own primary judgment as to whether the right to a fair trial is infringed”); R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities [1986] 1 WLR 1, 6F-G (procedural ultra vires as a question “for the court to determine yea or nay”); Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286, 1293A-G (whether breach of express duty to reach determination within “a reasonable time” a “question of fact” for the reviewing Court “in the light of all the circumstances”); R v Secretary of State for Employment, ex p National Association of Colliery Overmen, Deputies & Shotfirers [1994] COD 218 (questions of fact as to whether adequate consultation took place); {17.3.15} (resolving disputed facts in judicial review: procedural events). 16.5.6 Procedural latitude/procedural discretion. {61.1.27} (procedural fairness: fairness not best practice); R (Miller) v Health Service Commissioner for England [2018] EWCA Civ 144 [2018] PTSR 801 at §55 (Ryder LJ: “The procedure is a matter entirely within the gift of the ombudsman provided that her decision making process is lawful, rational and reasonable”), §93 (“the procedure to be used for an assessment and an investigation are matters for the ombudsman provided that the procedures confirm to broad common law principles of fairness and provide for the decisions that are required in the legislative scheme”); New Saints FC Ltd v Football Association of Wales Ltd [2020] EWHC 1838 (Ch) at §168 (“the process taken by the administrative tribunal is entitled to great weight”); R v SSHD, ex p Doody [1994] 1 AC 531, 560H-561A (question is not whether “some procedure other than the one adopted by the decision-maker would be better or more fair” but that chosen “procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made”), applied in R (Bennion) v Chief Constable of Merseyside Police [2001] EWCA Civ 638 at §39; Bushell v Secretary of State for the Environment [1981] AC 75, 94H-95B (“the procedure to be followed at the inquiry” treated as a matter “left to the discretion of the minister or the inspector”); Local Government Board v Arlidge [1915] AC 120, 132 (body entitled “to follow the procedure which is its own”); General Medical Council v Spackman [1943] AC 627, 634 (GMC as “master of its own procedure”); R v Panel on Takeovers and Mergers, ex p Guinness Plc [1990] 1 QB 146, 184D (“the court will give great weight to the tribunal’s own view of what is fair, and will not lightly decide that a tribunal has adopted a procedure which is unfair”); R (WB) v Leeds School Organisation Committee [2002] EWHC 1927 (Admin) [2003] ELR 67 at §30 (approaching on rationality grounds the question whether committee choosing to exercise “power” to hear representations); {62.1.4} (latitude in consultation); {61.7.10} (powers of procedural fairness: duty to consider exercise of the power).

16.6 Hard-edged review: further aspects. The contrast between those questions which are, and are not, matters for a hard-edged ‘correctness’ review produces a two-tier system: some questions are reviewed on an objective (correctness) standard; others on a ‘soft’ standard (conventionally, reasonableness) with built-in latitude. In fact, all public law standards are objective and whether they have been breached is determined objectively by the Court. Some of those standards allow for merits judgments to be made by the primary decision-maker. For example, the public authority may decide the merits of a response but the Court, without substituting its judgment on the merits, still decides (yes or no) whether objectively the response was reasonable or proportionate. That is why they are objective standards with ‘built-in latitude’. 16.6.1 Judicial review imposes objective standards. {45.2.1} (objective standards); {14.2.1} (nothing personal and objective standards); {16.2} (precedent fact/objective fact as hard-edged review); {16.3} (error of law as hard-edged review); {16.4} (interpretation as hard-edged review); {16.5} (procedural fairness as hard-edged review). 218

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16.6.2 Proportionality as a hard-edged question for the Court. R (Independent Workers Union of Great Britain) v Mayor of London [2020] EWCA Civ 1046 [2020] 4 WLR 112 at §38 (Simler LJ: “it is for the court to conduct an objective assessment of the evidence for itself in order to decide whether an impugned measure is a proportionate means of achieving a legitimate aim, rather than merely exercising a review jurisdiction”); R (Nicklinson) v Ministry of Justice [2014] UKSC 38 [2015] AC 657 at §191 (Lord Mance, describing the Court’s role in determining HRA:ECHR-compatibility: “Ultimately, Parliament has itself assigned to the courts a constitutional role in balancing the relevant interests, public and private”); cf Cusack v Harrow LBC [2013] UKSC 40 [2013] 1 WLR 2022 at §44 (Lord Carnwath: “the issue of proportionality is not hard-edged, but requires a broad judgment as to where the ‘fair balance’ lies”); {58.5.1} (proportionality: an objective question for the court). 16.6.3 Legitimate expectation: hard-edged questions for the Court. Re Finucane’s application for judicial review [2019] UKSC 7 [2019] 3 All ER 191 at §62 (Lord Kerr, discussing the principle of legitimate expectation, where an authority giving “a clear and unambiguous undertaking … will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context”); R (W) v Secretary of State for Education [2011] EWHC 3256 (Admin) [2012] ELR 172 at §40 (Singh J: “the arbiter of whether there is an overriding public interest which justifies a failure to honour [a substantive legitimate] expectation is the court itself. The court is not confined to review of the executive’s decision on the ground of irrationality”); {54.2.12} (sub-category of substantive legitimate expectation cases involving a reasonableness test). 16.6.4 Whether claim ‘clearly unfounded’ an objective question for the court. R (Brown) v SSHD [2015] UKSC 8 [2015] 1 WLR 1060 at §31 (Lord Hughes, explaining that a SSHD decision to certify an asylum or human rights claim as “clearly unfounded” is “if challenged, to be subject to the most anxious scrutiny” whereby “the court substitutes its own conclusion for that of the [SSHD]”), referring to R (Yogathas) v SSHD [2002] UKHL 36 [2003] 1 AC 920 at §34 and R (L) v SSHD [2003] EWCA Civ 25 [2003] 1 WLR 1230 at §§56-58; ZT (Kosovo) v SSHD [2009] UKHL 6 [2009] 1 WLR 348 at §23 (“whether or not a claim is clearly unfounded is only susceptible to one rational answer”). 16.6.5 Hard-edged review in judicial review: other illustrations. R (Soltany) v SSHD [2020] EWHC 2291 (Admin) at §244-246 (whether breach of Padfield principle an objective question for the Court); R (Wright) v Forest of Dean District Council [2019] UKSC 53 [2019] 1 WLR 6562 at §42 (“whether something is a material consideration is a question of law”); R (Liberty) v Director of Legal Aid Casework [2019] EWHC 1532 (Admin) [2019] 1 WLR 5185 at §§35, 43 (whether judicial review having the potential to produce a benefit, pursuant to the statutory criterion, treated as “a matter for the court to determine as a question of law having evaluated the relevant facts”); R (Ingenious Media Holdings plc) v HMRC [2016] UKSC 54 [2016] 1 WLR 4164 at §29 (“the question of breach of confidentiality is one for the court’s judgment”); R (London Christian Radio Ltd) v Radio Advertising Clearance Centre [2013] EWCA Civ 1495 [2014] 1 WLR 307 at §36 (inclining to the view that whether advertisement “directed towards a political end” under the statutory test is an objective question for the judicial review Court); R (Accenture Services Ltd) v HMRC [2009] EWHC 857 (Admin) [2009] STC 1053 at §33 (“the overall judgment whether [action] would be unfair or an abuse of power” as “a matter for the court”); {57.1.16} (reasonableness in other contexts: Court as the decision-maker); {56.2} (obligatory and evaluative relevance/ irrelevance); {56.3} (relevance and weight); {54.2.6} (substantive legitimate expectation: proportionality test (justifying the impact on the legitimate expectations)); {49.3.3} (‘material mistake of fact, leading to unfairness’: the E criteria); {P65} (external vitiation); {39.3.9}-{39.3.15} (statutory formulae). 16.6.6 Hard-edged questions and fresh evidence. {17.2} (fresh evidence in judicial review); {17.2.12} (fresh evidence and precedent fact/objective fact); {17.2.14} (evidence of whether procedural fairness).

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P17 Evidence & fact. Albeit usually conducted on written evidence and without resolving factual disputes, the approach to evidence and adjudication must achieve justice. 17.1 Judicial review evidence 17.2 Fresh evidence in judicial review 17.3 Judicial review and factual disputes 17.4 Oral evidence/cross-examination in judicial review 17.5 Disclosure/further information in judicial review 17.6 Expert evidence in judicial review

17.1 Judicial review evidence. Evidence in judicial review cases is almost always in written form of witness statements, or grounds with a statement of truth, accompanied by relevant documents. Procedural rules, legal principles, and standards of procedural rigour apply to the adducing of evidence. 17.1.1 General rules about evidence. See CPR 32 (evidence). 17.1.2 Rules about judicial review evidence. See CPR 54.16(2) (evidence must be served under a rule or direction or must have the Court’s permission); CPR 8.5 (read with CPR 54.1(2)(e)) (claimant’s evidence filed and served with claim form); CPR PD54A §5.7(1), (4) (claimant’s documents including evidence in support of extension of time); CPR 54.14(1)(b) (and CPR PD54A §10.1) (defendant/interested party’s evidence in response), 54.17(1)(a) (evidence from intervener); Administrative Court: Judicial Review Guide (2020 edition) at §20.1 (witness evidence), §20.1.1 (“Witness statements must … be in the witness’ own words … state which of the statements in it are made from the witness’ own knowledge, and which are matters of information or belief (also stating what is the source of matters of information or belief)”), §20.1.2 (statement of truth in required form). 17.1.3 Grounds with a statement of truth. CPR 22 (statements of truth); R (Maritime Heritage Foundation) v Secretary of State for Defence [2019] EWHC 2513 (Admin) [2019] ACD 140 at §4 (“in a judicial review the Statement of Facts can simply include a statement of truth, and there is no procedural requirement for witness evidence”, but “very surprising not to have a witness statement” where claimant alleging unfairness from change of position); R (Jetly) v SSHD [2019] EWHC 204 (Admin) at §5 (absent a statement of truth verifying factual content, claim form can be struck out under CPR 22.2(1)). 17.1.4 Procedural rigour: last-minute evidence. R (Visvaratnam) v Brent Magistrates’ Court [2009] EWHC 3017 (Admin) at §3 (Oppenshaw J: “The rules of this court plainly provide that statements in response to these applications [for judicial review] must be served in proper form in time. … It is not … in the least bit satisfactory for witness statements to appear the evening before the case is scheduled to be heard. We, therefore, have taken the view that we should not pay attention or have any regard to the witness statement served so late”). 17.1.5 Procedural rigour: argumentative, overburdensome and repetitive documents. R (Thurloe Lodge Ltd) v Royal Borough of Kensington & Chelsea [2020] EWHC 2381 (Admin) at §14 (David Elvin QC: “Care … needs to be taken with the length of the bundle which in this case … was too lengthy … and included many documents that were neither referred to nor relied upon for the purposes of this challenge”); Bahamas Hotel Maintenance & Allied Workers v Bahamas Hotel Catering & Allied Workers [2011] UKPC 4 at §23 (Lord Walker, explaining that witness evidence in judicial review proceedings was “argumentative and repetitive [and] failed to cast any light on the real issues”), §42 (it was “unnecessary, pointless and wasteful” as well as “extremely confusing” that some contemporaneous documents exhibited several times); R (Metro Construction Ltd) v Barnet LBC [2009] EWHC 2956

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(Admin) at §40 (Collins J: “It is essential that trial bundles should be agreed and should include no more than each party considers to be really necessary for the judge to have. … The court is being overwhelmed with an excess of paper”); Alex Lawrie Factors Ltd v Morgan The Times 18 August 1999 (purpose of witness statement is for witness to give relevant evidence in own words; not a vehicle for lawyer to put forward complex legal argument); R v Ministry of Agriculture Fisheries and Food ex p National Farmers Union [1995] 3 CMLR 116, 118 (“widespread tendency … to overburden the court with documents and with argumentative [witness statements]”); R (Crouch) v South Birmingham Primary Care Trust [2008] EWHC 605 (Admin) (court inundated with large amount of unnecessary material); R (Parents for Legal Action Ltd) v Northumberland County Council [2006] EWHC 1081 (Admin) [2006] ELR 397 at §87 (need for careful thought in preparation of hearing bundles; and “a properly constructed Core Bundle would have been of inestimable advantage”); R v Secretary of State for the Environment, ex p Merton LBC The Times 22 March 1990 (large quantities of entirely superfluous papers); Bruce v Worthing Borough Council (1994) 26 HLR 223, 224 (“unnecessary compilation of files”); R (Prokopp) v London Underground Ltd [2003] EWCA Civ 961 [2004] Env LR 170 at §52 (“grotesque waste” of trees, public money and “judicial time and energy in laying one’s hand on the few documents and authorities which are relevant. It is the duty of Counsel and solicitors to go through material in order to decide what is relevant”), §90. 17.1.6 Procedural rigour: evidence containing inappropriate comment. R (C) v Secretary of State for Justice [2008] EWCA Civ 882 [2009] QB 657 at §24 (criticising “aggressively justificatory tone”); R (C) v Brent, Kensington and Chelsea and Westminster Mental Health NHS Trust [2002] EWHC 181 (Admin) (2003) 6 CCLR 335 at §13 (claimant’s evidence containing “impermissible comment and argument”); Richard Read (Transport) Ltd v Secretary of State for the Environment [1995] 3 PLR 59, 65D-E (ill-judged comments); R v Poole Borough Council, ex p Ross (1996) 28 HLR 351, 360 (“entirely inappropriate” for defendant to put in evidence asserting confidence that the decision was fair and untainted); A v Kirklees Metropolitan Borough Council [2001] EWCA Civ 582 [2001] ELR 657 at §17 (“not appropriate” to express a view on whether omitted evidence would have made a difference, the issue turning “not on what the decision-maker may with hindsight say he would have made of the evidence but on the objective question whether the evidence was capable of having made a difference”), §20 (“not a topic for ex post facto evidence”); R v Tunbridge Wells Health Authority, ex p Goodridge The Times 21 May 1988 (individual’s view irrelevant); R v Leeds City Council, ex p Hendry (1994) 6 Admin LR 439, 442E-H (unsupported affidavit assertion). 17.1.7 Procedural rigour: appropriate extent of defendant’s evidence. R (Terra Services Ltd) v National Crime Agency [2019] EWHC 1933 (Admin) at §19 (“What the court normally expects to happen, if permission is granted …, is that the defendants will then set out fully and frankly an accurate description of what has happened so far as necessary to resolve the issues in the claim for judicial review in a witness statement. Guidance was given by Lord Bingham in Tweed, in particular at paragraph 4, as to what should happen in relation to documents. Very often, as he said, the appropriate course to take will be to exhibit the original documents rather than simply to try to summarise them. But there can be exceptions to that, for example, where confidentiality requires otherwise”); R v Gloucester Crown Court, ex p Chester [1998] COD 365 (deprecating position where nothing from defendant court to indicate basis of impugned decision or stance in relation to the judicial review proceedings, whether by letter or otherwise); R v Feltham Justices, ex p Haid [1998] COD 440 (see transcript) (response should “make it clear” that claimant’s witness statement has been read and what is not accepted); R v Humberside County Council, ex p Bogdal [1991] COD 66 (once claimant seeking to quash decision, Court not excluded from having from defendant all relevant background documents); R v Southwark LBC, ex p Campisi (1999) 31 HLR 560, 565 (inappropriate to have “a lawyer afterwards reconstructing from various bits of mosaic to be found in various files, something which could have been a perfectly reasonable decision”); {64.4} (timing of reasons: retro-reasons); {64.3.8} (drafting reasons: proper limits of the lawyer’s function). 221

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17.1.8 Procedural rigour: the need to exhibit primary/best evidence. Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2007] 1 AC 650 at §4 (Lord Bingham: “Where a public authority relies on a document as significant to its decision, it is ordinarily good practice to exhibit it as the primary evidence … the document itself is the best evidence of what it says”), §33 (Lord Carswell: “A party whose [witness statements] contain a reference to documents should … exhibit them in the absence of a sufficient reason (which may include the length or volume of the documents, confidentiality or public interest immunity)”), §57 (Lord Brown, endorsing the practice of exhibiting the main documents); R v SSHD, ex p Gashi [1999] INLR 276, 305C-H (“rationalisation” provided by defendant’s Counsel not corresponding to anything in the written evidence to show that the Secretary of State or his officials had followed this line of reasoning); {17.5.6} (producing primary documents/best evidence). 17.1.9 Materials/evidence and HRA/proportionality. {37.1.21} (whether proportionality requires evidence); {58.4.3} (HRA/proportionality: relevance of whether defendant addressed the issue); R (F (A Child) v SSHD [2010] UKSC 17 [2011] 1 AC 331 (proportionality of statutory scheme) at §18 (appropriateness of “background information tending to show, for instance, the likely impact of the statutory measure”, including Hansard), §§53-56 (Hansard and statistical evidence); Wilson v First County Trust Ltd [2003] UKHL 40 [2004] 1 AC 816 (discussing the admissibility of Hansard material in addressing ECHR-compatibility of primary legislation) at §§63-67, 116-117, 142. 17.1.10 Evidence and legitimate expectation: overriding public interest. Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32 [2012] 1 AC 1 at §42 (“unless an authority provides evidence to explain why it has acted in breach of a representation or promise made to an applicant, it is unlikely to be able to establish any overriding public interest to defeat the applicant’s legitimate expectation”). 17.1.11 Hearsay. See CPR 33 and CPR 33PD; R v Camden LBC, ex p Adair (1997) 29 HLR 236, 248 (fact that witness statement containing hearsay evidence not a good enough reason to exclude it); R v SSHD, ex p Lillycrop 27 November 1996 unreported (civil servant entitled to give evidence explaining basis of decision-maker’s approach, provided that sources of knowledge and belief stated, and given “the limited extent to which such evidence is likely to be acted upon by a Court”); R v Secretary of State for the Environment, Transport and the Regions, ex p Alliance Against the Birmingham Northern Relief Road 23 March 1999 unreported (hearsay evidence not inappropriate); R v SSHD, ex p Rahman [1998] QB 136 (entitled to look at hearsay evidence which was before the decision-maker, even when deciding precedent fact). 17.1.12 Legal advice privilege. R (Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35 [2020] 2 WLR 1215 (issues as to legal advice privilege, arising out of disclosure application in judicial review proceedings). 17.1.13 Parliamentary privilege. {34.4.6} (judicial review and proceedings in Parliament: Parliamentary privilege (Bill of Rights)); {29.4.14} (reliance on Select Committees); R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213 at §158 (describing “circumstances in which reference can properly be made to proceedings in Parliament and where therefore this will not constitute impermissible ‘questioning’ of statements made in Parliament: (1) The Courts may admit evidence of proceedings in Parliament to prove what was said or done in Parliament as a matter of historical fact where this is uncontentious: see Pre